DATARAM Vs. STATE OF U P

JUDGEMENT

(1.) UNDER challenge in the instant criminal appeal is the judgment dated 17.02.2011 and order dated 19.02.2011 passed by learned Sessions Judge, Lakhimpur Kheri in Sessions Trial No. 38 of 2007, arising out of Case Crime No. 922 of 2005, Police Station Gola, District Kheri, whereby the present appellant Dataram 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.1,000/ - with default stipulation of fifteen days' additional simple imprisonment. He was further convicted for the offence under Section 366 IPC and was sentenced to undergo rigorous imprisonment for a period of four years and also with fine of Rs.1,000 with default stipulation of fifteen days' additional simple imprisonment. In this case, accused Mulayam Verma and Kamlesh Verma were also tried. However, they were acquitted of the charges levelled against them.

(2.) IN brief, the case of the prosecution was that the minor daughter of the complainant aged about 16 years, who was a student of Class XI in Krishak Samaj Inter College, Gola had gone to her school on 07.10.2005 in the morning at about 08.00 AM. When she did not return to her home till evening then the complainant started her search but when his efforts failed then ultimately on 09.10.2005 at 1930 hours, he lodged the first information report of this case at the concerned police station. The investigation was entrusted to PW -3 Mohan Lal Verma. During investigation, other two accused persons surrendered but neither the appellant Dataram nor the victim could be recovered. Therefore, he filed a charge sheet under Sections 363 and 366 IPC. Thereafter on 28.05.2006, the victim herself appeared at the police station along with her parents. Her statement was recorded by another Investigating Officer and she was medically examined but no supplementary charge sheet by the second Investigating Officer was filed in this case. It transpires from the record that Section 376 IPC was added in the original charge sheet filed by the earlier Investigating Officer Mohan Lal Verma, who has expressed his ignorance as to how this section was added in the charge sheet filed by him. The date of birth of the victim was claimed to be 28.08.1990. The victim in her statement narrated the story that she was taken by the accused persons on the pretext that her grandmother is ill. Here it is pertinent to mention that the complainant and the appellant Dataram, both, were the original residents of the village Kaithola but about one and half year prior to the incident, the complainant with his family started living at Gola while his brother continued to live in village Kaithola. The victim was not taken to village Kaithola but she was taken to Shahjahanpur from where other two accused persons returned back and the victim went along with the present appellant Dataram to Dehradun and lived with him in Dehradun for several months and thereafter the appellant brought her back to Lucknow from where the victim alone went to Gola and narrated the story to her parents.

(3.) THE defence of the appellant was that he has been falsely implicated in this case and alternatively it has also been pleaded that the victim was major. Her wrong date of birth has been recorded in the relevant educational records. She was about 20 years' of age and she was a consenting party.