Hon'ble Mrs. Vijay Lakshmi, J.

The instant Criminal Appeal is directed against the judgment and order dated 9.10.2009 passed by the Additional Sessions Judge/ F.T.C. No. 3, District Basti, in S.T. No. 400 of 1999, State Vs. Bade, whereby convicting the appellant for ten years' R.I. under section 376 I.P.C. with fine of Rs. 5000/- and in default of payment of fine, for a further imprisonment of six months. The appellant has also been convicted under section 3(2)(5) SC/ST Act with ten years' R.I. and fine of Rs. 5000/- and in default of payment of fine for a further imprisonment of six months.

At the very outset, it is worth mentioning that this appeal was admitted on 6.11.2009. However, no order was passed on the bail prayer made by the appellant. Hence he remained in jail and is still in jail. On 13.12.2016 he was produced before this court from jail and on his request, amicus curiae was provided to him and Sri Neeraj Srivastava, Advocate, was appointed to assist this Court as amicus curiae.

Heard Sri Neeraj Srivastava, learned Amicus Curiae, for the appellant and Sri Shanti Prakash Patel, learned AGA for the State. Perused the record.

The brief facts of the prosecution case are as follows:

A first information report was lodged on 14.11.1993 by one Ramjeet Harijan mentioning therein that on 13.11.1993, when he, along with co-villagers Purnwasi and Padohi was working in the 'Arhar' field of one Narayan Tiwari, at about 1.00 P.M. they heard the sound of shrieks coming from the adjacent field. Hearing the shrieks, all of them rushed to the adjacent field where they saw the ten years' old daughter of the first informant, lying all naked on the ground. Blood was oozing out from her vagina and she was shouting and weeping with pain. The appellant Bade and co-accused Santram were standing near her. Seeing the witnesses, both of them ran away from the spot, adjusting their clothes. The witnesses tried to catch hold of them but failed. The girl was immediately taken to the hospital and was given medical treatment. On the next day i.e. 14.11.1993 the report was lodged at the police station.

On the basis of the aforesaid information a case was registered against the appellant as Crime No. 195 of 1993, under section 376 I.P.C. and 3(1)(12) SC/ST Act at Police Station Mahuli, District Basti and the matter was investigated. The police recovered the blood stained earth, blood stained grass and leaves of Arhar and also some blood stained pieces of clothes from the spot. A Five Rupee note was also taken in possession about which the victim girl informed that the appellant Bade had given it to her to buy some sweets. The recovery memos of all the aforesaid articles were prepared, which were duly proved during trial and were marked as Exhibit Ka3 and Ka2, respectively.

The victim girl was medically examined on 15.11.1993 at 3.00 P.M. by a lady doctor at District Women Hospital, Basti, who prepared the injury report, which is quoted below:

O/E Ht. 4 ft 5" Wt. 25 Kg, Teeth 14/14, Breast- not well developed on both side. Axillary and pubic hairs not developed. No mark of injury seen over external part of body.

I/E No mark of fresh injury seen over vulva, vagina and pericardium. It is very much difficult to admit 2 finger in the vagina, hymen is healed tear, spotting is present on the tip of the finger, vaginal smear taken and sent to the pathologist for estimation of spermatozoa.

Pathological Report: No spermotozoa seen in the vaginal smear.

Opinion of Rape:- No definite opinion of rape can be given as hymen is healed tear. No spermatozoa seen in the vaginal smear, spotting on the tip of finger might be menstrual.

Vaginal smear of the girl was sent for chemical examination and as per pathological report no spermatozoa was found in the vaginal smear. For determination of the age of the girl her x-ray was conducted. The x-ray report is available on the record, according to which the age of the girl was found to be about 12 years.

The I.O.