JUDGEMENT
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(1.)UNDER challenge in the instant appeal is the judgment and order dated 27.11.2010, passed by the Addl. Sessions Judge, Court No.7, Faizabad, in S.T.No.151 of 2009 arising out of case Crime No. 446 of 2008, Police Station Kumar Ganj, District Faizabad, whereby the present appellant Satish Gupta was convicted for the offences under sections 366 and 376 I.P.C. and was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs.5000/ - for both the sections. In default of payment of above mentioned amount of fine, he had to undergo six months' additional imprisonment. However, the appellant was acquitted of the charge under Section 363 IPC.
(2.)THE brief facts necessary for the disposal of the instant appeal may be summed up as under: -
(3.)ON 30.11.2008, the complainant Ramakant Tiwari lodged an FIR at Police Station Kumar Ganj, District Faizabad, with the allegation that in the night of 26.11.2008, his daughter aged about 15 years (hereinafter referred to as the 'Victim') was missing since 02.00 AM in the night. The complainant continued his search on 27.11.2008 and 28.11.2008 at several places of his relatives. During the search of the daughter, one Kamlesh @ Mintu, wife of Harish Chandra, daughter of his Pattidar told him that on 26.11.2008, she had seen Rajesh Kumar @ Rajjan and Prem Shankar talking with the victim on mobile and these persons used to talk with her frequently and with the help of these persons, Satish Gupta, Santosh Shukla and Vineet Kumar Gupta have taken away the victim. The complainant apprehended that his daughter might be sold or she might be killed.
On the basis of this FIR, case was registered. During investigation, on 22.12.2008 the victim was recovered by the police from Jagdishpur -Faizabad Road at about 8.00 AM. Thereafter the victim was referred for her medical examination and she was medically examined on 22.12.2008 at 4.20 PM at District Hospital Faizabad by Dr. Vineeta Rai. As per the medical examination, pubic and axillary hairs were present, no injury was seen on any part of the body, hymen was torn, there was no mark of injury, no tear and no bleeding was found, vagina admitted two fingers easily, vaginal smear slides were prepared and the victim was referred for X -ray examination for determination of her age. After the aforesaid, tests, no definite opinion regarding rape could be given by the Doctor and the age of the victim was reported to be about 22 years. During the course of investigation, the statement of the victim under Section 164 Cr.P.C. was recorded by the Judicial Magistrate -III, Faizabad, on 23.12.2008 and after concluding the investigation, charge sheet was filed.
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