- (1.) CHALLENGE in the instant appeal is the judgment and order dated 25.10.2005 passed by the Sessions Judge/Fast Track Court -II, Lucknow in Sessions Trial No. 430 of 2002, arising out of case crime no. 10 of 2001, P.S. - Malihabad, District - Lucknow, whereby the appellant Rakesh Kumar was convicted for the offence under Section 376 read with Section 511 IPC and was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 2,000/ - with default stipulation of six months additional imprisonment. He was further convicted for the offence under Section 506 IPC and was sentenced to undergo rigorous imprisonment for a period of three years. Both the sentences were directed to run concurrently.
(2.) IN brief, the facts necessary for the instant appeal are that the victim herself lodged the FIR of this case on 17.01.2001 at 11.15 am, alleging therein that her age is 18 years. On 16.01.2001, she had gone near the canal for grazing the cattle near the grove of Khelan. She was sitting in the grove and looking after the cattle. Appellant, finding the victim alone, reached there and threatened her that he will commit rape. The victim resisted but as he was healthy, therefore, resistance of the victim could not succeed. Her mouth was gagged with angocha (short thin towel) and she was dragged into the grove and pushed on the bale of harvested paddy crop. Her salwar was opened and appellant also opened his underwear, due to which she became afraid and after gathering her courage, she gave a kick blow on the abdomen of the appellant due to which he went little backwards. In the meanwhile, the victim took out the angocha from her mouth and started raising alarm. Her father was irrigating a nearby field. He along with Dwarka and Munna reached there and on their challenge appellant ran away from there, extending threats to her that whenever he will find her alone, he will repeat the same act. On the basis of this FIR, case crime no. 10 of 2001 was registered at P.S. - Malihabad. The Investigating Officer, inspected the place of occurrence and prepared the site plan and after concluding the investigation, submitted charge sheet against him. The case of the defence was of false implication and further that the victim has given evidence against him under the pressure of her father. Gangaram, father of the victim has given evidence due to enmity.
(3.) IN order to prove its case, the prosecution has examined the victim as P.W. -1, Gangaram, father of the victim, who reached on the alarm of the victim as P.W. -2, Constable Ramji Rao, a formal witness, who has prepared the chik report and General Diary of this case as P.W. -3, Sub -Inspector Ajay Kumar Mishra, the second Investigating Officer of this case as P.W. -4. The initial investigation was done by Sub -Inspector Dharmendra Yadav and from 27.01.2001, this witness conducted the investigation and submitted charge sheet. No evidence, in defence was given. After appreciating the evidence on record, the trial court has convicted the appellant, as above. Hence, this instant appeal. Submission of learned counsel for the appellant is that the story of FIR was further developed by the victim, during her statement in court. It has further been submitted that even if the version of the FIR is found to be wholly reliable even then the offence does not go beyond the purview of Section 354 IPC. It has further been submitted that the victim was having friendship with the appellant. They were talking with each other and the real uncle of father of the victim saw them and therefore this false FIR has been lodged. It has further been submitted that the fact that victim was seen by her father's uncle has come in evidence and it supports the defence story.;