AMAR SINGH CHAUHAN,J. - (1.) Challenge in this appeal is to the judgment and order dated 17.11.2015 passed by the learned Additional District and Sessions Judge, F.T.C. Court No. 1, Muradabad in Sessions Trial No. 98 of 2011 (State Vs. Dilip Giri) arising out of Case Crime No. 115 of 2010, under Section 376 IPC, Police Station Hazrat Gadi, District Muradabad, whereby the appellant Dilip Giri has been convicted and sentenced to 14 years rigorous imprisonment and a fine of Rs. 50,000/- with default stipulation.
(2.) In a short compass, the facts which give rise to the present appeal are that first information report was lodged by the informant on 14.7.2010 at about 15:10 hrs with the allegation that on the said date in the morning, he was doing work in the sugar cane field. The informant's sister came there with meal. After having food and finishing work, he returned to the house but his sister gone to collect woods and did not return back. Again he reached the field at 1:00 P.M. and found that his sister was crying in the sugarcane field and accused Dilip Giri was committing rape. He tried to apprehend him but could not succeed and appellant fled away. After the registration of the case, the investigation was entrusted to Investigating Officer who prepared the site plan, got victim medically examined, took possession of the salvar and chunni and sent to the forensic laboratory for obtaining reports, prepared recovery memo, copied the chik FIR and G.D. in the case diary and after concluding the investigation, charge-sheet was submitted against the appellant under Section 376 IPC. The charges was framed in the aforesaid section to which accused appellant denied and claimed to be tried.
(3.) To bring home the guilt of the accused, the prosecution has examined as many as six witnesses. P.W. 1 is the informant Sugar Pal Singh. He has stated that he was doing work in the sugar cane field on 14.7.2010. His sister came there with meal and after taking food and finishing the work, he returned to the house but his sister gone to collect woods. When he returned at 1:00 P.M. at the field he found that his sister was crying and accused-appellant after committing rape fled away. P.W. 2 is the victim. She has stated that two years ago when she went to the field of sugarcane to give meal to her brother and from there she went to collect woods, then the accused-appellant Dilip Giri, resident of her village, dragged her to the field of sugar cane and committed rape against her will. P.W. 3 is the Suresh, the eye-witness but he did not support the prosecution case and declared hostile by stating that he could not see the accused on the place of occurrence and he was out of the village on the said date. P.W. 4 is Constable Virendra Kumar who is scriber of the FIR and stated that he was posted as Constable Clerk, prepared the chik report and also made entry in the G.D. and proved the same. P.W. 5 Dr. Manisha Verma has stated that on 14.7.2010, she was working as Emergency Medical Officer in the District Hospital, Moradabad. The victim got medically examined by her at 08:45 P.M. The victim has 149 cms of height, teeth 14/14, breast fully developed, hymen old torn, vagina admit one finger, vagina smear was taken for pathology test. No injury was found on the private part of the body. In the ossification test report, the age of the victim was found 16 years old. No opinion about the rape can be given. P.W. 6 S.I. Sartaj Ali is the Investigating Officer of the case. He has stated that he copied the chik FIR and the G.D. in the case diary and recorded the statement of the complainant and victim. He has also prepared the site plan and took in possession of the under-garments of the victim and also copied the statement under Section 164 Cr.P.C. in the case diary. After completing the investigation, he has submitted the charge-sheet. ;