BADRI @ GAMMEY Vs. STATE OF U P

JUDGEMENT

(1.) UNDER challenge in the instant criminal appeal is the judgment dated 08.03.2011 and order dated 09.03.2011, passed by learned Ist Additional Sessions Judge, Gonda in Sessions Trial No.420 of 2010 arising out of Case Crime No.192 of 2010, Police Station Karnailganj, District Gonda, whereby the appellant -Badri @ Gammey was convicted for the offences under Sections 363, 366 and 376 IPC. For the offences under Sections 363 & 366 IPC he was sentenced to undergo rigorous imprisonment for five years for each offence and also, with fine of Rs.5000/ - with default stipulation of five months' additional imprisonment. For the offence under Section 376 IPC appellant was sentenced to undergo rigorous imprisonment for a period of ten years and also with fine of Rs.10,000/ - with default stipulation of ten months additional imprisonment. However, by the impugned judgment the other accused persons were acquitted of the charges levelled against them but the present appellant was held guilty for the aforesaid offences. All the sentences were directed to run concurrently.

(2.) THE facts necessary for the disposal of the present appeal are that the complainant Rama Pati lodged an FIR on 16.04.2010 at Police Station Karnailganj, District Gonda at 5.00 p.m., with the allegation that the accused persons who were distantly related to the complainant have enticed away the victim on 09.04.2010 at 5.00 p.m. It was alleged that the appellant Badri alias Gammey after talking with the victim on mobile phone has committed the said offence. When the complainant came back from the market then the incident was narrated to him by his wife and thereafter the family members started search of the victim. They went to the house of the four named accused persons but the accused persons were absconding and were not present at their houses. When efforts of the complainant failed then on 16.04.2010 he lodged the FIR of this case. The case was registered and during course of investigation on 19.05.2010, the victim was recovered by the police on an information of the informer. She was recovered from a crossing while at that time the accused appellant was also present there but seeing the police party he escaped from there and the victim after her recovery was given in the custody of her father on 21.05.2010. The place of occurrence was inspected by the Investigating Officer on 19.04.2010 and place of recovery was inspected on 12.07.2010. The victim was referred for medical examination which was conducted at District Women Hospital, Gonda, on 19.05.2010. As per her medical examination report the victim was an average body built girl, her height was 144 cms., weight was 38 kgs., teeths were 14/16 and breasts were at developing stage. Axillary hairs were present. However, no mark of injury on external part of the body was found. Last menses took place on 02.05.2010. On her internal examination no mark of injury on the internal part of the body was found. Hymen was old torn and healed. Vagina admitted two fingers easily. Vaginal smear slides were prepared and the victim was referred for X -ray for assessment of her age. On the basis of the aforesaid test, by means of supplementary report, the doctor opined her age to be around 18 years. However, no definite opinion about rape could be given.

(3.) IN order to prove its case, the prosecution has examined PW -1 the complainant, Rama Pati, PW -2 the victim, PW -3 Smt. Shanti, mother of the victim, PW -4 Constable Suresh Singh, who has prepared the chik report and G.D. of the case, PW -5 S.I. Raj Kumar Yadav, Investigating Officer of this case, PW -6 Dr. Lalit, who has medically examined the victim, PW -7 Dr. R.C. Verma, Senior Physician, District Hospital, Gonda, who has prepared X -ray plates and report of the victim.