DURGESH KUMAR SONAR Vs. STATE OF U P

JUDGEMENT

(1.) UNDER challenge in the instant criminal appeal is the judgment and order dated 12.7.2011 passed by the learned Special Judge, SC/ST Act, Unnao in Special Sessions Trial No. 120 of 2002 arising out of Case Crime No. 145 of 2001, Police Station Makhi, District Unnao, whereby the present appellant Durgesh Kumar was convicted for the offence under Section 376 I.P.C. 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 three months additional imprisonment. However, he was acquitted of the charge for the offence under Section 3 (1)(xii) of the SC/ST Act.

(2.) IN brief, the facts necessary for the disposal of the instant appeal are that complainant Parmeshwar lodged an F.I.R. at Police Station Makhi on 2.6.2001 at 9:10 a.m. alleging therein that he is resident of village Mirzapur, Police Station Makhi and is Raidas by caste. Appellant Durgesh Kumar happens to be Sunar by caste. He also lives in the same village and is resident of village Magarwada, Police Station Kotwali and carries on a business of Jewellery. He frequently used to come to the house of the complainant. On 29.5.2001, the appellant was sleeping in the house of the complainant. The victim, who happens to be daughter of the complainant, aged about 16 years, was sleeping on the roof of the house. In the night at about 10:00 p.m., the appellant climbed at the roof of the house and committed rape with her. On hearing the alarm raised by the victim, the complainant went on the roof of his house then the appellant ran away from there. The F.I.R. of this case was not lodged immediately because of the apprehension of the social stigma, but ultimately on 2.6.2001, the complainant decided to lodge the F.I.R. After registration of the case, the victim was referred for her medical examination. Her medical examination took place on 2.6.2001 at U.S.D. Women's Hospital, Unnao by PW -4 Dr. Anjali Pant and according to her medical examination report, no mark of injury was found on her private part or any part of her body. Hymen was old torn and healed. Vagina admitted two fingers easily. Vaginal smear was taken and sent for pathological test and the victim was referred for x -ray for determination of her age. On the basis of these tests, radio -logical age of the victim was reported to be 16 years and no definite opinion regarding rape was given. The Investigating Officer inspected the place of occurrence. During investigation, Salwar of the victim was taken into custody as some spots were seen on it and it was sent to Forensic Science Laboratory. However, as per report of the Central Forensic Science Laboratory dated 7.9.2001, nothing abnormal was found in the said Salwar.

(3.) AFTER completing the investigation, charge sheet was filed against the appellant.