Point of Law: Medical evidence should show some semblance of forcible intercourse, even if we go as per the version of the prosecutrix that the accused had gagged her mouth for ten minutes and had thrashed her on ground, there would have been some injuries to the fully grown lady on the basis of the body.

JUDGMENT :

Ajai Tyagi, J.

1. By way of this appeal, the appellant has challenged the Judgment and order dated 24.11.2008 passed by court of Special Judge, S.C. & S.T Act/Additional Sessions Judge, Kanpur Dehat in Sessions Trial No.269 of 2001, arising out of Case Crime No.216 of 2001, under Sections 363/366/376 I.P.C., read with Section 3(1)(xi) of Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as, 'S.C./S.T. Act, 1989'), Police Station Akbarpur, District Kanpur Dehat whereby the accused-appellant was sentenced under Section 363 Indian Penal Code (I.P.C.) for three years’ rigorous imprisonment and with a fine of Rs.1000/-; under Section 366 I.P.C. with the sentence of five years’ rigorous imprisonment and fine of Rs.1000/- and; under Section 376 I.P.C. with the sentence of rigorous imprisonment for 10 years and a fine of Rs.2000/-and; under Section 3 (2) (v) of S.C. & S.T. Act with a sentence of life imprisonment and fine of Rs.2000/-with a direction that all the sentences will run simultaneously and in event of default of payment of fine, to undergo two months’ further imprisonment.

2. The brief facts as per prosecution case are that on 12.8.2001 at about 8:00 p.m., the prosecutrix was kidnapped by appellant-Jai Karan @ Pappu and two other unknown persons. Father of the prosecutrix given the written information about the kidnapping to the near police station. After two days on 14.8.2001 at about 10.00 a.m., the girl was found by her father in the field of sorghum which is the farm of Shiv Ram Shukla in an unconscious condition. After came to consciousness, she disclosed the whole incident to her family members that accused-appellant with two unknown persons committed gang rape with her by gagged her mouth at gunpoint and went away extending threat that if any report is lodged at the police station or this fact is divulged to anyone, they will kill her whole family. When she along with her father hiding themselves went to the police station for reporting the said incident and after denied lodging the FIR, they sent a complaint report to the Superintendent of Police, Kanpur Dehat then FIR was lodged on 15.8.2011 by the police.

3. Police Station Incharge, Akbarpur, Kashmir Singh Yadav tookup the investigation visited the spot, prepared site plan, recorded statements of the prosecutrix and witnesses and after completing investigation submitted charge sheet against the accused.

4. The accused being charge sheeted for offence triable by court of session. The learned Magistrate committed the case to the court of session. The court of session summoned the accused who pleaded not guilty to the charges framed and wanted to be tried.

5. The prosecution so as to bring home the charges examined eight witnesses, who are as under:-

6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:

7. Heard learned counsel for the appellant, learned AGA for the State and also perused the record.

8. It is submitted by the counsel for the appellant that as far as commission of offence under Section 3(1)(xi) and 3(2)(v) of S.C./S.T. Act, 1989 is concerned, the l