YOGENDRA @ TEETU Vs. STATE OF U. P.

JUDGEMENT

(1.) This appeal under Section 374(2) read with Section 383 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') has been filed against the judgment of conviction and sentence made therein by Court of Additional Sessions judge, Ex-cadre, Court No. 1, Ghaziabad, in Sessions Trial No. 1338 of 2012, arising out of Case Crime No. 148 of 2012, under Sections 363, 366 and 376 of I.P.C., Police Station Murad Nagar, District Ghaziabad, wherein convict-appellant Yogendra @ Tittu has been convicted for offence punishable under Section 363, 366 and 376 I.P.C. and thereby he has been sentenced with three years rigorous imprisonment and fine of Rs. 3,000/- and in default of making payment of fine, rigorous imprisonment of six months under Section 363 of I.P.C., five years rigorous imprisonment with fine of Rs. 5,000/-, and in default one years additional rigorous imprisonment for offence punishable under Section 366 of I.P.C., ten years rigorous imprisonment and fine of Rs. 10,000/-, and in default two years additional rigorous imprisonment under Section 376 I.P.C., with a direction for concurrent running of sentences and adjustment of previous imprisonment, if any, in this very case crime number as per Section 428 of Cr.P.C.

(2.) Memo of appeal contends that trial Court failed to appreciate facts and law placed upon record. There was no proof of rape with victim nor it was medically corroborated. First Information Report was delayed and no reason for this delay, was given. Prosecutrix was major, thereby, capable to understand her wellness. It was a consensual fleeing. She was pregnant for four months. Offence of rape was not proved. Rather, prosecutrix, upon her own volition, had gone to convict-appellant while being in company of her own friend. Convict-appellant had no fault nor it was rape by him. The sentence was not commensurate to offence. It was highly excessive, hence, this appeal for setting aside impugned judgment of conviction, sentence made therein, for awarding acquittal of charges, leveled against convict-appellant.

(3.) From the very perusal of record of lower Court, it is apparent that First Information Report Ex.Ka-8, was got lodged at Police Station Murad Nagar, Ghaziabad, on 3.3.2012 at 11:30 A.M. for an occurrence of 17.12.2011 at 9:00 A.M. upon the report of Roop Singh son of Genda Lal against Teetu, resident of Village Rajapur, Police Station Kavi Nagar, District Ghaziabad, for offence punishable under Section 363 and 366 I.P.C., with this contention that Roop Singh's daughter, prosecutrix, having date of birth 7.5.1995, student of Class XI, at Sir Chhotu Ram Girls High School, Duhai, went for her school at 9:00 A.M. On 17.12.2011. But she did not turn up. When enquired from school, it came to notice that she had not gone to school on that day. Rather Teetu and Mukesh had taken her in a white van from Murad Nagar Bus Stand, which was witnessed by Ashok son of Sri Ram. Son of 'Bua' of 'Teetu' was also in company of them. Teetu was residing as tenant in the house of Udesh Pal and was involved in the work as T.V. Mechanic at a shop situated beside school at Murad Nagar. Prosecutrix may be murdered by them. This information was sent to S.S.P., Ghaziabad, but of no avail. Hence, an application under Section 156(3) of Cr.P.C. was filed before the Court of VIth Additional Chief Judicial Magistrate, Ghaziabad, with a prayer for direction to Station Office of Police Station, Murad Nagar, for registering a case of kidnapping of a minor girl against Teetu and Mukesh. This application was allowed by Magistrate and this report was got lodged. Investigation resulted recording of statement of prosecturix under Section 164 of Cr.P.C. Ex.Ka-11, her medical examination and report being Ex. Ka-5, pathological report being Ex. Ka-6, spot map Ex. Ka-9 and final submission of charge-sheet Ex. Ka-10, against accused Yogendra @ Teetu for offence punishable under Section 363, 366 and 376 of I.P.C. Ex. Ka-11 was Certificate-cum-Mark-sheet of High School Examination- 2011, wherein, date of birth of prosecutrix was written to be 7.5.1995. As offence, punishable under Sections 363, 366 and 376 I.P.C. was exclusively triable by Court of Session, hence, learned Magistrate, vide order dated 18.8.2012, committed file to Court of Session. Session Judge made over case to Court No. 14 of Additional Session Judge, Ghaziabad wherein learned counsel for the State and for defence, were heard and vide order dated 25.9.2012, charges for offence punishable under Section 363, 366 and 376 I.P.C. were framed against convict-appellant Yogendra @ Teetu. The same is being written in its English translation by Court itself, the vernacular part is not being reproduced.