GHANSHYAM YADAV Vs. STATE OF U P

JUDGEMENT

(1.) UNDER consideration in the instant appeal is the sustainability of the judgment and order dated 24.01.2009 passed by Additional Sessions Judge/F.T.C. -I/ Special Judge SC/ST Act, Sultanpur in S.T. No. 42 of 1996, arising out of Case Crime No. 41 of 1995, P.S. - Koorebhar, District - Sultanpur, whereby the present appellant was convicted for the offence under Section 376 IPC and was sentenced to undergo rigorous imprisonment for a period of ten years and also with fine of Rs. 5,000/ - and for the offence under Section 3 (I) (X) of the SC/ST Act, he was sentenced to undergo rigorous imprisonment for a period of one year and also with a fine of Rs. 500/ -. In case of default of payment of fine mentioned above, the appellant was directed to undergo simple imprisonment for a period of six months. Both the sentences were directed to run concurrently.

(2.) IN brief, the case of the prosecution was that the victim, who happens to be the minor daughter of the complainant Ramdev, had gone to bring "bathua" from the field on 24.02.1995 at about 06.00 pm. Finding the victim alone, the present appellant forcibly caught hold of her and pushed her in the wheat field and made an effort to commit rape with her. When the victim cried, then, the appellant closed her mouth and also gagged her mouth with her dupatta and thereafter committed rape with her. He also threatened her with dire consequences, in case this incident is told to anyone. While the victim was coming back from the place of incident, then she met her mother and she narrated this story to her mother. On 25.02.1995, the complainant got the FIR of this case scribed by Raj Karan Sai and on the basis of the same, the case was registered in the next morning on 25.02.1995 at 06.30 am. The distance from the place of occurrence to the police station, as per chick report, was fifteen kilometres.

(3.) THE victim was referred for her medical examination. Her medical examination took place on the same day at about 02.40 pm at Women Hospital, Sultanpur and as per her medical examination report, axillary and pubic hairs were brown and thin. Her height was about 4 ft. and 10 inches, weight was 35 kg and teeth were 14/14, breast module were developed, hymen was torn, old signs present, Vagina admitted two fingers easily. Vaginal smear was taken and she was referred for X -ray for determination of her age. On the basis of X -ray and Pathological test, she was reported to be about 15 years of age and she was found to be used to sexual intercourse. No definite opinion about rape could be given. The Investigating Officer inspected the place of occurrence and after completing the investigation, charge sheet was filed against the present appellant.