- (1.) UNDER challenge in this appeal is the judgment and order dated 19.01.2007 passed by the learned Additional Sessions Judge/Fast Track Court No. 1, Sitapur in Sessions Trial No. 656 of 2005, arising out of case crime no. 595 of 2004, Police Station Laharpur, District Sitapur whereby the appellant Banshi was convicted for the offences punishable under Sections 343, 363, 366 and 376 I.P.C. and was sentenced as under: - (i) Section 343 I.P.C. - One year Rigorous Imprisonment. (ii) Section 363 I.P.C. - Three years Rigorous Imprisonment and fine of Rs. 1,000/ -. (iii) Section 366 I.P.C. Five years Rigorous Imprisonment and fine of Rs. 2,000/ -. (iv) Section 376 (1) I.P.C. - Ten years Rigorous Imprisonment and fine of Rs. 3,000/ -. In default of payment of total fine of Rs. 6000/ -, the appellant was directed to undergo additional rigorous imprisonment for a period of one year. All the sentences were to run concurrently.
(2.) BRIEF facts, necessary for disposal of instant appeal, are as under: - The occurrence of this case is alleged to have taken place on 27.11.2004 at about 6:00 p.m. F.I.R. of this case was lodged on 1.12.2004 at 14:10 hours, on an application moved to Circle Officer and under his orders of the same day. As per version of the F.I.R., minor daughter of the complainant(herein after referred to as 'victim') had gone to attend the call of nature on 27.11.2004 at about 6:00 p.m. Appellant Banshi Pasi along with Kamlesh, Chantu and two other unknown persons forcibly caught hold of the victim and took her at some unknown place and they all committed rape with her for a period of five days. Because of the firearms, which were possessed by the accused persons, the victim could not raise any alarm. After five days of the occurrence, the victim came back to her home with Kamta, who happens to be relative of the accused persons. On the application of the complainant, the Circle Officer passed an order on the same day and in compliance thereof, F.I.R. was lodged on 01.12.2004 at 14:10 hours.
(3.) DURING investigation, the victim was medically examined at District Women Hospital, Sitapur on 2.12.2004 at 4:20 p.m. In her medical examination, no mark of injury were found on her person or on her private part. Her hymen was old torn and healed. Vagina admitted two fingers. Last menses had taken place about 25 days back. Axillary hairs were scanty. Pubic hairs were scanty. Breasts were developed. She was referred to radiological and pathological test. As per the supplementary report, she was opined to be 15 years of age and no definite opinion about sexual assault could be given. The Investigating Officer inspected the place of occurrence and prepared the site plan and after completing the investigation, submitted charge sheet against the present appellant only. Nomination of other two named accused persons was found to be false. The case of the defence was that the age of the victim at the time of incident was about 20 -21 years. She had love affairs with the present appellant and she wanted to marry him, therefore, he has been falsely implicated due to this reason. It was further a defence that the mother of the victim had lodged another F.I.R. subsequent to this incident against his family members and when he was confined in jail marriage of the victim was solemnized.;