BAGGHU Vs. STATE OF U P

JUDGEMENT

(1.) CHALLENGE in the instant criminal appeal is the judgment and order dated 27.03.2012 passed by Additional Sessions Judge, Court No. 2, Lakhimpur Kheri in Sessions Trial No. 732 of 2002, arising out of Case Crime No. 244 of 2002, under sections 376, 506 IPC & 3(1) (12) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Pasgawan, District Kheri, whereby the appellants were convicted for the offence under Section 376 IPC and were sentenced to undergo rigorous imprisonment for a period of 10 years and also with fine of Rs.10,000/ - with default stipulation of six months additional imprisonment. The appellants were further convicted under Section 506 IPC and were sentenced to undergo rigorous imprisonment for a period of 2 years. However, they were acquitted of the charge under Section 3(1)(12) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

(2.) IT is an admitted fact that against the acquittal for the offence under Section 3(1)(12) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, no appeal, either by the State or by the victim has been filed.

(3.) IN brief, the case of the prosecution, as disclosed in the first information report, was that on 04.09.2002 at about 11.00 AM minor daughter of the complainant aged about 15 years had gone to attend the call of nature in the sugar cane field of one Madan Singh. After attending the call of nature, when she was coming back then the appellants caught hold of the victim and fell her in the same sugar cane field and forcibly committed gang rape with her. On raising alarm by the victim, Sudhir Kumar and Mahendra reached there. Thereafter the appellants ran away from there extending threats of dire consequences. The complainant was not present in the village on the relevant date. When he came back then he was informed about this incident and thereafter he lodged the first information report of this case. After registration of the case, the victim was referred for medical examination which took place on 07.09.2002 at District Women Hospital, Lakhimpur Kheri. As per medical examination report, she was of average built and fully conscious. Her hight was 152 cm and weight was 35 kg. Teeth were 14/14, breasts were developed, public and axillary hairs were developed and last mensuration had taken place one month back. No mark of injury, dust, dirt or blood was seen on external genitals or thighs. Hymen was old and torn. Vagina admitted two fingers easily. Her internal examination was painless, uterus was normal in size. Vaginal smear slides were prepared and sent to pathologist for examination. She was referred to radiologist for X ray examination for determination of her age. No definite opinion could be given by the doctor regarding the rape. After the aforesaid tests, the age of the victim was reported to be above 16 years and below 18 years and no spermatozoa were found in the vaginal smear report. The investigating officer inspected the place of occurrence and after completing the investigation, charge sheet was filed against the appellants.