- (1.) CHALLENGE in this appeal is the judgment and order dated 9.3.2011 passed by the learned Additional Sessions Judge, Court No. 3, Lakhimpur Kheri in Sessions Trial No. 178 of 2010 arising out of case crime no. 862 of 2009, Police Station Haiderabad, district Lakhimpur Kheri whereby the appellant 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 six months simple imprisonment.
(2.) BRIEF facts necessary for the disposal of the instant appeal may be summarized as under: - On 6.8.2009 at about 15:30 hours, the victim of the offence aged about 8 years went to the police station along with her parents and lodged the F.I.R. of this case, alleging therein that on the same day at about 12:00 noon, she had gone to the field to bring grass. While she was cutting the grass, the appellant Binder, who was of the same community, reached there and caught hold of the victim. When the victim made an effort to raise alarm then he closed her mouth and dragged her inside the sugarcane field and forcibly committed rape with her. When the appellant left her then she raised alarm. On hearing her alarm, her father and other persons, who were working in the nearby fields, also reached there and the appellant ran away from there. After registration of the case, statement of the victim was recorded and she was referred for medical examination. At the time of recording of her statement under Section 161 Cr.P.C., the Investigating Officer noticed that she was having lot of pain and there was also bleeding from her private part. The victim was medically examined on the same day at Women's Hospital, Lakhimpur Kheri. As per medical examination report, the height of the victim was under 129 c.m., weight 25 kg. Teeth were 11/12. Breast were not developed. Pubic and axillary hairs were absent. No injury on her body was found. On her internal examination vaginal tear 1 c.m. at 6 O'clock position was present. Hymen was torn. Slight laceration was present. Vaginal smear swab was prepared and the victim was referred for x -ray for determination of her age. After the aforesaid tests and x -ray report, the age of the victim was found to be 8 years. No definite opinion was given regarding sexual assault. It was reported that it can be attempt of or just like sexual activity. During investigation, bloodstained skirt and underwear of the victim was taken into custody by the police and its memo was prepared. The place of occurrence was inspected and site plan was prepared. After completion of investigation, charge sheet was submitted against the appellant.
(3.) THE case of the defence was that he has been falsely implicated in this case due to enmity. In order to prove its case, the prosecution has examined, PW -1 the victim, PW -2 Shiv Prasad, who is said to have reached at the place of occurrence hearing the cries of the victim and he was also witness of the recovery memo of skirt and underwear of the victim. PW -3 is Dr. Pushplata, who has proved the medical examination report. PW -4 Bhog Nath, father of the victim. PW -5 Dr. S.P. Singh, Radiologist, under whose supervision x -ray plates of the victim were prepared. PW -6 is Constable Surendra Pal, who has prepared the chik report and G.D. of this case. PW -7 S.I. Ram Daur Verma, who has investigated the case.;