- (1.) THIS jail appeal has been preferred by the appellant Ram Lal Gaderia against his conviction in Session Trial No.1312 of 2001, under Section 376 I.P.C., arising out of case crime no. 161 of 1997, Police Station Sarojini Nagar, District Lucknow, whereby the appellant was convicted for the offence under Section 376 I.P.C. and was sentenced to undergo rigorous imprisonment for a period of 10 years with fine of Rs.5,000/ - with default stipulation of two months rigorous imprisonment. The appellant was acquitted of charge under Section 3 (1) (x) S.C./S.T. Act.
(2.) IN brief the facts of the case are as under: - 1. Complaint (P.W. -1) (hereinafter referred as 'Prosecutrix') was going to the house of his tenant Ram Pyare to bring kerosene oil along with her brother Shiv Kumar. While they were on way, the appellant Ram Lal Gaderia, forcibly lifted her, closed her mouth and took her towards the grove situated in north direction from the village and after opening her trousers (salwar) committed rape with her. On the alarm raised by the victim and her brother, Ram Chandra tenant and his mother and other persons of the village reached there and accused ran away from there. 2. First Information Report of this case was lodged, in the same night at 00.30 hours. On the basis of the First Information Report, case was registered at case crime no.161 of 1997. Medical examination of the victim was conducted by P.W. -8 Dr. Smt. Pushpa Nautiyal on 3.6.1997 in which no mark of injury was found on any part of the body or on her private parts. Internal examination hymen was found old torn and healed. Vaginal smear was taken for histopathology . In the vaginal smear examination no spermatozoa was found and as per the supplementary report age of the victim was about 15 -16 years. Initial investigation of this case was conducted by P.W. -6 Satish Chandra Pandey subsequently from 4.6.1997 it was taken over by Manik Chandra P.W.5and after completion of the investigation charge -sheet Ext. K - 2 was filed. Medical examination report and supplementary report are Ext. K 4 and Ext. K -5 respectively. Perusal of the record shows that in this case, during transmission of the charge -sheet to the court, case diary and other police papers were lost, therefore, after holding an inquiry by the police, photocopies of the charge - sheet and case diary were sent to the court, on the basis of which cognizance was taken. Other recovery memos by which trousers (salwar) of the victim was taken into custody and memo by which underwear and vest of the accused was taken into custody could not be re -constructed. Forensic Science Laboratory report and the site plan of this case could not be produced during trial. Prosecution in order to prove its case examined .. P.W. -1 victim who is said to be aged about 13 years at the time of occurrence. P.W. -2 is her brother Shiv Kumar, who is said to be aged about 11 years at the time of occurrence. P.W. -3 is Smt. Ranno, mother of the victim. P.W. -4 is Guru Prasad, in his presence underwear and vest of the accused was taken into custody. P.W. -5 is Manik Chandra, subsequent Investigating Officer, who filed the charge -sheet. P.W. -6 is Satish Chandra Pandey, initial Investigating Officer of this case. P.W. -7 is constable Om Prakash who prepared G.D. and chik report of this case. During trial G.D. has not been proved. P.W. -8 Dr. Smt. Pushpa Nautiyal who prepared the medical examination report and the supplementary report, Ext. K -4 and Ext. K -5 respectively.
(3.) NO evidence on behalf of the defense was adduced. Case of the appellant is of total denial and of false implication as stated by him in his statement under Section 313 Cr.P.C. A suggestion was given to the witness that the mother of the victim used to prepare country made liquor and in connection with the said business some altercation took place between the mother and the appellant and some other persons, because of which he has been falsely implicated in this case. Heard Sri Brijendra Singh, amicus curiae on behalf of the appellant and the learned Additional Government Advocate for the State.;