Point of Law; res gestate is an exception to the general rule of hearsay evidence although not in issue directly, yet is so connected with the fact in issue as to form the part of the same transaction. PW-1 eye-witness immediately after the occurrence told to PW-2 in regard to occurrence.

JUDGMENT :

SUBHASH CHAND, J.

1. The instant Criminal Appeal has been preferred on behalf of the appellant-convict Pawan Kumar Mishra against the State of U.P. against the judgment and order dated 18.2.2006 passed by the Additional Sessions Judge, Court No. 3, Fatehpur in Sessions Trial No. 251 of 2005 (State vs. Pawan Kumar Mishra) arising out of Case Crime No. 75 of 2004 under Sections 376 and 506 I.P.C. P.S. Jafarganj, District Fatehpur whereby the appellant had been convicted and sentenced to life imprisonment and a fine of Rs. 10,000/- was also ordered to undergo further imprisonment of two years in default of payment of fine and further convicted and sentenced for the offence under section 506 I.P.C with imprisonment of 3 years and a fine of Rs. 1,000/- was also ordered to undergo further imprisonment of two months in default of payment of fine. All the sentences were to run concurrently.

2. The facts giving rise to this appeal in brief are that the informant Virendra Kumar, son of Jagdev Prasad Agnihotri, resident of village Kamasin, P.S. Jafarganj, District Fatehpur lodged F.I.R. with the concerned police station with these allegations that on 24.10.2004 at 5 p.m., his daughter Luxmi Devi 6 years old was playing under the Plum Tree nearby the house of Uma Shankar, son of Mahabir Pandey and was plucking plums; at the same time Pawan Kumar Mishra S/o Devi Prasad Mishra, 22 years old of the village attracted there and enticed away his daughter in a dilapidated house of Uma Shankar and committed rape to her whereby the blood was also oozing and his weeping daughter came to the house and told in regard to woe-tale to her mother. On this information he also reached to the place of occurrence and found blood there. There may, persons of the village also witnessed the place of occurrence along with him. His daughter was also criminally intimidated by Pawan Kumar Mishra if she disclosed in regard to occurrence. He and persons of the village made search of Pawan Kumar Mishra but he fled away. On this report the Case Crime No. 75 of 2004 was registered against Pawan Kumar Mishra under Section 376 and 506 I.P.C. with the police station concerned.

3. The Investigating Officer after concluding the investigation filed the charge sheet against the accused Pawan Kumar Misrha under Sections 376 and 506 IPC before the court of Chief Judicial Magistrate, Fatehpur who after taking cognizance of the same committed the case to the Court of Sessions for trial which was in turn transferred to the court of Additional Sessions Judge, Court No. 3, Fatehpur.

4. The trial court framed the charge against the accused under sections 376 and 506 I.P.C. and the charge was read over and explained to the accused which was denied by him and claimed for trial.

5. On behalf of prosecution to prove the charge against the accused in documentary evidence filed the written information Exhibit Ka-1 Radiological examination report in regard to age of victim, Exhibit Ka-2, Medical Examination report of victim, Exhibit Ka-3 and Ka-4, Chik F.I.R. Exhibit Ka-5, G.D. Entry, Exhibit Ka-6, Site plan of the place of occurrence Exhibit Ka-7 charge sheet Exhibit Ka-8, Recovery Memo in regard to blood stained clay and plain clay, Exhibit Ka-9, Recovery Memo in regard to taking in possession blood stained panty of the victim, Exhibit Ka-10 and in oral evidence examined PW-1 Virendra Kumar Agnihotri-informant, PW-2 Luxmi Devi, PW-3 Sarojani Devi, PW-4 Dr. M.C. Tiwari, PW-5 Doctor B.K. Sharma, PW-6 Doctor Sudha Kashmiri, PW-7 Head Constable Ishwar Chand and PW-8, Sub-Inspector Sheshmani.

6. The statement of accused under section 313 Cr.P.C. was recorded in which he denied the incriminating circumstances in the evidence against him. No defence evidence was filed on behalf of the accused.

7. The learned trial court after hearing the contentions of the rival parties convicted the accused for the offence under section 376 and 506 IPC and sentenced as said above vide judgment dated 18.2.2006