- (1.) UNDER challenge in the instant criminal appeal is the judgment and order dated 05.02.2009 passed by learned Additional Sessions Judge/Fast Track Court, 8, District Lucknow, in Sessions Trial No.426 of 2008, whereby the appellant -Deshpal Maurya was convicted and following sentences were imposed on him: (a) Under Section 363 IPC - 7 Years' rigorous imprisonment with fine of Rs.5000/ - with default stipulation of three months additional imprisonment. (b) Under Section 366 IPC -7 years' rigorous imprisonment and also with fine of Rs.5000/ - with default stipulation of three months additional imprisonment. (c) Under Section 376 IPC -10 years' rigorous imprisonment with fine of Rs.10,000/ - with default stipulation of five months additional imprisonment.
(2.) BRIEF facts necessary for the disposal of instant appeal are that the minor daughter of the complainant (hereinafter referred as victim) was aged about 16 years and a student of Awadh Saraswati Inter College, Sector -6, Jankipuram. Appellant Deshpal Maurya was a teacher in the same school and was living in the neighbourhood of the victim. On 04.04.2007 the victim had gone to appear in the exam from 2.00 p.m. to 5.00 p.m. when she did not come back after the examination then the complainant inquired about her whereabouts then he came to know that after examination the victim has been enticed away by the present appellant. The FIR of this case was lodged on the next day i.e. on 05.04.2007 at 19:15 hours. The distance from police station to the Saraswati Inter College was one and half kilometer. During investigation, the victim was recovered from the court premises on 07.05.2007. Her medical examination took place and in her medical examination no mark of injury, on any part of the body, was found. Her breasts were developed, auxiliary and public hairs were present. No mark of injury was found on her private part. Hymen was old torn healed. Vagina admitted two fingers easily. Vaginal smear was taken and victim was referred for X -ray for determination of her age. Her ultra sonography was also conducted and as per the supplementary report uterus was of normal size. No sign of pregnancy was seen. The age of the victim was reported to be above 18 years and no definite opinion about rape was given. After concluding the investigation the police submitted charge -sheet against the appellant.
(3.) THE case of the defence was of his false implication and that she was above 18 years of age. They were in love with each other and she had gone with him out of her own free will. Subsequently, under pressure of her parents she has given statement against the present appellant. In order to prove its case, the prosecution has examined PW -1, the complainant Ajay Kumar Singh, PW -2 Sri Vijay Bahadur Singh, who was principal of Shanti Convent Inter College. On the relevant date, i.e. on 04.04.2007 some person had given him two coins of Rs.5/ - each for handing over to the victim for coming back on rickshaw. Evidence of this witness is not of much relevance. PW -3 is the victim herself, PW -4 is S.I. Ram Swaroop Maurya who has investigated this case, PW -5 is Dr. Solat Rizvi who has medically examined the victim and prepared medical examination report and supplementary report. PW -6 is Constable Sita Ram who has prepared the chik report and G.D. of the case. No oral evidence has been adduced by the appellant in his defence. However, several letters written by the victim to the appellant and contract of marriage in original and several photographs of the victim with the appellant have also been filed. Apart from it, certified copy of the application moved by the victim herself before Judicial Magistrate -II, Lucknow, with the prayer that her husband is in jail and she apprehends danger to her life at the hand of her parents, therefore, she be taken into custody and be sent to protection home. After appreciating the evidence on record, the trial court convicted the appellant as above. Hence, the instant appeal.;