RAJESH Vs. STATE OF U P

JUDGEMENT

(1.) UNDER challenge in the instant appeal is the judgment and order dated 18.11.2005 passed by the learned Additional Sessions Judge, Court No. 8, Sitapur in Sessions Trial No. 378 of 1998 arising out of Case Crime No. 825 of 1995, Police Station Kotwali Sitapur whereby appellant Rajesh was convicted for the offences punishable under Sections 363, 366, 368 and 376 I.P.C. and appellant Amrika was convicted for the offence punishable under Section 368 I.P.C., however, he was acquitted of the charges under Sections 363 and 366 I.P.C. For the offence under Section 368 I.P.C. both the appellants were sentenced to undergo rigorous imprisonment for a period of seven and also with fine of Rs. 2,000/ - each. Appellant Rajesh was convicted for the offence punishable under Section 363 I.P.C. and was sentenced to undergo seven years rigorous imprisonment and also with fine of Rs. 2,000/ - for the offence under Section 366 I.P.C., he was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 2,000/ - and for the offence punishable under Section 376 I.P.C., he was sentenced with rigorous imprisonment for a period of seven years and also with fine of Rs. 4,000/ -. In default of payment of fine on all counts, both the appellants were sentenced to undergo simple imprisonment for a period of one year.

(2.) IN brief, the facts necessary for the disposal of the instant appeal are that complainant Darshan Lal, who happens to be the real uncle of victim, lodged an F.I.R. on 30.9.1995 alleging therein that his daughter aged about 14 years (hereinafter referred to as victim) had gone with her mother to her maternal grand father's house situated in Village Zilamau. On 26.9.1995 in the morning accused appellant Rajesh, his brother Rakesh and Radha, who were named in the F.I.R. have enticed away the victim. The victim was recovered on 25.10.1995 from the house of appellant Amrika by the police in the presence of independent witnesses Prakash Narayan Singh, Ram Shankar Mishra, Village Pradhan and also the complainant. Thereafter she was given in the custody of complainant. During investigation, statement of the victim under Sections 161 and 164 Cr.P.C. was recorded wherein she has supported the prosecution version. She was referred for medical examination. Her medical examination was conducted on 25.10.1995 at about 9:00 p.m. in Duffrin Hospital, Sitapur. In her medical examination, no injury was found on her person or on her private part. Secondary sex characters were developed. Vaginal smear was taken for pathological test and she was referred for x -ray for the purpose of determining her age. As per supplementary report, no definite opinion regarding rape could be given and she was reported to be of 17 years of age. After concluding the investigation, the police submitted charge sheet against the present two appellants and other two accused persons, who were named in the F.I.R., were not chargesheeted.

(3.) THE case of the defence was that the victim was major. She had gone out of her own freewill and had solemnized marriage with appellant Rajesh and it was only under the influence of her parents, she had given evidence against the appellants. The statement of the victim, under Section 164 Cr.P.C. was recorded after two months of her recovery and this statement was given only under the influence of her family members.