1. Heard learned counsel for the appellant Kamruddin Alias Guddu and learned AGA for the State and perused the record.
2. By this appeal, the appellant Kamruddin Alias Guddu has impugned the judgment and order dated 27.05.1992 rendered by Sri P.K. Agnihotri, the then Assistant Sessions Judge, Hardoi in Sessions Trial No. 613 of 1990, State vs. Kamruddin Alias Guddu, whereby the learned Assistant Sessions Judge has convicted and sentenced the appellant Kamruddin Alias Guddu under section 363 I.P.C. to undergo rigorous imprisonment of seven years and also to pay a fine of Rs. One thousand and has further convicted and sentenced him each under section 366-A and 376 IPC to under go rigorous imprisonment of seven years and to pay a fine of Rs. One thousand. The learned trial court further directed that in default of payment of fine, the appellant shall under go rigorous imprisonment of one and a half year with regard to each of the aforesaid offences.
3. The prosecution story in nut shell is that on 27.5.1990 the complainant Ram Bharose lodged the F.I.R., Exhibit ka-1, at the police station Shahabad district Hardoi with the allegation that one Sharif son of Moudhu and his mother kidnapped his daughter aged about thirteen years about ten days before lodging of the FIR. The complainant Ram Bharose had also expressed suspicion against the wife of one Ishwar Dayal Nai. On the basis of that FIR, the police registered the case and proceeded to make investigation of the case. During the course of investigation, the prosecutrix was recovered and was referred to the Women Hospital, Hardoi on 11.6.1990 for medical examination. PW-3 Dr. Reeta Singh, the lady doctor, found that axillary and pubic hairs were absent and breast were in the process of development and the prosecutrix had no external injury. Hymen was old torn and healed and vagina admitted two fingers easily. The lady doctor took vagina smear for pathological examination and referred her for X-ray to determine her age. After the X-ray, the lady doctor Reeta Singh prepared supplementary report Exhibit ka-4 and opined that the prosecutrix was used to sexual intercourse, therefore, no definite opinion regarding rape could be given. The lady doctor was further of the view that the prosecutrix was aged about twelve years. It may also be mentioned that no sperm was seen on pathological examination of vaginal smear. The investigating officer, after concluding the investigation submitted charge sheet against the appellant.
4. The learned trial court framed the charges under sections 363, 366-A and 376 I.P.C. against the appellant and co-accused Sharif, who denied the charges and pleaded that they had been falsely implicated due to enmity.
5. The prosecution examined as many as five witnesses to prove the aforesaid charges. PW-1, Nanhi is the prosecutrix. She stated that she was aged about thirteen years on the date of occurrence and used to live under the guardianship of her parents. On the date of the occurrence, she was going to purchase medicine. The appellant Kamruddin Alias Guddu met her on way and took her to Pihani on a cycle, which was given by co-accused Sharif. All the three, namely, the appellant, the prosecutrix and Sharif, went up to Pihani on the same cycle. Both the appellant and co-accused Sharif kept her in a house for about five days and committed rape on her at the behest of a country made pistol. Both the accused, thereafter, took her to village Akhanapur and kept her there for about five days, where they again committed rape on her. After that, both the accused took the prosecutrix from Akhanapur to Hardoi and then to Shahabad, where they were arrested by the police. In this way, PW-1 Smt. Nanhi has supported the prosecution story, who has been cross-examined at length but nothing material could be brought on record to discredit her testimony. The learned trial court examined the statement of the prosecutrix in detail and found that her statement was truthful. I do not find any reason to take a different view.
6. PW-2, Ram Bharose is the father of the prosecutrix. He has also supported the prosecution story that the prosecutrix was aged about thirteen years and was recovered after about thirteen days of the occurrence. This witness has proved lodging of the FIR. PW-3, Dr. Reeta Singh had medically examined the prosecutrix and proved the fact that the prosecutrix was aged about twelve years and further stated that there could be a variation of six months either way. PW-4, Rajiv Bajpai has proved the factum of recovery of the prosecutrix and arrest of the co-accused Sharif as alleged by the prosecutrix and has further proved the recovery memo, Exhibit Ka-5. PW-5 Tara Chand Dohre had investigated the case. He has given evidence of formal in nature. The X-ray report, Exhibit ka-4, prepared by Dr. M.A. Khan was not disputed by the learned counsel for the appellant, therefore, the learned trial court read the X-ray report in evidence under section 294 of the Code of Criminal Procedure.
7. The learned trial court examined the appellant under section 313 I.P.C., who denied the allegations made against him and alleged that he has been falsely implicated due to enmity. However, the appellant did not adduce any evidence in defence.
8. The learned counsel for the appellant submitted that the maximum sentence imposed on the appellant is of seven years and he has already served out the sentence, therefore, he did not press the appeal and conceded that the appeal has become infructuous.
9. In view of the fact that it is a case of kidnapping, abduction and rape on a girl aged about twelve-thirteen years and she has supported the prosecution story in the witness box and her statement could not be shaken during the cross examination and her statement finds corroboration from other evidence on record, the finding of guilt recorded by the learned trial court seems to be perfectly correct and requires no interference specially when the learned counsel for the appellant did not press the appeal on merits.
10. So far as the question of sentence is concerned, the appellant is alleged to have already served out the sentence of seven years rigorous imprisonment, which does not appear to be excessive or unreasonable. In this view of the matter, the appeal has no merit and is liable to be dismissed.
11. Accordingly the appeal is dismissed. All the sentences passed against the appellant Kamruddin Alias Guddu under sections 363, 366 and 376 IPC shall run concurrently. The appellant shall be extended the benefit of section 428 of Code of Criminal Procedure while calculating the period of sentence. If the appellant has already served out the sentence, he shall be released from the custody forthwith if he is not already in custody in some other case.
12. Let a copy of this judgment along with the lower court record be transmitted forthwith to the learned trial court for immediate compliance.
Order Date :- 18.10.2011 RKSh