- (1.) THIS Criminal Appeal under section 374(2) Code of Criminal Procedure (hereinafter referred to as 'CrPC') has been preferred by the sole appellant Sandeep alias Kothari Upadhyay against the judgement and order dated 30.10.2013 passed by Sri Surendra Prasad Yadav, Additional Sessions Judge, Court No.5, Gonda, in Sessions Trial No.180 of 2013 having Case Crime No.389 of 2012, under Sections 363, 366, 376, 506 of Indian Penal Code (in short 'IPC'), Police Station Kotwali Dehat, District Gonda, whereby the present appellant has been convicted under Sections 363, 366, 376, 506 (2) IPC and sentenced with rigorous imprisonment of three years and fine of Rs.3000/ - with default stipulation under section 363 IPC, five years and fine of Rs.5000/ - with default stipulation under section 366 IPC, ten years and fine of Rs.10,000/ - with default stipulation under section 376 IPC and two years under section 506(2) IPC.
(2.) THE briefly stated the facts necessary for deciding the present appeal are that prosecutrix, the daughter of Smt. Manju Yadav (informant), alleged to be 17 years of age was enticed away by appellant Sandeep alias Kothari alongwith co -accused Alok Shukla alias Vedi on 06.08.2012 at about 3.00 p.m. to Railway Station, Gonda with promise extended by Sandeep alias Kothari Upadhyay to marry with her. When the prosecutrix did not return home, the parents of the prosecutrix started her search and reached Railway Station, Gonda where they saw the appellant and co -accused Alok Shukla standing with her daughter. As soon as, the appellant and co -accused Alok Shukla saw the family members of the prosecutrix, they managed their escape from there leaving the prosecutrix alone. Thereafter, the parents of the prosecutrix took her back to home. On return, the prosecutrix told her mother that the accused persons were intending to take her to Delhi. Both the accused persons threatened the parents of prosecutrix that if they reported the matter to the police, they shall be killed. On account of fear, the First Information Report (for Short 'FIR') could not be lodged on the same day and thereafter when the relatives of informant Smt. Manju Yadav came on 09.08.2012, she went to the Police Station Kotwali Dehat, District Gonda with her relatives and gave a written report (Ex. Ka -1) in the police station after getting it scribed with an unknown person. On the basis of said written report, a case was registered after entering the same in the General Diary of police station at Sl.No.40 at 19.10 hours (Ex. Ka -10). FIR (Ex. Ka -9) was also prepared by Constable Har Govind (PW 8). The investigation of the case was entrusted to SI Ram Gyan Singh (PW 6) who called the prosecutrix and her mother at police station on 10.08.2012 and tried to record the statement of the prosecutrix but she declined to give any statement on that day.
(3.) THEREAFTER , she was sent for medical examination along with her mother to District Women Hospital, Gonda, where Dr. Shivali Tripathi (PW 5) examined the prosecutrix on 10.08.2012 at 11.00 a.m. On external examination, she found that prosecutrix has average body built, height 149 cm, weight 40 kg, teeth 14/14, breasts in developing stage and auxiliary hairs were present. A linear abrasion was also seen on the cheek 6 cm from the right angle of mouth, may be caused by some sharp object. On internal examination, no mark of external injury was found on private parts of the prosecutrix, hymen found torn and healed, no bleeding found from the private parts and two fingers could enter into vagina easily. The medical examination report (Ex. Ka -4) was prepared by Dr.Shivali Tripathi.;