SHANKER KULKARNI Vs. STATE OF U P

JUDGEMENT

(1.) Heard Mr. Jai Pal Singh, learned amicus curiae on behalf of the appellant as well as Mr. Chandra Shekhar Pandey, learned A.G.A. for the State and perused the records.

(2.) This jail appeal has been filed under Section 383, Cr.P.C. against the judgment and sentence dated 23.2.2007 passed by the learned Additional Sessions Judge/F.T.C., Lucknow in Session Trial No. 1078 of 2006, arising out of Case Crime No. 118 of 2006, under Section 376, I.P.C., P.S. Gosainganj, District Lucknow whereby the appellant has been convicted under Section 376 (2) (f), I.P.C. and has been sentenced to life imprisonment and fine of Rs.5,000/- and in case of default to undergo six months' additional imprisonment in jail.

(3.) According to the prosecution case on 21.5.2006 at about 10.45 a.m. the informant Mustafa had lodged a written complaint in the Police Station Gosainganj that he was working in P.B.A. company situated at Deputy Ganj, Lucknow and was living along with his family in a nearby hut. On 20.5.2006 at about 7.30 p.m. his daughter Km. Usma aged about seven and half years was called by the appellant to his room to watch T.V. and he had committed rape after closing the room. When his daughter cried, his wife Smt. Haseena Bibi and other neighbours reached to the room. The appellant thereafter left his daughter and ran away. Since the police station was far away from the place of occurrence, as such he could not go to the police station to lodge the report in the night. On the basis of the said complaint, an F.I.R. was lodged under the aforesaid crime number under Section 376, I.P.C. The Investigating Officer had recorded the statements of the informant (PW-1), his wife Smt.Haseena Bibi (PW-2) and the victim Km.Usma (PW-3) and other witnesses and prepared the site plan. The accused was arrested on the same day at about 3.30 p.m. near the railway crossing and a piece of cloth (Gamcha) was recovered from the possession of the accused which contained semen and blood. The victim was sent to the hospital where she was examined on the same date i.e. 21.5.2006. In order to ascertain the age of victim an x-ray was done and the slide of vaginal smear was prepared to ascertain the presence of semen and gonococci. The victim was also sent for rectovaginal fistula repair to the K.G.M.U. The x-ray and pathological report dated 31.5.2006 was prepared, according to which the age of the victim at the time of occurrence was 7 years. As per the pathological report, some dead semen were found in the vagina, however gonococci were absent. As per the medical report the victim was subjected to forceful intercourse.