AMAR SINGH CHAUHAN,J. - (1.) Challenge in this appeal is to the judgement and order dated 16.4.2012, passed by learned Additional Sessions Judge, (Ex. Cadre), Rampur in Session Trial No. 236 of 2011 ( State vs. Chandra Pal ) whereby the appellant Chandra Pal has been convicted and sentenced to undergo 5 years' rigorous imprisonment and a fine of Rs. 5000/- under section 363 IPC, 7 years' rigorous imprisonment and a fine of Rs. 7000/- u/s 366 IPC and 10 years' rigorous imprisonment and a fine of Rs. 20,000/- under section 376 IPC with default stipulation.
(2.) In short compass, the facts giving rise to the present appeal are that the First Information Report was lodged by presenting a Tehrir with the allegation that informant and her husband alongwith two minor daughters, aged about 11-12 and 5-6 years, had gone to fair of Rathora, as husband of the informant is Mochi (cobbler). In the adjoining one Chhtrapal, son of Phool Singh, stalled the shop of Pakauri. He accompanied with another person who took the liquor and ate Pakauri and came to the husband of the informant by saying that they shall provide food to their girls as food in the Bhandara had been finished. They took away their daughters. The younger daughter came back but elder daughter, aged about 11-12 years, did not return. On being recovered, the victim was got medically examined and her statement under section 164 Cr.P.C. was recorded. The Investigating Officer after concluding the investigation submitted charge-sheet against the appellant, Chandra Pal under sections 363 , 366 and 376 IPC. The accused-appellant has been charged under sections 363 , 366 and 376 IPC to which he pleaded not guilty and claimed to be tried.
(3.) To bring home the guilt of the accused, the prosecution has examined as many as eight prosecution witnesses. P.W.-1 is the victim. She stated that before the Holi festival she and her sister alongwith parents had gone to the fair Rathaura. Her father is handicapped and doing the work of Mochi. By the site one Chhatrapal stalled the shop of Pakauri. The accused Chandra Pal came there and took liquor and also gave the liquor to her father and at about 9.00 P.M. the accused Chandra Pal and shopkeeper Chhatrapal, on the pretext of providing food, took her alongwith her younger sister. After giving food in the hotel the accused Chandra Pal enticed away to his house and committed rape after disrobing her cloth. P.W.-2 is Smt. Shakuntla Devi, the mother of the victims. She has stated that she alongwith her two minor daughters had gone to the fair of Rathaura in the month of Falgun. Her husband is handicapped and doing the work of Mochi. Side shopkeeper Chhatrapal and his companion Chandra Pal took away their daughters for providing food. Her younger daughter came back but her elder daughter did not return. The police has recovered her daughter aged about 12 years alongwith the accused Chandra pal. P.W.-3 is Pooja, the sister of the victim. She also supported the prosecution case by saying that the accused Chandra Pal enticed away her sister on the pretext of providing food. She returned back alongwith Chhatrapal who is the side shopkeeper. P.W.-4 is Ram Chandra, the father of victims. He has supported the prosecution evidence. P.W.-5 is Dr. Jyotsna Pant. She has stated that on 07.3.2011 she was EMO in the District Female Hospital, Rampur. She had medically examined the victims at about 10.00 A.M. who were brought by Mahila Constable Vijay Lakshmi and identified the victim. Her height was 140 C.M., weight 29 K.g, teeth 14/14, axillary hair not present, breast developing (only beast buds present). In the internal examination, no mark of injury over perineum, Hymen not torn, Vagina admits tip of little finger, no bleeding, outside of the hymen redness and congestion at 7 o' clock position present. P.W.-6 is the constable No. 405 Ranvir Singh. He has stated that he was posted as a constable clerk in the Police Station Milak, District Rampur on 04.03.2011 and on that date at about 16.15 P.M. case was registered bearing Case Crime No. 360/2011 under sections 363 , 366 , 376 IPC vide Chik FIR No. 62 of 2011. He has prepared the chik report no. 62 of 2011 at case crime no. 360 of 2011 under sections 363 , 366 , 376 IPC and made a G.D. Entry at Record No. 21. He has proved the Chik FIR, G.D as Exhibit-ka-7 and ka-8. P.W. 7 is the Dr. R.K. Sharma, Senior Radiologist. He has stated that x-ray was conducted by technician in his supervision at plate no. 305. Her right elbow, right knee and epiphysis of right wrist were not found fused. Pisiform bone was appeared in corporal bone of right wrist. P.W.-8 S.I. Vijendra Singh is the I.O. of the case. He has stated that on 04.3.2011 he was posted at S.I. at Police Station Milak, District Rampur. On that date the investigation of this case was handed over to him. He copied the chik FIR and G.D. He also recorded the statement of chik writer on 05.3.2011. He has recorded the statement of mother and father of the victim and also prepared the site plan. On the said date the victim was arrested alongwith accused Chandra Pal. The statement of victim as well as accused was recorded under section 161 Cr.P.C. On 06.3.2011, the victim was got medically examined and also got recorded the section 164 Cr.P.C. After copying x-ray pathology report in the C.D., he also recorded the statement of younger sister of the victim and submitted the charge-sheet. ;