CHANDRA DHARI SINGH,J. - (1.) Heard Sri Rajarshi Gupta, learned Amicus Curiae for the appellant and Sri Rajeev Kumar Mishra, learned A.G.A. for the State.
(2.) This appeal has been directed against the final judgment dated 5.9.2008 passed by the Additional Sessions Judge/Special Judge, S.C. and S.T. Act, Ghaziabad in S.S.T. no.1733/05, (State v. Bhole Sharma) , whereby Additional Sessions Judge after proceedings convicted the accused/appellant for offence punishable under Section 376 I.P.C. and Section 3 (2) v S.C. and S.T. Act for raping the minor girl of seven years old, who belongs to scheduled caste. The accused/appellant was sentenced for life imprisonment and also fine of Rs. 5,000/- for the offence punishable under Section 376 I.P.C. and Section 3(2) v of the S.C. and S.T. Act. In default of payment of fine of Rs. 5000/- he shall undergo further three months imprisonment.
(3.) Brief facts of the case. I. According to the prosecution story, on 22.6.2005 at about 5 P.M., the prosecuterix aged about seven years had gone to the field for grazing goats towards field and at that time the informant was present in the house. When she came back at about 7.00 P.M., the prosecutrix was laying on the cot and there was bleeding from her lower part of her body. She narrated entire story to her mother/informant that a man of Chamri met on the road near Bitora whom she could identify, took her on bicycle behind the school on alluring her of Rs. 2/- and committed rape on her against her will after shutting her mouth. On the same day the informant, mother of the prosecutrix had given a written report to the police station Hapur, Kotwali. II. On the report of the informant, a case was registered as Crime no.85 of 2005, under Section 376 I.P.C. The prosecutrix was medically examined at M.M.G. Hospital, Ghaziabad on the same day at 12.00 A.M. by Dr. Deepa Tyagi. As per the medical report, her hymen fresh torn. There was laceration in pare-urethral area which were bleeding on touch. Blood and discharge of vaginal fluid was taken and sent for test to Pathology Department. Supplementary medical report was also prepared and the prosecutrix was found to be seven years old child. She has proved report Ext. Ka 2 A. The accused person Bhole Sharma was arrested by the Investigating Officer in presence of the victim who identified the accused who had committed rape with the prosecutrix. The accused person had also confessed his guilt before the Investigating Officer. III. The clothes of the prosecutrix which wore at the time of the incident were also taken into police custody. The accused was also sent for medical examination after arrest. IV. The accused person was charged under Section 376 I.P.C. for committing rape in the field of Village Harduwari Nagar under Police Station Hapur when she had gone for grazing the goats. He was also charged under Section 3 (2) V S.C. and S. T. Act for committing offence of rape with scheduled caste girl. The charges were denied by the accused/appellant and claimed to trial. V. The prosecution examined eight witnesses to prove the charges against the accused/appellant P.W. 1 Smt. Leela is the mother of the prosecutrix and also informant of the case. She has proved the written report Ext. Ka 1. She supported the case of the prosecution and stated in her deposition that she is Koli by caste. She further stated that her daughter at about 5.00 P.M. had gone for grazing the goats in the field. At that time age of the prosecutrix was about eight years. When she came after sun-set in the house, her daughter was lying on the cot and there was bleeding from her lower part. The prosecutrix informed her mother and told the entire story of the commission of rape. VI. P.W. 2, Pappu alias Sundar is father of the prosecutrix. He was informed about the entire incident. He deposed that police in his presence and other people of the locality, arrested the appellant/accused at Chamri Gate near Hapur and memo of the arrest was prepared. He had given his thumb impression on the memo of the arrest of the accused. He was also witness of the recovery memo, Ext. Ka3. VII. P.W.3, Dr. Deepa examined the victim on 22.6.2005 in the District Woman Hospital, Ghaziabad. She stated in her deposition that prosecutrix was forcibly raped at 5 P.M. on 22.06.2005 and the injuries found on the body of the prosecutrix can be caused due to rape. She has also proved the supplementary report Ext. Ka3, which was prepared and signed by her. In her opinion, there was injury on the private part of the victim by some blunt object. She further stated that penis may also comes to the category of blunt object. VIII. P.W. 4, the prosecutrix recognized the accused Bhole who was present in the court after seeing him. She further stated that about two years ago at 4.00 P.M. she had gone for grazing the goats near Bitora and at that time, the accused came to her and asked her to accompany him and for that, he will give her Rs. 2/-. He took her on back side of the school and committed rape. He also shut her mouth and when she shouted he ran away. She was bleeding and thereafter she reached her house, when her mother came, then she told entire story. Her mother lodged report and she was medically examined. IX. P.W.5, Umesh Singh is the Investigating Officer of the case who investigated the case after adding of S.C. and S.T. Act and filed a charge-sheet Ext. Ka-4. The statement of the accused person was recorded under Section 313 Cr.P.C. in which he had denied all the allegations made by the prosecution and also stated in the statement that he was falsely implicated in this case. X. P.W. 8, Muni Lal was posted as Sub Inspector at Hapur Nagar Kotwali. He had initially investigated the case. He had recorded the statement of prosecutrix, her mother and had sent the victim for medical examinaiton. He had also recorded statements of the father of prosecutrix. In present of father of prosecutrix and other people, he arrested the appellant/accused on the basis of identification of prosecutrix. He had recorded the statements of witnesses and handed over the investigation to new I.O. after adding of Section of S.C. and S.T. Act.;