ALTAF Vs. STATE OF U P

JUDGEMENT

(1.) Challenge in this appeal is to the judgment and order dated 9.02.2012 passed by Smt. Kamini Pathak, the then Addl. Sessions Judge (Ex-Cadre), Rampur in S.T. No. 422 of 2008 (State Vs. Altaf) whereby the appellant had been convicted for the offence punishable under section 376 IPC and had been sentenced to undergo seven years' rigorous imprisonment and fine of Rs. 5,000/- with default stipulation.

(2.) Shorn of details, the prosecution story is that on 2.8.2008 Mehndi Hasan s/o Pearey r/o village Kheda P. S. Shahabad submitted a written report at 8.40 a.m. in police station Shahabad stating that yesterday he along with his wife had gone towards Bilari in his relations and his 14-years' old victim (name not given due to bar of section 228-A IPC) was alone at home. Yesterday at about 7.00 p.m. his co-villager Altaf called his daughter in dilapidated house of Lalu and forcibly committed rape with her. On hearing her weeping cries his brother Khurshid and nephew Sharafat went towards Lalu's house, then accused Altaf who was ravishing his daughter, made his escape good. This incident was conveyed to him by his brother on phone in night at his in-laws' house. In the night at about 10.00 p.m. he returned back and then his daughter narrated the incident to him. The complainant along with family including the victim reached at the police station and handed over the written report, on the basis whereof case at crime no. 1058/08 u/s 376 IPC was registered against the accused, investigation whereof was entrusted to SI Ratan Singh. Sri Singh interrogated the complainant at the police station and then reached at the spot. He interrogated Nazir Ali, Sharafat and at their instance prepared site plan. Witnesses Nabi Husain, Ram Bahadur, Shiv Singh, Nawab and Mahilal were also interrogated. On 3.8.2008, the statement of the victim, her mother and Khurshid were recorded by the investigating officer. The salwar and kurta which the victim was wearing at the time of incident were taken through memo in presence of witnesses Sikander and Zakir. The complainant also handed over the apparels (a pant, an underwear, a belt, a purse) and a pair of chappal of the accused which were left by him at the spot while he fled away from after seeing the witnesses. Ere that victim was sent for medical examination and she was examined by lady Dr. Chitra Jauhari on 2.8.2008 at 1.30 p.m. She found that the height of the victim was 4 ft. 6 inches, weight - 40 Kgs., teeth - 14/14. Breast, axillary and pubic hairs were present. She did not find any mark of injury on any part of her body. On local examination also no mark of injury was found on her private parts. Vagina admitted one finger. Hymen was represented by old healed tags. There was no discharge or bleeding. Vaginal smear was taken and sent for pathological examination. X-ray of right elbow joint, wrist and knee joint was advised for ascertainment of her age. In pathological examination of vaginal smear no sperm alive or dead was found. Dr. R. K. Sharma, Radiologist, District Hospital, Rampur conducted x-ray examination of the victim. He found that all epiphysis of right elbow joint have fused with their respective shafts. In x-ray of knee epiphysis of the lower end of femur and upper end of tibia were found fused while and upper end of fibula were not fused with respective shafts. The x-ray of right writ joint revealed that epiphysis of the distal ends of radius and ulna bones have not fused with their respective shafts. On the basis of the report of the Readiologist and the pathology report, Dr. Chitra Jauhari vide supplementary report dated 6.8.2008 had opined that the girl's age was between 16 to 17-years and no definite opinion about rape can be given. The salwar and kurta of the victim were sent for examination to Forensic Science Laboratory Agra, who vide report dated 26.8.2008 have found sperms, human blood and semen on the salwar of the victim while no blood or semen was found on her kurta. The investigating officer arrested the accused on 11.8.2008 and after completing the investigation submitted charge-sheet against the accused.

(3.) After committal of the case to the Court of Session charge for the offence punishable u/s 376 IPC was framed against the accused-appellant who abjured the guilt and claimed trial.