Reserved on -5.3.2020
Delivered on -5.6.2020
Case :- CRIMINAL APPEAL No. -3609 of 2009
Appellant :- Imshad
Respondent :- State of U.P.
Counsel for Appellant :- M.P.S. Chauhan,Anil Kumar
Counsel for Respondent :- Govt. Advocate
Hon'ble Pankaj Naqvi,J.
Hon'ble Saurabh Shyam Shamshery,J.
[Per: Saurabh Shyam Shamshery, J.]
This is an appeal under Section 374(2) Criminal
Procedure Code (Cr.P.C.) preferred by accused/appellant
Imshad, challenging the judgment and order dated
15.4.2009 whereby he stands convicted under Section 376
IPC/Section 3(2)(V) of SC/ST Act and sentenced for life
with fine of Rs.50,000/- and a default sentence of two
years in Sessions Trial No.729/05, by Additional District
and Sessions Judge/Special Judge/SC/ST Act, Fast Track
Court No.4, Aligarh, Uttar Pradesh.
1. PROSECUTION CASE
I. First informant, Shiv Dhara (PW-2), mother of victim
lodged a written report at Police Station -
Saasni Gate, Aligarh on 17.1.2005 at about 9:40 AM,
against an unknown under Section 376 IPC, that she was
a resident of Mohalla Sarai Rajaram, P.S. Saasni Gate,
Aligarh. On 16.1.2005 (a day before), about 4 PM while her daughter (victim), aged about 9 years was playing in
the mohalla, an unknown person allured her to first floor
of a vacant and dilapidated house of one Karmesh Chand
Maheshwari at Pathak Street of Mohalla Jayganj and
committed rape. Victim told her about the mishap in the
night of 16.1.2005.
II. Accordingly, an FIR was lodged and
investigation commenced. Investigation Officer inspected
the place of occurrence on 17.1.2005, collected bed sheet,
blood stained pillow cover, three portion of cotton
mattress and a torn white cloth having blood clots and
also recovered blood stained green undergarment and one
cream coloured pant. Recovery memos were prepared in
presence of witnesses namely Dharmendra Kori and Satya
III. Victim was medically examined on 17.1.2005 at
about 2:45 PM at MIG 4, Government Hospital, Aligarh by
Dr. Suneeta Sagar (PW-4). Details of medical examination
are as follows :-
There is perineal tear present at 6'O clock position, muscle
deep, about 2 c.m. long. Vaginal swab taken for
pathological examination for spermatozoa and for age,
adv. X Ray of right hand for Carpal bones.
IV. Medical Officer, MIG Government Hospital issued
supplementary medical report dated 1.2.2005 of the
victim. Details of which are as follows :-
X-Ray report – Done at M.S. Hospital, Aligarh,
Pathology report - Done at M.S. Hospital. Dead
From above report the age of girl is about 8 yrs
(Eight) and probability of rape is there.
V. On completion of investigation, the I.O. submitted a
charge sheet dated 18.2.2005 against the
accused/appellant under Sections 376 IPC and 3(2)(V)
SC/ST Act, on which cognizance was taken, case
committed to Sessions and charges framed under
above mentioned Sections on 19.4.2005, to which the
accused pleaded not guilty and claimed trial.
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