JUDGMENT :

Anil Kumar Ojha, J.

Heard Sri Shyamu Shukla, learned counsel for the appellant, Sri Rupak Chaubey, learned A.G.A. for the State and perused the records.

2. Challenge in this criminal appeal is the judgment and order dated 19.6.2015 passed by Additional Sessions Judge, Court No. 5, Ghazipur in Special Criminal Case No. 32 of 2014 (State v. Sarvjeet @ Shashi Kapoor) arising out of Case Crime No. 213 of 2014 under Sections 376, 323 I.P.C. and 3/4 P.O.C.S.O. Act, P.S.-Bhawarkol, District-Ghazipur, whereby the learned Additional Sessions Judge, Court No. 5, Ghazipur has convicted appellant Sarvjeet @ Shashi Kapoor under Section 376 I.P.C read with Section 4 P.O.C.S.O. Act and sentenced him 10 years imprisonment and Rs. 10,000/- fine; under Section 323 I.P.C., one year imprisonment. In case of default in payment of fine, six months additional imprisonment has been awarded.

Above sentences have been ordered to run concurrently.

3. Tersely put the prosecution case is that complainant Shailendra Ram lodged an F.I.R. on 3.5.2014 at 11:15 hours at P.S.- Bhawarkol, District-Ghazipur stating therein that on 2.5.2014 at about 7:00 hours in the evening when complainant had gone out for labour work and his wife had gone to answer the nature's call, appellant Sarvjeet@Shashi Kapoor was committing rape with the complainant's daughter aged about 7/8 years by putting cloth in her mouth. At that time, the mother of victim entered the house and saw that he was committing rape with her daughter. Then victim started crying. Hearing the noise, witnesses Mahendra Ram S/o. Ram Tahal and Shyam Lal Ram S/o. Devanram reached at the spot. Appellant Sarvjeet @ Shashi Kapoor S/o. Bhikhari Ram escaped from the spot by pushing the wife of complainant. Complainant's wife fell down and sustained injury on her head.

Complainant Shailendra Ram submitted a written report in the police station Bhawarkol, District-Ghazipur.

4. A case was registered against the appellant Sarvjeet @ Shashi Kapoor in Case Crime No. 213 of 2014 under Sections 376, 323 I.P.C. and 3/4 P.O.C.S.O. Act, P.S.- Bhawarkol, District-Ghazipur.

5. The Investigation Officer took the one peace of lower (Paijama) of the victim, which the victim had worn at the time of incident and prepared recovery memo Ext. Ka-2. The Investigating Officer took one underwear, one pant and one shirt of the appellant and prepared recovery memo Ext. Ka-9. Statement of the victim under Section 164 Cr.P.C. was recorded by Judicial Magistrate, Ghazipur on 8.5.2014. Injured Premsheela was got medically examined and injury report Ext. Ka-7 was prepared. Medical examination of the injured was done. Victim was also medically examined and injury report Ext. Ka-4 was prepared.

Investigating Officer recorded the statement of victim and other witnesses under Section 161 Cr.P.C. and after completion of investigation, submitted charge-sheet against appellant Sarvjeet @ Shashi Kapoor in Case Crime No. 213 of 2014 under Section 376, 323 I.P.C. and 3/4 P.O.C.S.O. Act.

Learned lower Court took cognizance in the matter on 11.6.2014. The Additional Sessions Judge, Court No. 5, Ghazipur charged the appellant under Section 376, 323 I.P.C. and 3/4 P.O.C.S.O. Act.

Appellant denied the charges and claimed trial.

6. Prosecution was directed to adduce evidence in support of the prosecution case. Statements of P.W.-1 Shailendra Ram, P.W.-2 Premsheela victim's mother, P.W.-3 victim, P.W.-4 Dr. Vinita, P.W.-5 Dr. Umesh Kumar, P.W.-6 Sub-Inspector Ram Singh, P.W.-7 Head Constable Anirudh Rai, P.W.-8 Constable Nawasi Abeeda Khatoon, P.W.-9 Mansa Yadav X-ray technician,were recorded.

Prosecution concluded the evidence.

Thereafter, statement of appellant Sarvjeet @ Shashi Kapoor under Section 313 Cr.P.C. was recorded. Appellant denied the evidence and said that he has been falsely implicated owing to the enmity. He further submitted that police has submitted forged report.

After hearing the prosecution and defence, learned Additional Sessions Judge, Court No