JUDGMENT :

RAM MANOHAR NARAYAN MISHRA, J.

1. Heard Sri Shyam Sundar Mishra, learned counsel for the appellant and Sri Ashish Mani Tripathi, learned A.G.A. assisted by Sri Raj Kumar Mishra, State Law Officer.

2. Instant Crl. Appeal has been preferred by the accused appellant against judgment and order dated 16.1.2010 passed by Additional Sessions Judge, Fatehpur. By the impugned judgment, learned trial court has convicted the accused appellant for charge under Section 376, 342 and 506 IPC in S.T. No. 50 of 2002 (State of U.P. vs. Chunni Lal Sharma and Another) and sentenced him to ten years of rigorous imprisonment for charge under Section 376 IPC and Rs. 5,000/-fine with default stipulation, six months rigorous imprisonment for charge under Section 342 IPC and one year rigorous imprisonment for charge under Section 506 IPC. All the sentences were directed to run concurrently.

3. Co-accused Chunni Lal died during pendency of trial and trial against him abated vide order dated 9.11.2004 by the order of learned trial court.

4. Brief facts of the case relevant for present appeal are that according to prosecution version, informant Keshav Dutt Tiwari R/o Village Fatehpur Tikari, lodged an F.I.R. with P.S. concerned on 2.11.2001 at 6:30 pm, under Section 342, 376, 506 IPC at P.S. Khaga, District Fatehpur, with averment that his minor sister aged about 15 years had gone to ease herself towards agricultural field on 2.11.2001 at around 6:30 hours in the morning. After ease herself when she was returning to home, accused Raje @ Rajesh @ Santosh Kumar Shukla and Chunni Lal Sharma confronted her and took her in the room lying in nearby tubewell in the field and committed bad act with her. On next day i.e. 3.11.2001, his co-villagers Raghunandan and Ashok Kumar heard cries of his sister from the room of tubewell when they had gone to ease themselves and they opened the lock of the door and brought his sister from the room and stated about this incident to him. The accused had locked his sister in the room in the evening and went elsewhere. The investigating officer took the lower garment (salwar) worn by the victim on the date of incident in his possession in presence of local witnesses Rajjan Tiwari and Ram Saran which is marked as Ext. Ka-5. The medico legal examination of the victim was conducted on 4.11.2001 at District women hospital, Fatehpur by doctor Suriya Jabi, which is marked as Ext. Ka-8. Dr. Suriya Jabi stated that no injury was seen on any part of the body of victim on the date of her examination on 4.11.2001. In internal examination, “vagina dilated and admits two finger easily, hymen old torn with healed edges, bleeding from O.S. present (menstrual bleed). No injury is seen on and around private parts. Vaginal smears taken and sent for examination of alive or dead human spermatozoa and referred to District Hospital, Fatehpur, for X-ray wrist, elbow and knee joint for age. In supplementary report Ext. Ka-9 the doctor stated that according to report of radiologist, radiological age of the girl is about 18 years. No opinion about rape can be given. There is no evidence of any living or dead spermatozoa in the vaginal smear slikes. The investigating officer recorded statement of informant and victim under Section 161 Cr.P.C. who stated on 3.11.2001, on the date of lodging of F.I.R, that the victim stated that in the morning of 2.11.2001 she had gone to ease herself towards field lying in the west side of her village and after easing herself when she was returning to her home, accused Raje @ Rajesh @ Santosh Kumar Shukla met her who was hiding in the neighboring Arhar field of Jagdish and threatened her by pointing a country-made pistol towards her that if she cried, he would kill her and dragged her towards field of Jwar and Arhar and took her towards tubewell and locked her in the room of tubewell from inside and dashed her on a cot and thereafter opened sting of her Salwar and committed rape on her by hurling threat of life to he