PUNEET Vs. STATE OF U P

JUDGEMENT

(1.) UNDER challenge in the instant criminal appeal is the judgment and order dated 20.04.2009 passed by learned Additional Sessions Judge/Fast Track Court, II, District Lucknow, in Sessions Trial No.655 of 2007 whereby the appellant -Puneet was convicted for the offences under Section 366 & 376 IPC and was sentenced for the offence under Section 366 IPC with simple imprisonment for a period of five years and also with fine of Rs.2,000/ - with default stipulation of six months' additional imprisonment. For the offence under Section 376 IPC he was sentenced to undergo rigorous imprisonment for a period of seven years' and also with fine of Rs.3000/ - with default stipulation of nine months additional imprisonment. The appellant was acquitted of the charge under Section 363 IPC. Both the sentences were directed to run concurrently.

(2.) IN brief, the case of the prosecution was that the complainant Rahman Khan resides in Gomti Nagar, Lucknow, as per the prosecution story, on 14.02.2007 the minor daughter of the complainant (hereinafter referred as victim) aged about 14 years had gone to purchase fruits in the evening at about 5.00 p.m. to Patrakar Puram crossing in Gomti Nagar, Lucknow. When she did not come back till 7.00 p.m. in the night then the wife of the complainant became worried and made an inquiry from the persons living in the neighbourhood. The complainant who is a petty vendor came back to his house in the night at about 8.00 p.m. when he came back to his house then his wife narrated this incident to him and thereafter he also started search of the victim. On 15.02.2007 one Sri Ram who resides in the same locality, who runs a Tea shop at Nawabpurwa crossing, told him that in the evening at about 5.30 p.m. when he was present at Hannimen Crossing in Gomti Nagar then he saw the victim with the present appellant -Puneet and one Pappu near Malik Timber crossing. They were going on a rickshaw towards Hannimen Crossing. Then the complainant went to lodge the FIR of this case to the police station but the police personnel present at the police station after taking the report told him that an inquiry shall be made and thereafter the FIR shall be registered. For a period of one week, the complainant continued to contact with the police personnel but no action was taken. So he sent applications through registered post to the Senior Superintendent of Police and other authorities on 23.02.2007. Inspite of that no action was taken. Hence, on 27.02.2007 the complainant filed an application under Section 156 (3) Cr.P.C. before the competent court and in compliance of the order of the court dated 19.03.2007, FIR of this case was registered on 29.03.2007 at 15:30 hours. During investigation the victim was recovered on the same day i.e. 29.03.2007 at Polytechnic crossing in Lucknow where she was present in the company of the present appellant but the appellant was successful in fleeing away from the said place taking advantage of the crowd which was present there. After her recovery she was referred for medical examination and she was medically examined on 30.03.2007 at 11.00 a.m. by Dr. Pushplata Agarwal.

(3.) AS per her medical examination report no mark of injury was found over her private parts or on her body. Her height was 61 inches, weight was 110 ponds, teeths were 16/16 and secondary sex characters were found to be well developed. Vagina admitted two fingers easily, uterus was of normal size. Vaginal smear was taken and the victim was referred for X -ray for assessment of her age. No definite opinion about rape could be given and as per the supplementary report the age of the victim was reported to be above 18 years.