SHUKH DEV Vs. STATE OF U P

JUDGEMENT

(1.) UNDER challenge in this appeal is the judgment and order dated 10.5.2011 passed by learned Additional Sessions Judge, Court No. 6, Hardoi in Sessions Trial No. 940 of 2010, arising out of case crime no. 32 of 2009 Police Station Lonar, District Hardoi whereby the appellant was convicted for the offence under Section 452, 376 and 323 I.P.C. For the offence under Section 452 I.P.C. he was sentenced to undergo rigorous imprisonment for a period of five years and also with fine of Rs. 5,00/ - with default stipulation of three months additional imprisonment. For the offence under Section 376 I.P.C., he was directed to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 2,000/ - with default stipulation of one year additional imprisonment and for the offence under Section 323 I.P.C., he was sentenced to undergo rigorous imprisonment for a period of six months. All the sentences were directed to run concurrently.

(2.) IN brief, the case of the prosecution according to F.I.R, which was lodged by the victim herself, was that on 16.11.2009, she was present inside her house, her husband was not present in the house, at about 12:00 noon, appellant Sukh Dev trespassed into her house and finding the victim alone caught hold of her and with evil desire put her on the cot and started outraging her modesty. She started crying. Hearing her cries, her husband Ram Ladaite and one Jaddu reached at the place of occurrence. Thereafter the appellant ran away after giving slaps to the victim. F.I.R. of this case was lodged on 20.11.2009 at 10:30 a.m., the distance of the village from the police station, as per chik report, was three kilometers. This F.I.R. was lodged under Section 452, 354 and 323 I.P.C. During investigation, the victim also made allegation of rape against the appellant, therefore, vide G.D. No. 23 dated 3.12.2009, the case was converted under Section 376 I.P.C. During investigation, when the victim made allegation of rape then her Peticote, one Kathari, one underwear of victim's husband and one old Gamchha, which was reported to be of the appellant, were taken into custody by the Investigating Officer. It was alleged that the appellant cleaned his private part with the said underwear. The place of occurrence was inspected and its site plan was prepared. The victim was referred for medical examination. Her medical examination took place at Women Hospital, Hardoi. She was medically examined by Dr. Rashmi Gupta on 4.12.2009 at 3:15 p.m. As per medical examination report, no mark of injury on external surface of body was found. Her breast were developed. Axillary and pubic hairs were developed. On her internal examination no mark of injury on her private part was found. Hymen was old torn and healed. Vagina admitted two fingers easily. Vaginal smear slide were prepared and were sent for pathological test and the victim was referred for x -ray for determination of her age. On the basis of these tests, by means of supplementary report, the doctor opined radio -logical age of the victim about 18 years. However, no definite opinion regarding rape could be given.

(3.) AFTER completing the investigation, charge sheet was filed by the police.