- (1.) THIS appeal under Section 374(2) Cr.P.C. has been preferred by appellant Azad against the judgment and order dated 30.01.2009 passed by Addl. Sessions Judge/F.T.C.V, Lucknow in Sessions Trial No.1301 of 2006 convicting the appellant under Section 376(2)(cha) I.P.C. and sentencing the appellant to imprisonment for life and a fine of Rs.2,000/ - and in default of payment of fine to further undergo R.I. of two months.
(2.) BRIEFLY stated, according to the prosecution case, the report was lodged by Chhotey Lal alleging that his daughter aged about ten years had gone for urinating from her house towards Gahalvara, P.S. Kakori, District Lucknow. His daughter was taken away by covering her mouth near the pond and committed rape. When his daughter did not return, he started searching for her and saw that she was crying and accused left her at that place and ran away. Several persons also reached there hearing the cries of victim. The report of the incident was registered on 10.6.2004 at 10.45 P.M. and on the basis of this report a case under Section 376 I.P.C. read with Section 3(2)(v) S.C./S.T. Act was registered. Recovery memo of underwear of the victim was prepared and the victim was referred for medical examination. After collecting evidence, charge sheet was submitted against the accused persons. The case was committed to the court of sessions. The Sessions Judge charged the accused under Section 376 I.P.C. read with Section 3(2)(v) S.C./S.T. Act. Accused denied the charges and claimed trial.
(3.) PROSECUTION in order to prove its case examined in all eight witnesses - P.W. 1 Chhotey Lal, the first informant; P.W. 2 Putti Lal; P.W. 3 victim; P.W. 4 Guru Prasad; P.W. 5 Kaushalya; P.W.6 S.I. Sri Jageshwar Prasad; P.W. 7 Dr. Sushma Singh and Constable Lalta Prasad, P.W. 8. We have heard learned counsel for the parties and perused the record of the trial court. P.W.1 is the first informant of the case and father of the victim. He deposed that on 10.06.2004, in the evening, his daughter had gone to urinate in the grove of Kallu and accused had caught hold of her and committed rape. Several persons, hearing the alarm, reached at the place of incident and saw the accused committing rape. When he reached there accused Azad ran away. He had lodged the report at P.S.Kakori at 8:45 p.m. He has proved the F.I.R. (Ext. 'Ka' -1). He was extensively cross -examined but nothing could be elicited to discredit his testimony. P.W.2, Putti Lal is resident of the same village. He was attracted hearing the clamour at the door of the victim; several persons had also collected there. He saw blood was oozing from private parts of the victim and she told them that Azad has committed rape near pond while she had gone to urinate. He had accompanied the complainant for lodging the report. He is not an eye witness and his evidence is hearsay. He has only seen the blood oozing out from the private parts of victim. P.W. 4 Guru Prasad has not supported the prosecution case and he was declared hostile. P.W. 5 Kaushalya is mother of the victim. She deposed that the victim was aged about 9 years at the time of the incident. She heard the cries of the victim and ran along with her husband and saw that Azad had committed rape and seeing them ran away from the place of incident. Putti Lal, Raj Kumar and Ram Nath also reached the place of occurrence and they tried to apprehend accused Azad but he ran away; blood was oozing out from the private parts of victim. The victim was referred to medical examination. She was also extensively cross -examined but nothing could be elicited to discredit her testimony. P.W. 3 is the victim. She has fully supported the prosecution case. She has narrated the entire incident in a very truthful manner. At the time of incident she was aged about 10 years. P.W. 6 S.I. Sri Jageshwar Prasad has proved the chick F.I.R. and G.D. Entry. P.W. 7 Dr. Sushma Singh is the Medical Officer who had examined the victim on 11.06.2004. She had noted in internal examination that hymen completely fresh torn, profuse bleeding present. 2 linear vaginal tears present at posterior wall and left lateral wall approx. 1 inch and 2 inch; paraurethral tear on left side 1 c.m. present. In supplementary medical examination report (Ext. 'Ka' -5), in the opinion of the doctor, the age of the victim was 9 years and in finding, suggestive of rape was mentioned. P.W. 8 Constable Lalta Prasad has proved the site plan (Ext. 'Ka' -6) and charge sheet (Ext. 'Ka' -7) respectively.;