JHAGAROO Vs. STATE OF U P

JUDGEMENT

(1.) CHALLENGE in the instant appeal is the judgment and order dated 05.04.2002 passed by Additional Sessions Judge/ Fast Track Court, Court no. 3, Sitapur in ST No. 164 of 2000 (State vs. Jhagroo), arising out of case crime no. 301 of 1999, under Section 376, 506 IPC whereby the appellant was convicted for the offences under Section 376 and 506 IPC and was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 1,000/ - with default stipulation of one month's additional simple imprisonment for the offence under Section 376 IPC and for the offence under Section 506 IPC, he was convicted and sentenced to undergo rigorous imprisonment for a period of one year.

(2.) BRIEF facts, necessary for the purpose of the instant appeal are that the minor daughter of the complainant, aged about 15 years (hereinafter referred to as 'the victim'), on 29.10.1999 at about 01.30 pm, had gone to attend the call of nature in the fields. Appellant Jhagaroo was present there. He aimed a countrymade pistol on the victim and threatened her with dire consequences, in case, she raised any alarm and thereafter rape was committed with her. By that time, Kalim and Rehmat along with some villagers reached there, due to which appellant Jhagaroo ran away from there leaving his full -pant and slippers. The complainant, at that time, had gone for his Namaz. After coming back from his Namaz, the complainant came to know about this incident. He was going to lodge the FIR but because of the trap laid by the appellant, he could not go to the Police Station and thereafter due to his fear he directly went to the Superintendent of Police, Sitapur and gave his report on the same day. Under the orders of the Superintendent of Police, Sitapur, passed on the same day, the FIR of this case was lodged on 29.10.1999 at about 10.15 pm. During investigation, the place of occurrence was inspected by the Investigating Officer and the site plan was prepared. The slippers and full -pant of the appellant were taken into custody by the Police and its seizure memo (Ex. Ka -6) was prepared. The victim was referred for her medical examination, which took place on 30.10.1999 at 06.00 pm in District Female Hospital, Sitapur.

(3.) AS per her medical examination report (Ex. Ka -4), no mark of injury, anywhere on the body of the victim, was found. Axillary and pubic hairs were present which were scanty and brown in colour, Breasts were developing. On an internal examination, hymen was found torn and old healed. Vagina admitted two fingers easily, no bleeding was found, no mark of injury on private parts was present and uterus was of small size. No tenderness was present. Vaginal smear was taken and sent for pathological examination and X -ray was advised for the determination of her age. On the basis of pathological test and X -ray report, the radiological age of the victim was opined to be nineteen years and no definite opinion regarding rape could be given. After completing the investigation, charge sheet against the present appellant was filed. The defence of the appellant was of total denial and his false implication due to enmity and village partibandi.