Point of law: Just because the accused was knowing the prosecutrix belonging to the vulnerable caste cannot itself take the matter in that ambit and it is relevant to mention that when offence of rape is not proved then there is no question of punishment under Section 3(2)(V) of SC/ST Act.

JUDGMENT :

Ajai Tyagi, J.

1. By way of this appeal, the appellant-Teetu has challenged the Judgment and order 21.08.2010 passed by court of Additional Sessions Judge/FTC 3, Firozabad in Session Trial No.84 of 2010 arising out of Case Crime No.482 of 2009 under Section 376 Indian Penal Code, Police Station-Rasoolpur, District-Firozabad whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for life with fine of Rs.5,000/-and in case of default of payment of fine, to undergo further imprisonment for one year.

2. The brief facts as per prosecution case are that on 2.10.2009, a written report was submitted by complainant-Raju Rathore at Police Station-Rasoolpur, District-Firozabad, stating therein that in the midnight of 1/2.10.2009, his 7 years old daughter (victim) and 10 years old son Babloo were sleeping on the roof and the accused-appellant Teetu was also sleeping on the same roof while the complainant was sleeping inside the house with his wife Geeta and two other children. In the morning, when his daughter did not come down from the roof, he and his wife Geeta went on the roof and saw his daughter in almost half fainted condition. When the victim was inquired, she told that Teetu raped her in the night due to which she fainted. The complainant and his wife saw that her undergarment was blood-stained and blood was also oozing from her private-parts.

3. S.I. Felan Singh 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. The matter being triable by court of sessions was committed to the sessions court.

4. The learned trial court framed charge under Section 376 IPC, which was read over to the accused. The accused denied the charge and claimed to be tried. The prosecution so as to bring home the charge, examined five witnesses, who are as under:-

1 Raju Rathaur P.W.1

2. Victim P.W.2

3. Geeta P.W.3

4. Dr. Praveen Jahan P.W.4

5. S.I. Felan Singh P.W.5

5. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. The accused did not examine any witness in defence.

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

1. F.I.R. Ext. Ka-7

2. Written report Ext. Ka-1

3. Recovery Memo of 'kachha' Ext. Ka-2

4. Medical Report of Victim Ext. Ka-3

5. Supplementary report Ext. Ka-4

6. Site Plan with Index Ext. Ka-5

7. Heard Shri Yogesh Srivastava, learned Advocate, assisted by Mr.Noor Mohammad, learned counsel for the appellant, Sri Rupak Chaubey, learned AGA for the State and also perused the record.

8. Perusal of record shows that occurrence took place in the night of 1/2.10.2009 and the victim was medically examined on 2.10.2009 at 12:00 (noon) in District Women Hospital, Firozabad. In the medical examination, no marks of external injuries were found on the body of the victim including private-parts. Hymen was found torn at 6 o'clock position and no fresh bleeding was present. Vaginal smear examination and x-ray of right palm including wrist joint was advised. No opinion regarding rape could be given by the doctor. Perusal of supplementary report shows that spermatozoa was not detected. The age of victim girl was found about 7 years. In supplementary report also, it is stated by the doctor that no definite opinion regarding rape can be given.

9. The victim was examined by prosecution as PW2. In her statement, the victim stated that accused had committed bad-act with her on the roof of the house; it was night at the time of occurrence. She was wearing underwear, which was spotted by blood. She has also stated that blood was discharged from her vagina. She cried, but her mouth was pressed by the accused. The victim was cross-examined by defence in which she has stated that she regularly used to sleep and play on the same roof on whi