CHAND MOHAMMAD Vs. STATE OF U P

JUDGEMENT

(1.) THESE two criminal appeals [Criminal Appeal No.189 of 2012 -Chand Mohammad Vs. State of U.P. and Criminal Appeal No.188 of 2012 -Mukaddar Vs. State of U.P.] arise out of same judgment and order dated 12.01.2012 passed by the Ist Additional Sessions Judge, Gonda, therefore the same are being disposed of by a common judgment.

(2.) UNDER challenge in the instant criminal appeals is the judgment and order dated 12.01.2012 passed by learned Ist Additional Sessions Judge, Gonda in Sessions Trial No.184 of 2010 arising out of Case Crime No.60 of 2009, Police Station Kotwali Colonelganj, Gonda, District Gonda, whereby the appellant -Mukaddar was convicted for the offence under Section 363 IPC only and appellant Chand Mohammad was convicted for the offences under Sections 363, 366 and 376 IPC. For the offence under Section 363 IPC they were sentenced to undergo rigorous imprisonment for three years with fine of Rs.2000/ - with default stipulation of six months additional imprisonment and for the offence under Section 366 IPC appellant Chand Mohammad was sentenced to undergo rigorous imprisonment for a period of seven years with fine of Rs.2000/ - with default stipulation of six months additional imprisonment and for the offence under Section 376 IPC appellant Chand Mohammad was sentenced to undergo rigorous imprisonment for a period of ten years with fine of Rs.2000/ - with default stipulation of six months additional imprisonment. Both the sentences were directed to run concurrently.

(3.) THE facts necessary for the disposal of the present appeals are that on 28.02.2009 the complainant Raghunath Soni lodged an FIR, scribed by Onkar Nath, at Police Station Colonelganj, District Gonda, stating therein that on 27.02.2009 his wife and other members of his family had gone to attend some function. He alongwith his youngest daughter (hereinafter referred as victim) aged about 14 years were present in the house. At about 7.00 p.m. the victim provided dinner to him at that time the appellants Chand Mohammad and his brother Mukaddar called the victim and went away with her. When the complainant came out of his house. He found the mother of the appellants standing near the house then he inquired her where the victim has been taken by the appellants. Then she expressed her ignorance and said that she was also inquiring about them. The complainant inquired about his daughter from several persons. One Tara Chand told him that the victim has been enticed away by the appellants Chand Mohammad and his brother Mukaddar and by their mother. When the victim could not be traced out then on the next day of the occurrence, the complainant lodged the FIR of this case. During investigation the police got an information that the victim alongwith Chand Mohammad was in Bombay. The police party went to Bombay alongwith complainant and on 03.03.2009 the victim was recovered in Bombay and she was given in the custody of her parents on 05.03.2009. She was medically examined at District Hospital, Gonda and in her medical examination no mark of injury on her body on her private part was found. Vagina admitted two fingers. There was no tenderness or bleeding and vaginal smear slide was prepared and the victim was referred for X -ray for determination of her age. After the aforesaid test, by means of supplementary affidavit, the victim was reported to be used to sexual intercourse and her age was reported to be 17 years.