ANIL KUMAR BAJPAI Vs. STATE OF U P

JUDGEMENT

(1.) UNDER challenge in the instant criminal appeal is the judgment and order dated 22.09.2005 passed by learned Special Sessions Judge (P.C. Act), Lucknow in Sessions Trial No.1639 of 2000 arising out of Case Crime No.109 of 1995, Police Station Mahila Thana, District Lucknow, whereby the appellants -Anil Kumar Bajpai and Pappu Bajpai were convicted for the offence under Section 376 (2) (g) and 506 IPC and for the offence under Section 376 (2) (g) they were sentenced to undergo rigorous imprisonment for a period of ten years and also with fine of Rs.10,000/ - each with default stipulation of two years' additional rigorous imprisonment. For the offence under Section 506 IPC both the appellants were sentenced to undergo rigorous imprisonment for a period of one year. Both the sentences were directed to run concurrently.

(2.) THE facts necessary for the disposal of the present appeal are that on 29.09.1995 at 10.30 p.m. the complainant Smt. Neelam Awasthi gave a typed application addressed to Senior Superintendent of Police, Lucknow, alleging therein that on 28.09.1995 in the night at about 10.30 p.m. the appellant Anil Kumar Bajpai son of Kamad Pratap Bajpai and his brother -in -law (Saala) Pappu and Kamad Pratap Bajpai were demolishing the wall of her courtyard situated on the back side of her residence. The appellant Anil Kumar Bajpai resides in the neighbourhood of the complainant and at that time Anil had a hammer and Pappu was having the licenced gun of his father. Hearing noise, the complainant and her husband came out of the room then these persons threatened them with dire consequences. Feeling afraid, these persons started raising alarm from the roof of their house then Kamad Pratap Bajpai closed the door of the house and Anil Bajpai and Pappu committed rape with the minor daughter of the complainant aged about 13 years. This gang rape was committed by the two by putting gun on her and complainant side was also threatened not to disclose this incident to anyone. Since the husband of the complainant, because of the fear had rushed towards the police station, therefore, this incident was informed by the wife to her husband. On the basis of the FIR case was registered and investigation proceeded and salwar, kurta and underwear of the victim were seized by the police. The victim was referred for medical examination and her medical examination took place on 30.09.1995 at Mahila Hospital, Lucknow, at 1.00 a.m. No mark of injury over any part of the body was found. Pubic and axillary hairs were developed and breasts were well developed. In her internal examination no mark of injury was seen on her private part and hymen was old torn at 2 O' clock position and healed. Vagina admitted two fingers easily. Vaginal smear was taken and sent for pathological test. The victim was referred for X -ray for determination of her age. On the basis of the said tests, by means of supplementary report, the doctor opined that the victim was used to sexual intercourse and recent intercourse has been done and no definite opinion about rape could be given. Radiological age of the victim was reported to be about 16 -17 years. After investigation the police submitted final report in this case on 02.01.1996. Against the said final report the protest petition was filed by the complainant which was treated as complaint and vide order dated 15.12.1998 the appellants were summoned to face trial.

(3.) IN order to prove its case, the prosecution has examined PW -1 the complainant, Neelam Awasthi, PW -2 the victim, PW -3 Sub Inspector Bhooli Singh Chauhan, initial Investigating Officer of this case, PW -4 Dr. Nirupama Singh who had conducted the medical examination of the victim, PW -5 Constable Kumari Tamanna who has proved chik report and GD of this case as a secondary evidence.