KAILASH Vs. STATAE OF U P

JUDGEMENT

(1.) UNDER challenge in this appeal is the judgment and order dated 30.5.2012 passed by the learned Additional Sessons Judge, Court No. 13, Lucknow in Sessions Trial No. 322 of 2009, arising out of case crime no. 335 of 2008, Police Station Mall, District Lucknow whereby the present appellant Kailash was convicted for the offence under Section 376 I.P.C. and was sentenced to undergo rigorous imprisonment for a period of ten years and also with fine of Rs. 10,000/ - with defulat stipulation of one year additional imprisonment.

(2.) IN brieft the case of the prosecution was that on 18.11.2008 at about 5:30 p.m., the daughter of the complainant (hereinafter referred as the victim) aged about 12 years was coming back from her fields bringing the grass. The appellant reached there, caught hold of the victim and threw her pile of grass and dragged her inside the grove of Rafeeq and after pushing the victim on the ground, started outraging her modesty. The victim was crying. The complainant was also going towards the guava grove. Hearing the noise of her daughter, he also reached there and saw that the grass pile, was lying and the victim was not there. Then hearing the cries, he went inside the grove of Rafeeq, then he found that the appellant was committing rape with the victim. The complainant challenged due to which the appellant, leaving the victim, ran away from there. The complainant also chased him but he could not apprehend the appellant. Thereafter, the complainant brought her daughter to his house. F.I.R. of this case was lodged on 20.11.2008 at about 18:15 hours, the distance from the place of occurrence was about six kilometers. After registration of the case, the victim was referred for medical examination. Her medical examination took place on 21.11.2008 at Awanti Bai Women Hospital, Lucknow at 4:30 p.m. As per her medical examination, no mark of injury was seen on any part of the body. Axillary and pubic hairs were present developing. On internal examination, no mark of injury was seen on her private part of the body. Vagina was having menses bleeding. Hymen was old torn and healed. No injury was seen inside the vagina. Vaginal Smear slides were prepared. The victim was referred for x -ray for determination of her age. After the aforesaid tests, no definite opinion regarding rape could be given and radio -logical age of the victim was reported to be 11 years.

(3.) THE case of the defence was that brother in law of the appellant had taken mango grove of the complainant on mortgage for a period of ten years. The appellant used to look after the said grove. After lapse of only three years, the complainant started demanding back the said grove . It led to some altercation with the appellant. Due to which he has been falsely implicated. During course of investigation and in the statement recorded under Section 313 Cr.P.C., the appellant admitted that he met the victim near the said grove and only outraged her modesty and false charge of rape has been made against him. It has further been stated that the victim was major. Her date of birth was entered in the Primary School, Kudakhar as 1.7.1992, which has been proved by DW -1 Archana Singh, Principal of the said school.