- (1.) IMTIYAZ Murtaza, J. This appeal is directed against the judgment and order dated 5-10-2005 passed by Addl. Sessions Judge, F. T. C. 1 Muzaffarnagar in S. T. No. 377 of 2004 whereby the appellant is convicted under Section 376, I. P. C. and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- and in case of default in payment of fine, further imprisonment for one year.
(2.) THE brief facts of the case mentioned in the report lodged by Muzaffar Ali at P. S. Kotwali Nagar Muzaffarnagar are that informant's daughter Shabana who was aged about 16 years and she was a minor and was under his guardianship. She was of a low intelligence and Irshad was his maternal uncle. Naushad is son of Irshad and Shehnaz is wife of Irshad, being relative they used to visit each other house. Naushad was very clever. He has enticed his daughter Shabana and cheated her on the pretext that he will marry her and committed sexual intercourse with her. His daughter became pregnant and about 10 days back Shabana had narrated to her mother as to how she was raped by Naushad. He and his wife had talked with Irshad and his wife and told them that his son has committed rape against her will by giving false promise of marriage and she has become pregnant. Irshad and Shehnaz had accepted their fault and requested for excuse and promised to punish Naushad and thereby postponed the dispute. A day before lodging the report a Panchayat was held in the village, which was attended by Furkan son of Ejaj, Anwar son of Farooq, Seetu son of Mustakeem and others. Irshad and Shehnaz had told them to accept 10-20 thousand rupees but they will not marry his son with Shehnaz and in case any action is taken he will be killed. He was confident that on the instigation of Irshad and Shehnaz, Naushad had committed rape with her daughter. On the basis of above information case crime No. 115 of 2003 was registered at P. S. Kotwali Nagar, Muzaffarnagar. After the registration of the case S. I. Kiran Pal Singh commenced investigation. He has proved the chik F. I. R. and G. D. entry. On 14-3-2003 he recorded the statement of the informant. He reached at the house of the informant and recorded the statement of informant's wife and victim Km. Shabana. He prepared the site plan on the pointing out of Shabana, which is Ext. Ka-5. On 15-5-2003 Irshad was arrested. On 17-9-2003 Naushad was arrested. On 18-9- 2003 he recorded the statements of Furkan and Anwar and on 20-9-2003 submitted charge- sheet, which is Ext. Ka-8. Dr. Abha had medically examined Km. Shabana on 14-9-2003 at 3 p. m. She found that Shabana was fully conscious and was oriented to time and place, her height was 145 cm. weight was 42 Kg. and teeth were 14/14. In the external examination Doctor had found no mark of injury on her body. Axillary hair present were small, (shaved four days back ). Breast were developed, on palpation- fundal, height about 24 weeks, quickening present according to her, P/v- (pervergivium ). No mark of injury on her private parts. Pubic hair present (small) (. . . . . . shaving four days back) Hymen torned old. No bleeding P/v OS close uterus soft. Two vagina smear slides prepared and sent to pathology for District Hospital for the evidence of any spermatozoa or gonococci. She was referred to the CMO for the age. After the submission of the charge-sheet the case was committed to the Court of Sessions. The Sessions Judge had framed charge under Section 376, I. P. C. against the appellant and Section 376 read with Section 109, I. P. C. against Irshad, both were further charged under Section 506, I. P. C. The Sessions Judge after considering the evidence on record convicted the appellant, as aforesaid, hence this appeal.
(3.) IN order to prove its case the prosecution has examined five witnesses in all. The case of the defence was of denial and they did not produce any witness in their defence. P. W. 1 Shabana deposed that Irshad was his grand father in relation, he was maternal uncle of his father and Naushad was his son. About quarter and two years back, Naushad used to visit her house and sometime used to sleep with her, at that time her age was 15 years. Naushad used to tell her that he will marry her and used to commit rape. He had committed rape 15-20 times in a year and on account of rape she became pregnant. She asked him to marry her but he had refused. She had told her mother about rape. Her mother and father Muzaffar Ali talked with Irshad, Naushad and Shehnaz. Irshad and Shehnaz had accepted their fault but Naushad refused to marry her. Thereafter a Panchayat was held in the village and Naushad refused to marry her. He asked her to accept 10-20 thousand rupees and refused to marry. The report of the occurrence was lodged by her father. She was medically examined. A girl was also born due to rape committed by Naushad.;