The main legal point established in the judgment is the significance of the prosecutrix's testimony, the requirement of corroboration, and the careful scrutiny of all relevant circumstances to ascertain consent in cases of rape.

Aditya Nath Mittal, J.

1. Heard learned counsel for the appellant, learned Additional Government Advocate and perused the record.

2. This criminal appeal has been filed against the judgment and order dated 28.02.2009, passed by the then learned Additional Sessions Judge, Court No. 1, Gonda in S.T. No. 215 of 2008, by which the appellant has been convicted for the offence punishable under Section 376 I.P.C. with an imprisonment of ten years and a fine of Rs. 5000/-.

3. The prosecution case in brief is that the complainant had gone to Delhi on 20.02.2008 regarding his business. His daughter aged about 15 years was alone in the house. On 21.02.2008, at about 7.00 p.m., the appellant entered into house of the complainant and committed rape with his daughter. His daughter was also threatened for dire consequences. When he came back, he came to know about the incident. The daughter of the complainant was medically examined on 26.02.2008 and after investigation, the charge-sheet was filed against the appellant for the offence punishable under Section 376 I.P.C. The appellant had denied the charges and claimed trial.

4. The prosecution has examined the complainant as PW-1, who has stated that he had gone to Delhi for purchasing some goods and when he came back on 25.02.2008 then his children told that on 21.02.2008 at 7.00 p.m. the neighbour Atul Kumar Jaiswal has entered into the house. The victim had told that at that time Deepak and Dipika had gone outside to play and Atul Kumar Jaiswal had committed rape with her. The First Information Report has been proved as Ext. Ka-1.

5. The victim has been examined as PW-2, who has stated that on 21.02.2008 at about 7.00 p.m. when she was all alone in her house then the appellant had entered into her house from back side and had committed rape against her will. She has further stated that after committing rape he had run away from back side and at that time his sister Dipika had seen him. While going, the appellant had threatened for dire consequences. Her father had come back on 25.02.2008 and her sister had told about the incident to him. Upon which, her father had asked her and she told the incident to her father. On 25.02.2008, the police had also come to her house and had also recorded her statement. She was medically examined on 26.02.2008. She had not told about the incident to other neighbours because they were not on talking terms.

6. Dr. Ram Gopal PW-3 has stated that on 26.02.2008 he was posted as Medical Officer and he has examined the victim and had prepared the medical examination report. The medical examination reports have been proved as Ext. Ka-2 and Ka-3.

7. Senior Sub-Inspector K.K. Pandey PW-4 has proved the investigation of the case and the formal papers of the prosecution. The site plan has been proved as Ext. Ka-5. The charge-sheet has been proved as Ext. Ka-6. Constable Moharrir Mahe Ram PW-5 has proved the Chik F.I.R. as Ext. Ka-7. and copy of the G.D. as Ext. Ka-8.

8. After prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., in which, he had denied the evidence and has stated that there is dispute between two families regarding the trees on the disputed land. He has been falsely implicated.

9. In the defence, Om Prakash DW-1 has been produced, who has stated that on the government land there is tree regarding which there is dispute between the parties since 2-3 years. Suresh Chandra Jaiswal DW-2 has also stated that there is dispute regarding Eucalyptus trees between the parties.

10. After appreciating the evidence on record, the learned court below came to the conclusion that appellant is guilty for the offence punishable under Section 376 I.P.C. Accordingly, convicted him with an imprisonment of ten years with a fine of Rs. 5000/-.

11. Learned counsel for the appellant has submitted that complainant was not present on the date of incident. The occurrence has taken place on 21.02.2008 while the report has been lodged on 25.02.2008