CHANDRA DHARI SINGH,J. - (1.) Heard Sri Amrendra Pratap Singh, learned counsel for the appellant and Sri Nagendra Bahadur Singh, learned A.G.A. for the State.
(2.) The present jail appeal has been filed by the appellant-Zukkur Ali against the judgment and order dated 24.11.2010 passed by the Special Judge, S.C.& S.T. Act , Basti in S.S.T. No.31 of 2010 whereby Special Judge, S.C. and S.T. Act after proceedings, convicted the accused/appellant for offence punishable under Section 376 I.P.C. and Section 3(2) 5 of the S.C.& S.T. Act for raping a minor girl of 14 years who belongs to Scheduled Caste. The accused/appellant was sentenced to imprisonment for life and also fine of Rs.50,000/- for the offence punishable under Section 376 I.P.C. and Section 3(2) 5 of the S.C. and S.T. Act . In default of payment of fine of Rs.50,000/- he shall undergo further one year simple imprisonment.
(3.) Brief facts of the case I.According to the prosecution story, the appellant committed repeatedly rape upon the prosecutrix and whenever she opposed his act, he threatened to the prosecutrix to kill her, if she will tell anybody about the incident. Due to repeated rape, the prosecutrix became pregnant and after 5-6 months pregnancy, ladies of the family noticed her pregnancy and asked about the pregnancy. She narrated the whole incident and said that she was repeatedly raped by the appellant and due to that she became pregnant. On 6.10.2009, mother, brother and other people of the village went to the house of the appellant and asked about the incident, on the query, the appellant started abusing and quarreling with them and also threatened to kill all of them, if they shall lodge any complaint in the police station regarding the incident. The brother of the prosecutrix made a written complaint on 6.10.2009 at the police station Chhawani. On the report of the informant, a case was registered as Case Crime no.680 of 2009 against the appellant. The prosecutrix was medically examined by Doctor Neelam Singh, Medical Officer, New C.HC, District Sant Kabir Nagar. As per the medical report, the prosecutrix was pregnant of 5-6 months and hymen was torn but no semen was found. She further stated that no injury was found on private part. Doctor has proved the report Ext.Ka-3. The appellant was arrested on 7.10.2009 in the presence of the victim, who identified the accused-appellant. The accused-appellant has also confessed his guilt before the Investigating Officer. II.The statement of the prosecutrix under Section 164 Cr.P.C. was recorded on 22.10.2009. In her statement she stated that about 5-6 months ago, when she went to the field with her goats for grazing, at that time the appellant met there. He caught the prosecutrix and by applying force he committed rape with her. Whenever she tried to escape herself, he threatened to kill her. Due to fear she never disclosed the incident to any relative or any member of the family. Appellant had committed rape repeatedly 3-4 times and due to that she become pregnant. She further stated in the statement that she was raped 3-4 times in the interval of 4-5 days. When she became pregnant and pregnancy of 5-6 months, the member of the family noticed her pregnancy and then asked about the reason of the pregnancy. The accused was also sent for medical examination after arrest. III.The accused was charged under Section 376 I.P.C. for committing rape. The appellant was also charged under Section 3(2) 5 of S.C.& S.T. Act for committing offence of rape upon the scheduled cast girl. The charges were denied by the appellant-accused and claimed for trial. IV.The prosecution examined nine witnesses to prove charges against the accused-appellant namely P.W.1 prosecutrix, P.W.2 complainant-Santoshi, brother of the prosecutrix, P.W.3, Smt. Sunra Devi, mother of the prosecutrix, P.W.4, Dr.D.K.Srivastava, P.W.5, Dr.Neelam Singh, P.W.6,Smt.Sunita, sister-in-law of the prosecutrix, P.W.7,Radhey Shyam, Deputy S.P., P.W.8,Jai Shanker Tiwari, Constable and P.W.9,Raj Bahadur Singh, Deputy S.P.. The accused-appellant examined D.W.-1, Ramjan Ali. D.W.2 Lallu Singh was examined as defence witness. V.P.W.1, the prosecutrix stated in her testimony that the incident took place one year before and at that time her age was 14 years. She was under the guardianship of mother and brother as her father had died. She further stated in the testimony that she went to field for grazing the goats and at that time, the appellant who belongs to the same village met her and by applying force he committed rape in the field of sugarcane. She further stated in the testimony that she was raped repeatedly 3-4 times in the interval of 4-5 days. She did not disclose the fact to the mother and brother as the appellant threatened her to kill, if she will disclose anything about the incident to anyone. Due to the repeated rape, she became pregnant and after 4-5 months' pregnancy, member of the family noticed her pregnancy than she was asked about pregnancy. She told the members of the family that she was repeatedly raped by the applicant but due to fear, she did not disclose to anyone. She further stated in the testimony that when she disclosed the facts to the sister-in-law and mother about rape, they went to the house of the appellant and asked about the incident. On the query, he started quarreling and abusing to the family members and villagers. The appellant threatened to kill all of them, if they will lodge any report in the police station. He further stated in the testimony that her brother P.W.2 made a written complaint at the police station and she was sent to the hospital for medical examination. On the same day the police had come her house and recorded her statement. She stated in the testimony that she had given birth a baby girl after 3-4 months from the date of the complaint. She further stated that her statement was recorded by the Magistrate under Section 164 Cr.P.C. and she had given thumb impression on the statement . She had also proved the statement which was given before the Magistrate. It was exhibited as Ext. Ka-1. The prosecutrix stated that now she is married and she came here for testimony for deposing her statement with her husband. In the cross examination she had narrated the same thing as narrated in the chief examination of testimony. No contradictory material has come out in her cross examination. VI.P.W.2, stated in the testimony that she belongs to scheduled caste and the appellant is also resident of the same village. The prosecutrix is his sister. At the time of the incident she was only 14 years old. His father had died. He was only the person to look after her. He further stated in the testimony that one year ago, when her sister used to go in the filed for purpose of grazing goats, at that time appellant met her and raped forcibly. The appellant also threatened her sister to kill her, if she will make anything about the incident. Due to fear, she never told anything about the incident to family members. When she became pregnant of 4-5 months, ladies of the family noticed her pregnancy, then she was asked about the reason of the pregnancy then she narrated the whole incident which took place 4-5 months ago. He also narrated in the testimony that her sister told them that the appellant raped repeatedly 4-5 days and due to that rape, she became pregnant. He further stated in the testimony that he went along with other members to the house of the appellant and asked about the incident. He started abusing and threatening all of them. He wrote written complaint in the police station regarding accident and on the complaint the police lodged an F.I.R. He took his signature on the complaint. He also stated that on his instance the complaint was written i.e. Ext. Ka-1 A. He stated that C.O. of police came at the place of the incident and recorded the statement of the witnesses. In the cross examination, he again narrated that her sister was repeatedly raped and due to rape, she became pregnant. Nothing contradictory material has come out in the cross examination of P.W.2. He has fully supported the prosecution case. VII. P.W.3, Sunra Devi, mother of the prosecutrix stated in her testimony that her daughter was 14 years old at the time of incident. She used to go to the filed for purpose of grazing the goats. The appellant belongs to the same village. He met the prosecutrix at the field when she was away from the house for grazing the goats in the field. She was raped forcibly by the appellant-accused. She further stated that prosecutrix was raped repeatedly by the appellant and due to that she became pregnant. After 4-5 months of pregnancy, she noticed her pregnancy and then asked to the prosecutrix about her pregnancy. She informed P.W.3 about the incident of rape committed by the appellant. She along with daughter-in-law and son went to the house of the accused and asked about the incident of rape which was committed by him. He started abusing and threatening to kill all of them, if complaint will be lodged by her son at the police station about the incident. In the cross examination, she narrated same thing which was narrated in the chief examination of testimony. No contradictory material has come out in the cross examination. VIIIP.W.4, Dr. D.K. Srivastava stated in the testimony that on 8.10.2009, he was posted as Radiologist in the District Hospital Basti. On that date, the prosecutrix along with lady constable Savitri Mishra came to the hospital for examination of age. X-ray of the prosecutirx was done for purpose of examination of her age. On the basis of X-ray report and after analysis of the medical report, it was found that prosecutrix was 15 years old. He has also proved the X-ray and medical report that was exhibited as Ext.Ka-2. IXP.W.5, Dr. Neelam Singh stated in the testimony that on 7.10.2009, she was posted as Medical Officer, B.R.T.K., Women Hospital, Basti. She further stated that on 7.10.2009 at about 2.30 p.m., the prosecutrix came with lady constable Savitri Mishra for her medical examination. She stated in the testimony that at that time prosecutrix's height was 4' 10" weight 32 Kg. After examination she found that the prosecutrix was pregnant of 20-22 weeks. She also stated in the testimony that no injury was found on private part. No semen was found on the body of the prosecutrix. She proved the medical report as Ex.Ka-3. XP.W.6 Sunita is sister-in-law (Bhabhi) of the prosecutrix. She stated in the testimony that at the time of incident age of the prosecutrix was about 14 years. She stated that the appellant, who belongs from her village, committed rape forcibly upon the prosecutrix and due to rape the prosecutrix became pregnant. She stated in the deposition that the prosecutrix narrated the facts to her and also stated that she was pregnant due to repeated rape committed by the appellant. When mother-in-law and husband along with other villagers went to the house of the appellant, he started abusing and threatening all of them. She further stated that her husband made a complaint to the police station and on his complaint the F.I.R. was lodged. XIP.W.7, Radhey Shyam, Deputy S.P. stated in his testimony that on 9.10.2009, he was posted as Circle Officer, Hariya. He stated that C.O. Rudhauli, conducted the investigation of case crime no.680 of 2009 at the initial stage. On 9.10.2009, he had taken over the investigation of the said case. He proved the remand of the appellant and also proved the report in which it was stated that the prosecutrix had recorded statement under Section 164 Cr.P.C. before the Magistrate. On his direction, the prosecutrix was sent for X-ray and medical test in the respective hospitals. He narrated in his statement that he recorded the statement of lady constable Savitri Mishra. On the basis of the statement of the witnesses and after the inspection of the site of the incident, sufficient materials were collected against the accused-appellant, therefore, chargesheet was filed for the offence punishable under Section 376 , 504 and 506 I.P.C. and 3 (2) 5 S.C. and S.T. Act against the appellant. XIIP.W.8, Jai Shanker Tiwari, Constable-Muhrir stated in the statement that on 6.10.2009, he was posted as Constable- Muharir at Police Station Chhawani. He had prepared Chik No.116 of 2009 and also registered case crime no.680 of 2009 for the offence punishable under Section 376 , 504 and 506 I.P.C. and Section 3 (2) (5) S.C. and S.T. Act against the appellant. He proved his signature on the Chick and also proved Ext.Ka-7. In the cross examination, he stated that it is wrong to say that case was registered as ante time and ante dated. XIIIP.W.9 Raj Bahadur Singh, Deputy S.P. stated in his statement that on 6.10.2009, he was posted as C.O., Rudhauli. He went to the site and made site plan. He also recorded the statement of complainant Santoshi and the prosecutrix. He proved site plan Ext.Ka-9. He also proved the signature on the site plan. He was informed that the appellant was arrested. On that information, he went to the police station Chhawani and recorded the statement of the accused-appellant and same was entered in the case diary. ;