JUDGMENT :

(Samit Gopal, J.)

1. The present Criminal Appeal under Section 374(2) Cr.P.C. has been preferred by the appellant Ramesh against the judgment and order dated 01.02.2006 passed by Additional District and Sessions Judge, Room No.8, Saharanpur in Sessions Trial No.175 of 2005 (State Vs. Ramesh) convicting and sentencing the appellant under Section 376 IPC to 10 years R.I with fine of Rs.3,000/-and in default of payment of fine to 3 months further rigorous imprisonment. The trial court has further directed that half of fine as recovered shall be paid to the victim/P.W.2 as compensation.

2. The name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgments and as per Section 228A of the Indian Penal Code. She is, thus, referred to as ‘X’ in the judgment.

3. An application dated 18.01.2005 written by Ghanshyam Singh, S/o Karm Singh was given by Dheer Singh, S/o Bholaram, R/o Village Ganeshpur, Police Station Viharigarh, District Saharanpur to the S.H.O Police Station Mirzapur, District Saharanpur alleging therein that his sister Shishwati was married in village Vanjarewala from whom one daughter was born. Shishwati was abandoned by her husband after which her court marriage was done with Ramesh, S/o Bhola (accused-appellant) of village Kashampur around 7 years back. The victim ‘X’ was sent with Shishwati considering Ramesh as her father after which victim ‘X’ was brought by the first informant and was kept by him and she started her studies who was studying in class VIII. His sister was of unsound medical condition and used to remain ill. On 14.1.2005 being Friday, Ramesh came to his village and took victim ‘X’ with her by saying that Shishwati is unwell, victim ‘X’ would give her medicine and food and brought her to his village Kashampur. On the same night, Ramesh took victim ‘X’ from near the sister of first informant while being in an intoxicated condition and took her to another room, tied her hands and raped her. On the next day victim ‘X’ told about the incident to Shushila, the niece of the first informant who was married in Kashampur who then on telephone told about it on the next day to the first informant on which on 17.1.2005, he and other persons went to Kashampur and inquired about it from victim ‘X’ who told them that Ramesh tied her hands and raped her. She was in a bad condition. The first informant then got many people of village Kashampur collected and told them about the incident who deprecated it and told him to do whatever he likes. The victim ‘X’ is aged about 13 years. She has been brought to the police station. The first informant report be thus lodged and action be taken. The said application is Exbt. Ka1 to the records.

4. On the basis of the said application, an FIR was lodged as Case Crime No.12 of 2005 under Section 376 IPC at Police Station Mirzapur, District Saharanpur on 18.1.2005 at 9.30 a.m. by Dheer Singh against Ramesh, S/o Bhola. The Chik FIR is Exbt. Ka-2 to the records.

5. The Investigating Officer took into possession a printed Salwar and an underwear of victim ‘X’. Dheer Singh and Smt. Rekha Kiran w/o Dheer Singh are the witnesses of the same. The recovery memo of the same is Exbt. Ka-5 to the records.

6. The victim was medically examined on 18.1.2005 at 9.30 p.m. by Dr. Rashmi Mehta, the Medical Officer, Womens Hospital, Saharanpur. After general examination, the doctor noted as follows:-

“Height-145 cm. Weight-40 kg. teeth-14/14

Sec. sex character (breast, pubic and axillary hair) developed.

No mark of injury seen all over body.”

On internal examination, the doctor noted as follows:-

“No injury seen on private part. Old torn and healed hymen present. Vagina admits two finger easily. P/s slight bleeding per vagina present coming from uterus. No injury seen on vagina. Vaginal smear made and sent to pathology for presence of spermatozoa.”

For determination of age, X-Ray of right elbow, wrist and k