The absence of injuries or spermatozoa does not negate the victim's credibility; consent cannot be presumed based on age alone.

JUDGMENT :

Per : Hon’ble Sandeep Jain, J.

1. Heard Sri Dharmendr Kumar Singh, learned counsel for the appellant, Shri Virendra Kumar Pal, learned A.G.A for the State and perused the material available on record.

2. This instant criminal appeal has been filed by the convicted appellant- Sanjay Singh against the judgment and order dated 20.12.2002 passed by the Court of Special Judge, (S.C/S.T Act), Kanpur Dehat, in Special Sessions Trial No. 98 of 1998 (State v. Sanjay Singh), Case Crime No. 315 of 1997 under Section 376 I.P.C and 3 (2)(5) S.C/S.T Act, Police Station Mangalpur, District Kanpur Dehat, whereby the appellant has been convicted for offences under Section 376 I.P.C and sentenced to undergo ten years rigorous imprisonment alongwith a fine of Rs. 5,000/- and under Section 3(2)(5) of S.C/S.C Act for live imprisonment alongwith a fine of Rs. 5,000/-. In default, he has been sentenced to undergo further imprisonment of one year under each conviction. All the sentences have been ordered to run concurrently.

3. The factual matrix is that the first informant –‘R’ P.W.-1 had given an application dated 11.12.1997 (Ex.Ka-1) in Police Station Mangalpur, Kanpur Dehat, with the averments, that today at about 12:00 noon her daughter ‘K’ aged about 14 years, had gone to defecate with a mug (Lota) from his house in the field of Ganga Ram @ Ganddhu and after defecating, when she was returning, then one Sanjay Singh forcibly grabbed the hand of victim ‘K’ and dragged her in the Arhar field of Ganga Ram @ Ganddhu, slammed her down, her mouth was gagged, her underwear was pulled off, thereafter wrong act was committed on her. Her daughter was shouting. On hearing her, he and Ram Pal and his brother Raj Kumar, who was working with him in Abadi land and sowing coriander(Dhania), rushed to that place and saw that Sanjay Singh was lying on her daughter with his pant down, doing wrong act. On seeing them, Sanjay Singh fled towards north, who was chased, but could not be apprehended.

4. On the basis of above Tehrir, Ex.Ka-1 by the first informant ‘R’ (examined as P.W-1 in trial), Case Crime No. 315 of 1997, under Section 376 I.P.C and Section 3 (2) (12) of S.C/S.T Act was registered on 11.12.1997 at 14:00 hours against the accused Sanjay Singh at Police Station Mangalpur, District Kanpur Dehat and corresponding G.D Entry No. 25 was made at 14:00 hours on 11.12.1997. The check F.I.R and G.D Entry have been proved as Ex. Ka-11 and Ex. Ka-12 by Sri Om Prakash Sharma, retired Deputy S.P. (examined as P.W 5 in trial).

5. The investigation of the case was handed over to Sri Om Prakash Sharma P.W. 5, who recovered the underwear of the victim ‘K’, on which blood and semen stains were found. The Recovery Memo of the underwear is Ex.Ka-2. The shorts (Nekar) which the accused was wearing at the time of incident was also seized and the Recovery Memo Ex.Ka-10 was prepared.

6. The victim ‘K’ P.W.-2 was examined by Dr. Draupadi Jatariya P.W.-3 on 12.12.1997 at 05:00 p.m. The victim’s medical examination report is Ex. K-5, according to which, no injury marks were found on her body and private parts. Hymen was old torn and the vagina admitted two fingers easily. Swab was taken from vagina to determine the presence of dead or alive spermatozoa and for age determination the x-ray of right elbow, left wrist and right knee joint of the victim was advised.

7. The victim was again examined on 13.01.1998 at 01:15 p.m. jointly by Dr. Shubha Mishra, and another doctor. In this examination, no injury was found on private parts and internal aspect of thighs. Hymen was found torn and replaced by old healed granular tags. Vagina was admitting two fingers easily, uterus was of normal size. The victim was menstruating and blood was coming out from O.S.

The doctors opined that ‘K’ was used to sexual intercourse.

8. Supplementary report Ex.Ka-6 of victim ‘K’ was prepared by Dr. Draupadi Jatariya on 30.12.199