SURENDRA VIKRAM SINGH RATHORE, J. - (1.) UNDER challenge in this appeal is the judgment and order dated 30.7.2011 passed by the learned Additional Sessions Judge/ T.E.C.P. -7, Lucknow in Sessions Trial No. 255 of 2009 arising out of Case Crime No. 1175 of 2008, Police Station Hazratganj, District Lucknow whereby the appellant Ramesh Tiwari was convicted for the offence under Section 376 I.P.C. and was sentenced to undergo rigorous imprisonment for a period of ten years and also with fine of Rs. 5,000/ - with default stipulation of three months additional simple imprisonment.
(2.) THERE was one other accused in this case namely, Dilip Kumar Mishra. Vide order dated 17.4.2009, his file was separated and sent to learned Juvenile Justice Board for determination of his age. In the order sheet of the trial court dated 7.7.2009, it is mentioned that he has been declared "Juvenile in conflict with law" by Juvenile Justice Board, therefore his case was separated and tried by the Juvenile Justice Board. It is informed by learned counsel for the appellant that his trial is still pending.
(3.) THE incident of this case is alleged to have taken place on 28.10.2008 at 7:15 a.m. and F.I.R. of this case was lodged by the mother of the victim on the same day at 8:30 a.m. i.e. only one hour and twenty minutes after the occurrence. It was mentioned in the F.I.R. that on 28.10.2008 at 7:15 a.m. appellant Ramesh Tiwari son of Shiva Kant Tiwari and Dilip Kumar Mishra son of Badri Prasad Mishra have committed rape with the victim, after calling her in a room. This incident had taken place near Dainik Jagran Crossing in front of Gauri Apartment. The F.I.R. was scribed by Mohd. Khalid son of Ram Ahmad. It is pertinent to mention here that "Dainik Jagran" crossing is within the heart of city. After registration of the case, Salwar, Kurta and Slip of the victim were taken into custody and the same were sent to Forensic Science Laboratory. The victim was referred for her medical examination. Her medical examination took place at 12:30 p.m. on the same day at "Veerangana Awanti Bai Women Hospital Lucknow". As per medical examination report, her general condition was average. Teeths were 5+7/6+6. In her internal examination, the doctor has mentioned that her clothes have already been sealed by the police and no mark of any injury was found on any external part of the body. Her breast were not developed. Auxiliary and pubic hairs were not developed. In her internal examination, which was done in operation theatre under general Anesthesia, there was bleeding in her private part. 2 perennial tear present at 6 O'clock position. Hymen was fresh torn. A tear was present in left fornix, upper limit could not be reached. Vagina admitted one finger. Vaginal swab was taken and sent to pathological test. Stitch could not be done, therefore, packing was done. The victim was referred to surgery department and also for x -ray for determination of her age.;