- (1.) UNDER challenge in the instant criminal appeal is the judgment and order dated 30.08.2011 passed by learned Additional Sessions Judge Court No.34, District Barabanki, in Sessions Trial No.373 of 2011, (State Vs. Chhangu and another), relating to Case Crime No.691 of 2010, Police Station Asandra, District Barabanki, whereby the appellants -Chhangu and Raju were convicted for the offence under Section 376 (2) (G) IPC and were sentenced with rigorous imprisonment for a period of ten years and also with fine of Rs.1000/ - each, in default of payment of fine, both of them were directed to undergo six months' additional imprisonment.
(2.) BRIEF facts necessary for the disposal of instant appeal are that the complainant Paltu lodged an FIR on 23.11.2010 alleging therein that in the intervening night of 22/23.11.2010 a marriage party had come at the house of Ram Abhilash Sharma. Barat was staying in the Primary Pathshala, Dhanauli Khaas and Nautanki programme was organized there. In the night at about 11.00 p.m. his minor daughters had gone to see Nautanki and the appellants were also present there. The complainant was also there. His younger daughter felt urge to urinate so she requested her elder sister to accompany her to the field for easing herself. So both of them went towards the field. When the two girls did not come back for a long time then the complainant thought that they must have gone back to the house. In the morning at about 5.00 a.m., when the complainant came back to his house then he got the information that his daughters have not returned. When the complainant came out of his house in search of his daughters, he saw that her daughters were coming back and were weeping. On inquiry, his elder daughter told him that when she had taken her sister to the field then appellants reached there and forcibly caught hold of her and closed her mouth and took her into the grove of "Thunni Baba" and thereafter both the appellants committed rape with her which made her unconscious. Her clothes became blood stained and when she was coming back then she saw her younger sister was sleeping in the field towards north of the school.
(3.) THE case was registered and investigation started. The victim was sent for medical examination. In the medical examination of her body, which was conducted on 24.11.2010 by emergency Medical Officer, District Hospital, Barabanki, following injuries were found on her person: - (a) Multiple abrasion on the back of body. (b) Multiple abrasion in an area of 2 cm X 2 cm on left cheek scab formed. (c) Abrasion on the upper eye lid on left eye. All the injuries were found to be simple in nature and caused by hard and blunt object. In the medical examination of private part of the victim was conducted on 23.11.2010 at 9.00 p.m. at District Women Hospital, Barabanki, the breasts were not fully developed and axillary and pubic hairs were absent. Hymen was freshly torn 3 to 4 mm. Tear present at 9 O' clock position. Slight oozing present. Vagina admitted one finger. Vaginal smear slides were prepared and sent for pathological test, and X -ray was advised for the determination of the age of the victim. After the aforesaid tests no definite opinion could be given about rape. However, the age of the victim was reported to be between 7 -9 years. The Investigating Officer inspected the place of occurrence and after completing the investigation the charge -sheet was filed against the appellants.;