SUNIL KUMAR MISHRA Vs. STATE OF U P

JUDGEMENT

(1.) UNDER challenge in the instant criminal appeal is the judgment and order dated 26.02.2011 passed by learned Additional Sessions Judge, Court No.2, in Sessions Trial No.488 of 2009 arising out of Case Crime No.21 of 2009, Police Station Hargaon, District Sitapur, whereby the appellant -Sunil Kumar Mishra was convicted for the offence under Section 376 IPC and was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs.3000/ - with default stipulation of three months' additional imprisonment.

(2.) THE facts, necessary for the disposal of the present appeal, are that the victim who was aged about 13 years had gone to bring bathua across the canal. While she was coming back after plucking up bathua then at about 2.00 p.m. when she reached by the side of the sugarcane field of Raja Verma then the appellant reached there and asked the victim that you have taken sugarcane from his field and dragged her inside the sugarcane field by holding her hand and committed rape with her inside the sugar cane field. When the victim came out of the sugarcane field then by that time the complainant Nazar Ali and Hari Singh and Mauji Lal also reached on the bank of the canal. Seeing the victim crying they reach near her then the victim narrated the incident to them. The complainant alongwith his daughter came to the police station on the same day and lodged the FIR of this case on 03.01.2009 at 1830 hours. The distance of the place of occurrence from the police station, as per chik report, was 10 kilometers. After registration of the case the victim was referred for medical examination. Her medical examination was conducted by Dr. Sushma Karnwal, women hospital, Sitapur on 14.01.2009 at 8.00 p.m. As per medical examination report her height was 131 cm. weight was 32 kgs. teeths were 7+7/6+7. Axillary hairs were very scanty, public hairs were present, her breasts were developed. No mark of injury was found on her private part in and around. Hymen was old torn and healed. Vagina admitted one finger easily. Vaginal smear slide was prepared and sent for pathological test and victim was referred for X -ray for determination of her age. On the basis of aforesaid test supplementary report was prepared and age of the girl was reported to be between 14 -15 years and no definite opinion regarding sexual assault could be given. The Investigating Officer inspected the place of occurrence on 23.01.2009 and prepared its site plan and after concluding the investigation charge -sheet was filed against the appellant. During investigation, the salwar which the victim was putting on at the time of the occurrence was also taken into custody by the police and its memo Exhibit Ka -9 was prepared.

(3.) THE case of the defence was of his false implication, under the pressure of the Village Pradhan, because the appellant had lodged a complaint against the village pradhan prior to the incident and because of that enmity pradhan got this case concocted.