Sanjay Ram vs The State Of U.P.
2023 Latest Caselaw 1399 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on: 6.1.2023
 
Delivered on: 13.1.2023
 
Court No. - 16
 

 
Case :- CRIMINAL APPEAL No. - 1303 of 2005
 

 
Appellant :- Sanjay Ram
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Anil K. Tripathi,Vijay Kumar
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mohd. Aslam,J.

1. Heard Sri Anil K. Tripathi, learned counsel for the appellant, Sri Manoj Singh, learned A.G.A. for the State and perused the record.

2. The instant criminal appeal under Section 374(2) Cr.P.C. is filed against the impugned judgment and order dated 05.08.2005 passed by Additional District & Sessions Judge, Court No.4, Hardoi in Sessions Trial No. 637 of 2001 (State vs. Sanjay Ram), arising out of Case Crime No. 604 of 2000, under Sections 363, 366, 376 I.P.C., Police Station- Kotwali Sahar, District- Hardoi, whereby the accused-appellant was convicted and sentenced to undergo RI of 03 years and fine of Rs.1,000/-, in default six months additional rigorous imprisonment under Section 363 I.P.C., to undergo RI of 07 years and fine of Rs.2,000/-, in default six months additional rigorous imprisonment under Section 366 I.P.C. and to undergo RI of 10 years and fine of Rs.3,000/-, in default one year additional rigorous imprisonment under Section 376 I.P.C. All the sentences were directed to run concurrently.

3. In brief, the prosecution case is that the father of the victim X lodged the first information report on 26.11.2000 at 15:40 hours on the basis of written Tahrir against the appellant and two others alleging therein that on 22.11.2000 at about 06:30 a.m. his wife and daughter, aged about 15 years, had gone to attend the call of nature and while they were returning to home, the accused Santosh, resident of his village, Sanjay and Tapan Sadhu started talking with his daughter on the way and his wife came to house but his daughter did not come to the house. He searched his daughter but did not find her. It is further alleged that two villagers Mohan Lal Gupta and Phool Chand had seen his daughter going towards Hardoi Railway Station along with accused Tapan, Sanjay and Santosh. On the basis of written Tahrir (Ext.Ka.1), PW-5 HCP Parideen Rawat scribed the Chik report (Ext.Ka.3) on 26.11.2000 at 15:40 hours and registered the Case Crime No. 604 of 2000, under Sections 363, 366 I.P.C. at Police Station Kotwali City, District Hardoi by making necessary entry in GD Report No. 28 at 15:40 hours on 26.11.2000 (Ext.Ka.4). After fourteen days of the occurrence, i.e., on 6.12.2000, the victim X was recovered from the Railway Station Hardoi along with accused-appellant Sanjay Ram who was arrested and the victim X was sent for medical examination on the same day along with lady Constable 215 Abha Jaisawal. The victim X was medically examined on 06.12.2000 at 12:30 hours by PW-6 Dr. Sadhana Pathak. She found that the breasts of the victim X was developed. Axillary and pubic hairs were found present. No marks of external injury was found. On internal examination, hymen was found old torn and healed up. Vagina admits two fingers easily; no recent injury found on private part. Vaginal smear was taken and sent for pathological examination for presence of spermatozoa. X-ray of right elbow joint, right wrist joint and right knee joint for confirmation of age was advised. PW-6 Dr. Sadhana Pathak prepared the medical report (Ext.Ka.5) of the victim in his own handwriting at the time of medical examination. In the vaginal smear report, no spermatozoon was found. X-ray of the victim X was conducted under the supervision of PW-3 Dr. Ramesh Chandra Agrawal. He prepared the X-ray report dated 6.12.2000 ( Ext.Ka.2) on the basis of X-ray plate no. 2532R (Material-Exhibit-1) in which he found epiphyses around the elbow joint and knee joint are fused, except upper end of fibula which is almost fused. Epiphyses at lower end of radius and ulna were found in process of fusion. PW-6 Dr. Sadhana Pathak prepared the supplementary medical report (Ext.Ka.6) of the victim X on 08.12.2000 on the basis of pathological report and X-ray report. She opined that the victim was aged about 17 years and she was habitual of sexual intercourse. No opinion about rape was given.

4. The investigation of the case was conducted by PW-7 Sub-Inspector S.M. Zaidi. On 27.11.2000, he copied the chik report and GD registering the case in the case diary and also recorded the statement of witnesses Mata Deen and Smt. Ram Devi. He inspected the place of occurrence and prepared the site-plan (Ext.Ka.7). On the same day, he also recorded the statements of other witnesses and arrested the accused Tapan and Santosh and recorded their statements. On 06.12.2000, he apprehended accused Sanjay Ram and the victim at Railway Station Hardoi and arrested the accused Sanjay Ram and recorded their statements. He sent the victim for medical examination. He copied the medical examination report and X-ray report of the victim X in the case diary. On 13.12.2000, the Investigating Officer recorded the statement of witnesses Mohan Lal and Phool Chand. The statement of the victim was recorded under Section 164 Cr.P.C. before the Magistrate on 14.12.2000. He copied the statement of the victim recorded under Section 164 Cr.P.C. in the case diary. After completing investigation, he filed the charge-sheet (Ext.Ka.8) against the accused-appellant Sanjay Ram under Sections 363, 366, 376 I.P.C. on 14.12.2000.

5. Cognizance of offence against the accused-appellant was taken on 09.02.2001 by learned Chief Judicial Magistrate, Hardoi and after complying the provision of Section 207 Cr.P.C. the case was committed to the Court of Sessions. Later on, the case was transferred to the Court of Additional Sessions Judge/Fast Track Court-V, Hardoi and the charges under Sections 363, 366, 376 I.P.C. were framed on 23.01.2002. The accused- appellant Sanjay Ram pleaded not guilty before the trial court and claimed to be tried.

6. In order to prove its case, the prosecution examined the informant Mata Deen as PW-1, victim X as PW-2 and the witness Phool Chand as PW-4 as witnesses of the fact. The informant Mata Deen proved the written Tahrir (Ext.Ka.1). The witness PW-4 Phool Chand later on turned hostile. The prosecution examined formal witnesses PW-3 Dr. Ramesh Chandra Agrawal, Radiologist to the prove X-ray plate ( Material-Exhibit-1), X-ray report of the victim (Ext.Ka.2). The prosecution also examined HCP Parideen Rawat as PW-5 to prove the chik report (Ext.Ka.3), GD registering the case (Ext.Ka.4). The prosecution also examined Dr. Sadhana Pathak as PW-6 to prove the medical report (Ext.Ka.5) and supplementary report of victim X (Ext.Ka.6). The prosecution also examined the Investigating Officer Sub-Inspector S.M. Zaidi to prove the steps taken in investigation, site plan (Ext.Ka.7) and the charge-sheet (Ext.Ka.8) and closed the evidence.

7. Learned trial court recorded the statement of accused under Section 313 Cr.P.C. wherein he denied the prosecution case and stated that the victim X had gone with him out of her own free will and also solemnized court marriage with him. He further admitted that victim X had gone to all the places with him out of her free will. He further stated that he made sexual intercourse with the victim X with her consent. He further stated that the prosecution witnesses were falsely deposing against him was falsely implicated in this case. Further, he denied the allegations of the prosecution and he did not produce any evidence in defence.

8. Learned trial court after hearing the arguments of learned counsel for the parties held that the victim was minor and the accused-appellant had enticed her away with him and committed sexual intercourse without her consent. It is further held that the charges under Sections 363, 366, 376 I.P.C. is proved beyond reasonable doubt against the accused-appellant and the accused-appellant was held guilty for the aforesaid offences and sentenced as stated above.

9. Feeling aggrieved by the impugned judgment of conviction and order of sentence, the instant criminal appeal has been filed.

10. It has been submitted by learned counsel for the appellant that the appellant has been falsely implicated in this case. The prosecution witness PW-4 Phool Chand has turned hostile during trial and has not supported the prosecution case. It is further submitted that on the basis of the supplementary report PW-6 Dr. Sadhana Pathak, who proved the medico-legal report of the victim (Ext.Ka.5) and supplementary report (Ext.Ka.6) prepared after the receipt of pathological report and x-ray report, has opined that the age of the victim X was about 17 years and her vagina admits two finger easily. No mark of injury was found either on the body or on the private part of the victim X. It is further submitted that there is a variation of two years either side regarding medical age determined by the doctor, meaning thereby, the victim was major at the time of occurrence. From the evidence on record, it is proved that the victim X (PW-2) was a consenting party who had gone with the appellant out of her own free will and volition and traveled to different places with him. The sexual intercourse was also made by the appellant with her consent. In above circumstances, no offence under Sections 363, 366, 376 I.P.C. is made out against the appellant. It is further submitted that learned trial court has wrongly and perversely appreciated the evidence on record and recorded the finding that appellant Sanjay Ram is guilty for offence punishable under Sections 363, 366, 376 I.P.C. and sentenced him as mentioned in the body of the judgment. It is further submitted that the sentence was too severe. It is further submitted that the first information report has been lodged after due consultations and deliberations after four days of the occurrence for which no explanation has been given by the prosecution. Therefore, the impugned judgment of conviction and order of sentence is liable to be set-aside and the appellant may be acquitted from the charges of offence under Sections 363, 366, 376 I.P.C.

11. Learned A.G.A. has supported the impugned judgment of the trial court and has submitted that the accused-appellant in his statement under Section 313 Cr.P.C. has admitted that the case against him was registered under Sections 363, 366 I.P.C. and the investigation of the case was undertaken by SI S.M. Zaidi (PW-7). It is further submitted that the accused-appellant has admitted that PW-1 Mata Deen is the father of the victim X who has proved that he has lodged the first information report on the basis of written Tahrir (Ext.Ka.1) and has corroborated the FIR in his statement regarding which the accused-appellant has stated that he (informant) is giving false evidence against him as the victim had gone with him out of her own free will. It is further submitted that regarding the deposition of the victim X (PW-2) the appellant has stated that she is giving false evidence against him, in fact, she had gone with him voluntarily. He has further stated that he had made sexual intercourse with the victim with her consent. It is further submitted that in the cases of sexual offence delay in lodging the first information report is bound to occur because it undermine the reputation of the family. It is further submitted that the appellant has admitted that the statement regarding going of the victim with him is correct. The accused-appellant has admitted that the victim had gone with him and travelled to different places out of her free-will and out of her own volition sexual intercourse was made. It is further submitted that in the first information report age of the victim was shown to be 15 years and the father of the victim has also proved that at the time of incident the age of the victim was 15 years which was not challenged in cross-examination. The victim X (PW-2) has also corroborated the incident and has given vivid description of the incident and stated that at the time of incident she was 15 years old and the accused-appellant had enticed her away and committed sexual intercourse with her without her consent by threatening her to kill. It is further submitted that the victim was got married about one and a half years before the incident, therefore, the statement of the appellant under Section 313 Cr.P.C. that the victim had solemnized court marriage with him is not plausible. Moreover, the accused has not filed any documentary evidence in this regard. In above circumstances, learned trial court has rightly held that the delay in lodging the first information report is explained by the prosecution keeping in view the nature of offence in this case itself. It is further submitted that the statements of PW-1 Mata Deen and PW-2 victim X that she was about 15 years of age at the time of incident was not challenged by the defence, therefore, it will be presumed that it is admitted to the appellant that the victim was below the 16 years of age. It is further submitted that in the medical report PW-6 Dr. Sadhana Pathak has proved that according to ossification test and general appearance of victim, the victim was about 17 years of age at the time of medical examination. PW-6 in her deposition has stated that there may be variation of two years in the age determined as per the medical examination. In above circumstances, in event of un-challenged testimony of PW-1 Mata Deen (informant) and PW-2 victim X, it is proved that the victim was about 15-151/2 years of age at the time of occurrence and under such situation the variation of two years in age of the victim will be taken in lower side. Moreover, the victim has stated that the accused-appellant has made sexual intercourse under threat after abducting her. In above circumstances, learned trial court has rightly held that the age of the victim was 17 years and also that the offence under Sections 363, 366, 376 I.P.C. is proved beyond reasonable doubt against the appellant. Learned trial court has rightly held the accused-appellant guilty and sentenced him according to law. Therefore, the present appeal is liable to be dismissed.

12. Having considered the rival contentions raised by learned counsel for the appellant as well as learned AGA for the State and gone through the record including the impugned judgment and order of the trial court, I find it pertinent to mention the law governing for hearing of the criminal appeal. The Apex Court in Bakshish Ram and Another versus State of Punjab, reported in AIR 2013 SC 1484: 2013 AIR SCW 14 in paragraphs 10 and 11 has observed as follows:

"10. The High Court, as a First Court of appeals, on facts must apply its independent mind and record its own finding on the basis of its own assessment of evidence. Mere reproduction of the assessment of the trial Court may not be sufficient and in absence of independent assessment by High Court, its ultimate decision cannot be sustained. The same view has been reiterated by this court in Shankar Singh and others versus State of Haryana [(2004) 11 SCC 291: (AIR 2004 SC 2570:2004 AIR SCW 2388)].

11. In Arun Kumar Sharma versus State of Bihar [(2010) 1 SCC 108: (AIR SC (Supp) 2882:2009 AIR SCW )], while reiterating the above view, this court held that in its appellate jurisdiction all the facts were open to High Court and, therefore, the High Court was expected to go deep into the evidence and, more particularly, the record as also the proved documents, contrary to above principle, we are satisfied that in the case on hand, the High Court failed to delve deep into the regard of the case and the evidence of witnesses. The role of the Appellant Court in the criminal appeal is extremely important and all questions of fact are open before the appellate Court. The said recourse has not been adopted by the High Court while confirming the judgment of the trial court."

13. The Apex Court in Majjal versus State of Haryana, reported in (2013) 6 SCC 798 (Three Judges Bench) has observed regarding duty of appellate court while dealing with the appeal under Section 386 Cr.P.C. and has observed in paragraphs 6 & 7 as follows:

"6. In this case what strikes us is the cryptic nature of the High Court's observation on the merit of the case. The High Court is set out the facts in detail. It has mentioned in the name and number of prosecution witnesses. Particular of all documents produced in the court along with their exhibit numbers have been mentioned. Gist of the trial court's observation and findings are set out in a long paragraph. Then there is a reference to the arguments advanced by the counsel. Thereafter, without any proper analysis of the evidence almost in a summary way the High Court has dismissed the appeal. The High Court's cryptic reasoning is contained in two short paragraphs. We find such disposal of criminal appeal by High Court particularly in a case involving charge under Section 302 IPC where the accused is sentenced to life imprisonment unsatisfactorily.

7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserves to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reason why it is accepting the evidence on record. High Court's concurrence with the trial courts view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write and unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter. Since this exercise is not conducted by the High Court, the appeal deserves to be remanded for a fresh hearing after setting aside the impugned order."

14. The principle emerges for deciding the criminal appeal from the ratio of above mentioned rulings of the Apex Court is that it is the duty of first appellate Court to make proper analysis of evidence and to consider whether trial court's assessment of evidence and its opinion regarding conviction deserve to be confirmed because the personal liberty of an accused is curtailed because of conviction. First appellate Court's concurrence with the trial court's view would be acceptable only if it is supported by reason. Judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter.

15. In this case the occurrence is alleged to have taken place on 22.11.2000 at 06:30 a.m. regarding which FIR was lodged by the informant PW-1 Mata Deen on 26.11.2000 at 15:40 hours. The chik report (Ext.Ka.3) and the GD registering the case (Ext.Ka.4) are proved by the Constable Parideen Rawat (PW-5). PW-1 Mata Deen in his statement has stated that the occurrence has taken place on 22.11.2000 at 06:30 a.m. while his wife along with his daughter (victim X) was returning to home after attending the call of nature from his plot. His plot is situated towards South of his house. He has further deposed that the age of the victim was 15 years at the time of incident and while his wife and daughter were coming back to his house after meeting out the call of nature, the accused Santosh, Sanjay and Tapan started talking with his daughter on the way and at that time his wife was a far ahead from the victim. His wife reached to the house, but his daughter did not return to home. He has further deposed that the accused Tapan and Sanjay used to work in the flour Mill situated in front of his house and he is known to them. When his daughter did not return to home, he searched her but did not find. After 4-5 days of the incident Phool Chand and Mohan Lal Gupta, who are his villagers, told him that they had seen the victim X along with accused Sanjay, Santosh and Tapan going towards the Railway Station Hardoi, thereafter, he got the Tahrir scribed by Shiva Kant Awasthi and got the first information report lodged at police station Kotwali City. He has identified his signature on the Tahrir (Ext.Ka.1). In cross-examination, PW-1 Mata Deen has stated that he was present at the time when his wife and daughter left the house for call of nature. He has further deposed that there is no latrine in his house. He has deposed that his daughter used to talk only with accused Santosh and not with accused Tapan and Sanjay before the incident. He has further deposed that when his wife returned to home he had asked from her about the victim who told that she was talking with Santosh and coming behind her. He has further stated that he has correctly mentioned in the Tahrir that victim was talking with all the three accused persons. He has further stated that the name of accused was told to him by Mohan Lal and Phool Chand after 4-5 days of the incident. He has further stated that he had not seen the victim being taken away by the accused-appellant Sanjay and other accused. He has further stated that he lodged the first information report on the basis of information furnished by PW-4 Phool Chand and Mohan Lal. The PW-2 victim X in her statement has stated that she is aged about sixteen and a half years at the time of recording of his statement. She has also stated that the accused-appellant Sanjay Ram is known to her who used to work in the flour Mill situated in front of her house. She has further deposed that the occurrence has taken place about one year and nine months before at 06:30 a.m while she along with her mother was coming back to her house after attending the call of nature and at that time her mother was 15-20 paces ahead from her when the accused-appellant enticed her away along with him forcibly after extending threat. The appellant took her towards the village Bilgram and kept her in a village where the villagers asked about her then the appellant told that she is his wife. She has further deposed that the appellant used to commit bad thing (sexual intercourse) with her forcibly in the night. She has further deposed that the appellant kept on committing sexual intercourse with her as long as she was kept there. She has further deposed that after about fourteen days of the incident the accused-appellant took her at Hardoi Railway Station and wanted to take her to his house at Pilibhit and on the same day Daroga Ji recovered her along with accused-appellant Sanjay at the gate of the railway station and brought them to the police station. On the same day, she was sent for medical examination and after that lady Constable brought her to police station, and thereafter, Daroga Ji and lady Constable took her to the court for statement, but the court directed him to produce her another day. After about 6-7 days of her recovery, her statement was recorded in the court wherein she had told the whole incident to the Magistrate. She has further stated that Daroga Ji had recorded her statement wherein she had disclosed the incident in detail. In cross-examination, the victim X (PW-2) has stated that the incident has taken place on 22.11.2000 at 06:30 a.m. While she was coming back to house after defecating herself, the accused Sanjay met her on the way and enticed her away forcibly and had also threatened her to kill her if she makes noise. The appellant took her towards Bilgram. She does not know as to in which village the appellant had taken her and kept. She has further deposed that neither she had gone to Pilibit nor she performed court marriage with the appellant at Pilibhit. She has further deposed that in the village where she was kept in a room, the appellant Sanjay used to commit sexual intercourse with her. She was permitted to go out from the room only for natural call and accused Sanjay used to accompany her while going to attend the call of nature. She has further deposed that she was got marriage about one and a half years ago at Kannauj before the incident. She has further deposed that at the time of incident her mother was also along with her and when the appellant Sanjay had put knife on her, her mother was far ahead from her.

16. The witness PW-4 Phool Chand in his statement has stated that the occurrence has taken place about one year and eight months before. He has stated that while he was going towards railway station for labour work he had seen the accused Santosh, Sanjay and Tapan going towards the railway station. Later on, he has stated that he had not seen the victim going towards the railway station along with the accused persons and turned hostile. In cross-examination, he has stated that he had seen the accused persons going towards railway station at about 08:00 a.m. He has further deposed that when he returned to house in the evening after labour work then he came to know that Santosh had managed in enticing away the victim by the accused Sanjay.

17. In this case from the evidence on record, the date of incident is admitted by the accused-appellant in his statement under Section 313 Cr.P.C. except the fact that the victim X had gone with him voluntarily and it is also admitted that the occurrence has taken place in the morning regarding which first information report was lodged by the informant PW-1. From the evidence on record, it is also proved that the informant could not know the whereabouts of the victim X when she was taken away by the appellant. The informant was not an eyewitness of the incident. From the evidence of PW-2 (victim X), it is also proved that her mother was far ahead while the appellant-accused was threatening the victim to go along with him, it means that the mother of the victim had also not witnessed the incident. After about 4-5 days of the incident, the informant came to know from Phool Chand and Mohan Lal that they had seen the victim along with accused persons going towards the Hardoi Railway Station, thereafter, the informant lodged the first information report on 26.11.2000. It is normally seen in the villages that where any girl was kidnapped or abducted for making illicit relation, the families are reluctant to lodge the first information report in order to save the reputation of family. In above circumstances, it is proved that the delay in lodging the first information report is explained by the facts and circumstances of the case itself. The Apex Court in Vidya Dharan vs. State of Kerala, AIR 2004 SC 536 has held that in such type of cases the reputation of the family is involved, therefore, the villagers are reluctant to lodge the first information report and in such cases the delay in lodging the first information report will not create doubt on the prosecution case. The Apex Court in Amar Singh Vs. Balwinder Singh, AIR 2003 SC 1164 has held that there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case under which the delay has occurred. In this case the facts and circumstances is justified itself for the delay, therefore, it cannot be said that the first information report has been lodged belatedly with object to concoct false case against the accused-appellant. The first information report is corroborated by the statement of the victim which could not be shaken in the cross-examination. The accused-appellant has admitted that the victim had gone with him voluntarily and he made sexual intercourse with her consent, and thereafter, they performed court marriage at Pilibhit, but no documentary evidence in this regard has been produced by the accused-appellant. The victim X (PW-2) has stated that she was married one and a half years ago before the incident at Kannauj, meaning thereby, she was a married lady at the time of incident, therefore, in above circumstances and in absence of any documentary evidence regarding court marriage, it cannot be believed that the victim would have voluntarily accompanied the accused-appellant and consented to sexual intercourse. The victim has given vivid description of the manner in which the incident has taken place and how threat was extended to her and why she did not tell the villagers of the village where she was kept that the appellant had abducted her forcibly and committed rape upon her.

18. Dr. Sadhana Pathak (PW-6) has proved the medical report (Ext.Ka.5) and supplementary report (Ext.Ka.6) of the victim and has opined that breasts of the victim was found developed. No mark of external injury was found. At the time of internal examination she has also mentioned in the report and proved that vagina admits two fingers easily and the victim was found to be habitual of sexual intercourse which leads to conclusion that the victim was subjected to sexual intercourse. It was with consent or without consent of the victim is a matter of appreciation of evidence. The medical examination of the victim was conducted after about fourteen days of the incident, therefore, if there were any injury marks on the body of the victim including on the private part, they must have disappeared. The victim has stated that the appellant was possessing knife while threatening her and committed sexual intercourse with her several times without her consent. It is proved beyond reasonable doubt that the accused-appellant has committed sexual intercourse with the victim forcibly without her consent, therefore, I find no force in the arguments of learned counsel for the appellant that the victim was a consenting party.

19. PW-1 Mata Deen has deposed that the age of the victim was 15 years at the time of incident and he has mentioned this fact in Tahrir report (Ext.Ka.1). The victim has disclosed her age to be sixteen and a half years at the time of recording of her statement on 16.08.2000 and the incident is alleged to have taken place on 22.11.2000 which also corresponds that the victim was aged about 15 years at the time of incident. The deposition of PW-1 Mata Deen and PW-2 (victim X) on this point was not challenged by the counsel of the accused in cross-examination, therefore, it will be presumed that the age of the victim as deposed by the victim and her father is admitted to the accused-appellant. Dr. Sadhana Pathak (PW-6) has deposed that vaginal smear was taken and sent for pathological examination for spermatozoa and for confirmation of age. Dr. Ramesh Chandra Agarwal (PW-3) has proved that on 6.12.2000 he got conducted the x-ray of the victim in his presence vide x-ray plate no.2532R (Material-Ex. 1) on the basis of which x-ray report (Ext.Ka.2) was prepared wherein it was found that epiphyses around the elbow joint and knee joint are fused, except upper end of fibula which is almost fused. Epiphyses at lower end of radius and ulna were in process of fusion. Dr. Sadhana Pathak (PW-6) in her statement has stated that on the basis of x-ray report she had prepared the supplementary report of the victim (Ext.Ka.6) wherein she had opined that the victim was aged about 17 years at the time of medical examination. She has admitted in cross-examination that there is variation of two years either side in the age of the victim determined on the basis of medical examination and has stated that the age of the victim might be 19 years also. The appellant has not challenged the statements of the victim and her father regarding age of the victim to be 15 years, therefore, in above circumstances if the variation of two years in age as disclosed in the medical report is also taken, it is proved that the victim was not more than 17 years of age. Therefore, learned trial court has rightly held that the victim was about 17 years of age and accused-appellant had forcibly taken away the victim from the custody of her parents by using force for making illicit relation and committed rape upon her without her consent. Therefore, learned trial court has rightly held that the charges of offence punishable under Sections 363, 366, 376 I.P.C. are proved beyond reasonable doubt.

20. In the wake of aforesaid, the prosecution has proved its case beyond reasonable doubt against the accused-appellant for offence punishable under Sections 363, 366, 376 I.P.C. The learned trial court has rightly convicted and sentenced the appellant for the offences as mentioned above, according to law, which requires no interference.

21. Considering the overall facts and circumstances of the case, I am of the opinion that there is no illegality or perversity in the impugned judgment and order dated 05.08.2005 passed by Additional District & Sessions Judge, Court No.4, Hardoi in Sessions Trial No. 637 of 2001 (State vs. Sanjay Ram), arising out of Case Crime No. 604 of 2000, under Sections 363, 366, 376 I.P.C., Police Station- Kotwali Sahar, District- Hardoi, whereby the accused-appellant was convicted and sentenced to undergo RI of 03 years and fine of Rs.1,000/-, in default six months additional rigorous imprisonment under Section 363 I.P.C., to undergo RI of 07 years and fine of Rs.2,000/-, in default six months additional rigorous imprisonment under Section 366 I.P.C. and to undergo RI of 10 years and fine of Rs.3,000/-, in default one year additional rigorous imprisonment under Section 376 I.P.C. Consequently, the impugned judgment of conviction and order of sentence dated 05.08.2005 passed by Additional District & Sessions Judge, Court No.4, Hardoi is, hereby, upheld.

22. The instant criminal appeal is, accordingly, dismissed.

23. From the report of Senior Superintendent, Central Jail, Bareilly dated 13.04.2014, it is proved that the appellant has served out the complete sentence as awarded by the trial court and has been released from jail on 01.11.2010. It is further reported that the appellant has deposited the fine amount of Rs.6,000/- (receipt no.055857) as awarded by the trial court in the court of IVth Additional District & Sessions Judge, Hardoi on 27.10.2010. Therefore, there is no need to take the appellant in custody.

24. Let certified copy of this judgment along with lower court record be transmitted to the trial court concerned immediately for information and necessary compliance.

Order Date :- 13.1.2023/Vikas

[Mohd. Aslam, J.]