Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Hon'ble Arvind K. Tripathi, J.)

1. Mr. M. P. Yadav, learned Advocate appeared for the appellant, learned AGA Mr. A.N. Mulla appeared on behalf of the State.

2. The appeal was heard and judgement was reserved on 2.4.2015.

3. The present criminal appeal has been preferred assailing the judgement and order of conviction and sentence dated 31.3.2005 passed by Special Judge (S.C./S.T. Act), Varanasi in S.T. No.456 of 2004 arising out of Case Crime No.11 of 2004, under section 376 IPC, Police Station Jaitpura, District Varanasi.

4. By the impugned judgment of conviction and sentence the accused appellant was convicted and sentenced under section 376 IPC for 10 years rigorous imprisonment with fine of Rs.10,000/- in default of payment of fine further undergo simple imprisonment for one year, for an offence under section 3(i)XII of SC/ST (P.A.) Act to undergo a sentence of 3 years rigorous imprisonment with fine of Rs.3,000/- and in default of payment of fine further undergo simple imprisonment for three months and in respect of offence under section 3(2)V SC/ST (P.A.) Act to undergo life imprisonment with a fine of Rs.10,000/- and in default of payment of fine, to undergo further simple imprisonment for one year. All the sentence would run concurrently and the period already undergone in jail during trial should be adjusted as period undergone punishment by the accused appellant.

5. The prosecution case in brief is that informant Om Prakash Gaud son of Kedar Gaud, R/o Mohalla Shailputri Crossing (Chauraha), Jalalipura, Police Station Jaitpura, District Varanasi lodged first information report on 5.1.2004 at 2.30 A.M. with the allegation that on 4.1.2004 in evening at 7.30 P.M. when his daughter Km. Arti aged about 7 years had gone to purchase egg from the shop and when she was returning, in the lane leading to his house, a person met, enticed away and took her in a compound and committed bad thing with her. When landlord of the compound open the door he found that his daughter was weeping then nearby ladies and persons were called, information was given regarding the occurrence. She was brought to home and there was profuse bleeding from her sexual organ. The FIR was scribed by informant himself and that written report is exhibit -Ka-1 dated 5.1.2004. The distance of the police station was about 2 km. north from the place of occurrence. The case was registered against unknown persons under section 376 IPC at case crime no.11/04.

6. Victim Km. Arti was medically examined at 3.30 A.M. on 5.1.2004, who was brought by constable Shyamraj in womens hospital, Varnasi. The emergency medical officer Dr. Manju Singh examined her and the medical examination report is Ext Ka-3. She was referred at 4.15 A.M. to examine injuries on body of Km. Arti, who was medically examined by Dr. S. K. Verma, Emergency Medical Officer, S.S.P.G. Hospital, Varanasi and injury report is Ext. Ka-5. Vaginal smear was taken and supplementary report was prepared and submitted.

7. The Investigating Officer collected frock, underwear of the victim and taken into custody on 7.1.2004 and memo Ext. Ka-2 was prepared. He also took in his custody pant of accused appellant on 7.1.2004 and prepared memo Ext. Ka-7. The sealed bundle of blood stained frock and underwear of victim Arti, and Chaddi (underwear) and paint of accused appellant were sent in a container to Chemical Examiner, U.P., Lucknow through constable Mohd. Zameel Khan. The medical examination report dated 1.5.2004 was submitted by Joint Director, Forensic Laboratory, U.P., Lucknow as paper no.16-A/2. The statement of prosecutrix was recorded under section 164 Cr.P.C. on 22.1.2004 by the Magistrate, concerned, and the same was placed on the committal record. The Investigating Officer recorded the statement of witnesses and after investigation submitted charge-sheet. Since victim was member of schedule caste and as such charge-sheet was submitted under se