ALOK K.SINGH,J. - - (1.) THIS criminal appeal has been preferred against the judgment and order dated 19.11.2002 passed by Sri R. P. Singh, VIth Additional Sessions Judge, Gonda in Sessions Trial No. 232 of 1995, convicting the appellant -Asrey son of Kallu under Section 363, I.P.C. and sentencing him for two years' rigorous imprisonment and to pay fine of Rs. 500 in default one month's additional rigorous imprisonment ; under Section 366, I.P.C., three years' rigorous imprisonment and to pay fine of Rs. 1,000 in default two months' additional rigorous imprisonment, under Section 376, I.P.C., seven years' rigorous imprisonment and fine of Rs. 2,000 in default three months' additional rigorous imprisonment. Appellants -Kallu and Atwari were convicted only under Sections 363 and 366, I.P.C. Under Section 363, I.P.C., both were sentenced to two years' rigorous imprisonment and fine of Rs. 500 each, in default one month's additional rigorous imprisonment. Under Section 366, I.P.C., both were sentenced to three years' rigorous imprisonment and fine of Rs. 1,000 each, in default two months' additional rigorous imprisonment.
(2.) THE facts wrapped in brevity are as under : The complainant Kabir Saran resident of village Bilauli Bhgha Jot, Police Station Utraula, district Gonda, lodged a report on 3.6.1991 at 7.10. p.m. (Ext. Ka -1) at Police Station, Utraula saying that on 1.6.1991 early in the morning at about 4 a.m. when his 14 years old daughter, Samundra had gone to ease out in the east of the village, all the four accused who belong to the same village enticed and kidnapped her with intention to perform her marriage. After registration of the case the matter was investigated upon. On 20.8.1991 the girl was recovered from the possession of Ram Asrey in front of brick kiln of Shyam Lal in village Banbhusa under Police Station, Utraula, vide Fard (Ext. Ka -2). Then on 21.8.1991 she was got medically examined. The vaginal report was found negative. The age of the girl on the basis of ossification report and the report of radiologist was found to be 15 years. She was also found to be used to sexual intercourse. On 27.8.1991 her statement under Section 164, Cr. P.C., was recorded in which she stated to have gone on her own sweet will with convict Atwari. She did not make any allegation against any of the remaining accused also (Paper No. Ka -17/1). After completing the investigation the charge -sheet was submitted against the accused persons under the aforesaid sections. The case was committed by the concerned C.J.M. to the Court of Sessions. During trial in all seven witnesses were examined in support of the prosecution case. P.W. 1 Kabir Saran is the complainant who besides proving the report (Ext. Ka -1) and recovery fard of the girl (Ext. Ka -2) also deposed that the residences of convict Kallu and Asrey are towards north of his house. On the day of occurrence, his wife and daughter were lying on separate cots outside the house. At about 4 a.m. when his daughter went for easing Asrey, Kallu, Atwari and Kanhaiya Lal kidnapped his daughter with intention to perform her marriage. It is noteworthy that during trial Kanhaiya Lal had expired and as such the case has already abated against him. The complainant further deposed that after about 2 -3 months his daughter was recovered and was given in his custody. P.W. 2, Smt. Indrani, is the wife of the complainant who has also made almost similar deposition. P.W. 3 Ayodhya is aged about 60 years. He is a witness of the recovery of the girl. P.W. 4 is the prosecutrix herself. She has deposed that while she had gone towards east of the village for easing out at about 4 a.m. all the four accused got hold of her and gave assurance of her marriage. At that time she was 14 years of age. They took her to Utraula. There she boarded a Bus alongwith convict Asrey. From that place the remaining convicts returned back. Convict Asrey took her to a village where she lived with him for about 15 days. During that period Asrey had sexual intercourse with her against her wishes several times. Asrey also took her to other places and there also he committed sexual intercourse with her against her wishes. Then finally while she was coming from Utraula she was arrested alongwith Asrey by the police and thereafter she was given in the custody of her father. She denied to have given statement (under Section 164, Cr. P.C.) to the Magistrate to the effect that she went with Asrey of her own sweet will and that her step mother is a lady of bad character. P.W. 5 Sri R. P. Maurya is the Senior Pathologist who prepared the report of vaginal smear (Ext. Ka -4). As Dr. Km. L. Nandan, who had performed medical examination of the girl, had expired, he also proved the medical examination report as Ext. Ka -6. No definite opinion about rape could be given in view of the vaginal smear report. S. I. Bhunnu Yadav has been examined as P.W. 6 who after recording statements of the witnesses inspected the site and prepared the site plan (Ext. Ka -7). He told to have recovered the girl on 20.8.1991 in the presence of witness Ayodhya and Bhiki and father of the prosecutrix from the custody of Asrey vide Ext. Ka -2. He also prepared a separate site plan in this regard (Ext. Ka -8). He also took into possession the petticoat of the girl which contained few stains of semen, vide (Ext. Ka -3). The accused -Kanhaiya Lal was arrested on 21.8.1991 and his statement was also recorded. Thereafter this witness was transferred. He also proved the original chik (Ext. Ka -9) and relevant G. D. (Ext. Ka -10). After his transfer the charge -sheet was submitted by S.I. Ram Naresh Yadav. This witness proved the charge -sheet (Ext. Ka -12). Radiologist Dr. J. N. Prasad has been examined as P.W. 7 who proved the ossification report (Ext. Ka -13) according to which the age of the girl was found to be 15 years.
(3.) IN the statements under Section 313, Cr. P.C. all the accused denied the evidence which came against them. None of them adduced any evidence in defence.;