SURENDRA VIKRAM SINGH RATHORE, J. - (1.) UNDER challenge in the instant criminal appeal is the judgment and order dated 23.12.2011 passed by learned Additional Sessions Judge Ex Cadre, Unnao in Sessions Trial No.585 of 2010, whereby the appellant -Ganga Ram was convicted for the offences under Sections 363, 366 and 376 IPC and following sentences were imposed on him: (a) Under Section 366 IPC - 3 Years' and six months' rigorous imprisonment and fine of Rs.1000/ - with default stipulation of 15 days' additional imprisonment. (b) For the offence Under Section 376 IPC, -7 years' rigorous imprisonment and fine of Rs.1,000/ - with default stipulation of 15 days' additional imprisonment. However, no separate sentence for the offence under Section 366 IPC was inflicted as the same was minor offence of the offence under Section 366 IPC.
(2.) BRIEF facts necessary for the disposal of instant appeal are that the incident of this case is alleged to have taken place on 11.04.2010 with minor daughter of the complainant, (hereinafter referred as victim) who was student of Class VII and her date of birth was recorded as 14.04.1995. It was alleged that on 11.04.2010 at about 8.00 p.m. the victim went to attend the call of nature, when she did not come back for a long time then the complainant started her search but she could not be traced out. Search was made by the complainant at possible places but his efforts failed. On 12.04.2010 the complainant gave an information of this incident to the concerned police station raising suspicion against the appellant Ganga Ram but the police failed to take any action. Thereafter on 22.04.2010 the complainant again moved an application before the Superintendent of Police, Unnao, but inspite of that no action was taken on the said application. Thereafter, on 07.05.2010 he sent an application to the Chairman of Women Commission, Lucknow, and also to the Chief Minister and the Superintendent of Police, Unnao. On the application sent to the Chairman Woman Commission, the case was registered on 05.06.2010 at 10.00 a.m. and the investigation started. The Investigating Officer inspected the place of occurrence and prepared its site plan. During investigation, after about two and half months, the victim was recovered by the police and she was medically examined. In her medical examination no mark of injury was found either on her body or on her private part. Vagina admitted two fingers easily. Hymen was old torn and healed. As per supplementary report no definite opinion about rape could be given and the radiological age of the victim was reported to be more than 16 years. The statement of the victim under Section 164 Cr.P.C. was recorded which is being reproduced as under : - XXX XXX XXX In order to prove its case, the prosecution has examined PW -1, the complainant Ram Kumar, PW -2, the victim, PW -3 Dr. Saroj, who has medically examined the victim, PW -4 Dr. Rajendra Kumar, Radiologist who has performed X -ray of the victim, PW -5 Head Constable, Raghuveer Prasad, who has prepared the chik report and G.D. of this case, PW -6, S.I. Raj Bahadur Sharma, who has investigated the case, PW -7 Ramesh Chandra, Assistant Teacher in Junior High School, Mahuva, PW -8, Brij Mohan, Principal of the said school, PW -9 Sri Sanjeev Kumar, present Principal of the Primary School, Mahuva, PW -7, 8 and 9 have been examined to prove the date of birth of the victim as recorded in the school record.
(3.) IN defence the accused has filed the copy of the voter list to show that she had attained the age of 18 years.;