MOHD ARIF @ CHAND Vs. STATE OF U P

JUDGEMENT

(1.) THE instant Criminal appeal has been preferred by the appellant -Mohd. Arif @ Chand challenging the judgment and order dated 19.03.2004 passed by the Additional Sessions Judge/Fast Tract Court -III, Lucknow, in Sessions Trial No.512 of 2003 arising out of Case Crime No.324 of 2002, Police Station Krishna Nagar, District Lucknow, whereby the appellant was tried and convicted for the offences under Sections 366 and 376 IPC. For the offence under Section 366 IPC he was sentenced to undergo rigorous imprisonment for a period of five years and also with fine of Rs.2000/ - with default stipulation of two months additional imprisonment. For the offence under Section 376 IPC he was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs.5000/ - with default stipulation of three months additional imprisonment.

(2.) ALL the sentences were directed to run concurrently.

(3.) ACCORDING to the version of the FIR, the case of the prosecution was that on 29.10.2002 Smt. Sushma Shukla, lodged an FIR at 10.30 A.M. with the allegation that her minor daughter aged about 17 years had left her house at 11.00 A.M. on 28.10.2002 in connection with survey work. When she did not come back till evening then the complainant and his son Rajiv Shukla started her search. Their efforts failed, then they came back to their house. One Vinod Bhaiya told her that around 7.00 or 7.30 A.M. some person told him on phone that the victim and the appellant are going to solemnize their Court marriage in Barabanki. After getting this information from Vinod Bhaiya the complainant got the FIR scribed by his son Rajiv Shukla and on the basis of the same the case was registered. During investigation, on the same day, the victim was recovered from the house of the appellant and the place of occurrence and the place of recovery were also inspected by the Investigating Officer. The statement of the victim was also recorded under Section 164 Cr.P.C. and the victim was referred for her medical examination which took place in Women Hospital, Thakurganj, Lucknow, on the same day at 10.00 P.M. In the medical examination report her breasts were found to be well developed and there was no fresh injury on the body of the victim and in her internal examination no injury was seen. On separating labia majora slight redness was seen at the fourchett. Tenderness was also present on touching fourchett. Hymen was old torn and healed. Vagina admitted one finger and no bleeding was seen. Vaginal smear slides were prepared and the victim was referred for x -ray for determination of her age. On the basis of aforesaid tests, the radiological age of the victim was reported to be above 18 years and no definite opinion about rape was given. After completing the investigation charge -sheet was filed against the appellant.