- (1.) This criminal appeal has been filed against the judgment and order dated 18.9.2013 passed by Additional Sessions Judge, Court No.10, Allahabad in Sessions Trial No.27 of 2009 (State vs. Mukesh and another) under Section 376, 504, 506 IPC whereby the appellant Mukesh Kumar has been convicted under Section 376 IPC and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/-. In default of payment of fine he has been directed to further undergo simple imprisonment for three months.
(2.) The prosecution case, in brief, is that the first informant Smt. Urmila Devi lodged a written first information report on 6.5.2008 at 5.00 p.m. in P.S. Karchhana District Allahabad to the effect that she herself and her daughter (hereinafter referred to as the prosecutrix) aged about 8 years were sleeping on the separate cots in the night of 4/5th May, 2008. The accused Mukesh Kumar having lifted her daughter had taken her behind her house and dropped her on the heap of mustard straw and thereafter committed rape upon her. The prosecutrix tried her best to release herself from the clutches of the accused but she could not save herself. On being released from his clutches she had come to the first informant in weeping and bleeding condition and she narrated the entire incident to her after awakening her. Just thereafter the accused Mukesh had reached there and sought pardon by saying that due to being in drunken state he had done this wrong act. When the father of accused Mukesh Kumar was apprised of this incident he hurled abuses and had given threat to kill the first informant and asked them to keep mum otherwise they would be done to death and he did not allow them to come to the police station. She had secretly come to the police station. On the basis of the above written FIR (Ext.Ka.1) a case was registered against Mukesh Kumar and his father Shankar Lal at Crime No.183 of 2008 under Section 376, 504, 506 IPC in P.S. Karchhana District Allahabad. The Chick FIR was prepared by Constable Moharrir Jai Shankar Pandey which is Ext.Ka.2 and in that regard an entry in the General Diary was also made by him, the extract of which is Ext.Ka.3.
(3.) The investigation of this case was entrusted to S.I. Sri Om Prakash Dwivedi, who referred the prosecutrix to Woman Hospital Allahabad for medical examination. Dr. Noorul Hasan Naqvi (PW-7) had conducted the medico legal examination of the prosecutrix and prepared the medico-legal examination report (Ext.Ka.7). According to this report, on external examination the doctor found the following things:- (I) No mark of injury seen on her private parts. (II)Breast not developed. (III)No axillary hair or pubic hair seen. No history of menstruation Wt - 22 kg Teeth - 12/14 On internal examination the doctor found the following things:- - No mark of injury seen on her private parts. - Redness over labia Minora seen. - Hymen raptured. Tear seen. No P/V bleeding. - Vagina admits one finger easily. The doctor had taken the vaginal smear of the prosecutrix on two glass slides and sent them to Duffrin Lab for detection of spermatozoa and Gonocacai. For age determination the prosecutrix was referred to M.L.N. Hospital for x-ray of (1) wrist joint (2) elbow joint (3) knee joint (4) ankle joint. On obtaining the Pathologist report and Radiologist report the doctor prepared supplementary report in this regard which is Ext.Ka.8. According to this report, no definite opinion regarding rape could be given by the doctor. Redness over Labia Minora was seen. According to the doctor, sign of injury by some blunt object may be suggested. The age of the prosecutrix was found about above 11 years and below 15 years.;