- (1.) CHALLENGE in the instant criminal appeal is the judgment and order dated 15.02.2011 passed by Additional Sessions Judge, Court No. 7, Lucknow in Sessions Trial No. 526 of 2009, arising out of Case Crime No. 173 of 2006, under sections 363, 366 and 376 IPC, Police Station Cantt., District Lucknow. The appellant was acquitted of the charge under Section 363 IPC. However, he was convicted for the offence under Section 366 IPC and was sentenced to undergo rigorous imprisonment for a period of 5 years and also with fine of Rs. 5,000/ - with default stipulation of two months additional simple imprisonment. He was also convicted for the offence under Section 376 IPC and was sentenced to undergo rigorous imprisonment for a period of 8 years and also with fine of Rs. 10,000/ - with default stipulation of five months additional simple imprisonment.
(2.) IN brief the facts giving rise to the present case are that the complainant Jodh Singh Visht who happens to be the real uncle of victim had lodged an FIR on 24.10.2006 at P.S. Cantt., District Lucknow alleging therein that his niece (hereinafter referred to as the victim) aged about 17 years has been enticed away by the appellant. It was also mentioned that the appellant Imran Siddiqui who is resident of Village Sohadmau Mawai, P.S. Sultanpur Ghosh, District Fatehpur who was at that particular time living at Bungla Bazar, Eldico Colony, House No. 631, Sector -3, P.S. Ashiyana, Lucknow and was employed with Chaudhary Estate Builders. It was also alleged that Virendra Singh Visht resident of Neelmatha had seen the victim going on motorcycle with the appellant. After registration of the case the Investigating Officer got the papers, when he was on patrol duty and he received a secret information through an informer that the appellant is about to come on motorcycle with the victim so the complainant was called and thereafter, the victim and appellant were seen coming on a motorcycle and when they turned towards Raibareli then they were stopped by police party and appellant was arrested. The victim was referred for medical examination. No injury on her private parts or any part of body was found. Her vagina was old torn and healed. Vagina admitted two fingers easily. Vaginal smear slide was prepared and victim was referred for x -ray for determination of her age.
(3.) AFTER the aforesaid tests by means of supplementary report, Dr. Lily Singh who had medically examined the victim has reported that no definite opinion can be given about rape, however, she was reported to be above 18 years of age, as all the epiphysis were fused. The Investigating Officer got the statement of victim recorded under Section 164 Cr.P.C. and after completing the investigation charge sheet was submitted against the appellant. The case of the defence was that the victim and appellant were in love with each other. She had gone out of her own free will. The appellant has not committed any rape with her against her will or by force. It was also the defence of the appellant that the appellant belongs to a different religion and his relationship was not liked by the family members , therefore, the complainant who happens to be a police personnel got him falsely implicated in this case. Thus, the case of the appellant was of his false Implication because of the love affairs between appellant and the victim, who are of different religions.;