Court No. - 43 Case :- CRIMINAL APPEAL No. - 7930 of 2009 Petitioner :- Mahesh Alias Guddu Respondent :- State Of U.P. Petitioner Counsel :- Pankaj Kumar Shukla Respondent Counsel :- Govt. Advocate,Tripathi B.G.Bhai Hon'ble Ravindra Singh,J.
Heard Sri Tripathi B.G. Bhai, learned counsel for the complainant, learned
counsel for the appellant, learned A.G.A.
It is contended by learned counsel for the appellant that in the present case the
appellant has been convicted for the offence punishable under Sections 376,
366, 363 IPC. It is alleged that the prosecutrix was raped by the appellant and
one other co-accused. She remained in their custody for about one and half
month. According to her statement she was raped by the appellant and other
co-accused many of the times. According to the medical examination she was
aged about 18 years and no injury was seen in her person, the hymen was
intact its shows that the prosecutrix was not raped at all. The doctor could not
give any definite opinion about rape.
In reply of above submission by learned A.G.A. that the prosecutrix was
kidnapped by the appellant and other co-accused persons and she raped by
them. The presence of the injuries did not necessary on the person of the
prosecutrix because she was medically examined after expiry of considerable
period. So far as hymen intact is concerned it is not necessary that for
commission of the rape hymen tears. The sentence of the 10 years has been
awarded to the appellant. The prosecutrix was minor girl according to school
certificate for date of birth was on 25.5.1989 and according to this
examination of C.M.O. dated 1.1.2003 she was aged about 16 years. The
appellant is not entitled for bail.
Considering the entire facts of the case submitted by learned A.G.A. and
considering the statement of doctor she stated that the hymen of the
prosecutrix was found intact. It was admitting the little finger tip. The
appellant was on bail during the trial, he has not misused the liberty of bail.
Let the appellants Mahesh @ Guddu convicted in S.T. No. 685 of 2003
arising out of case crime no. 624 of 2002, under Sections 363, 366, 368 & 376
IPC, P.S. Raya, District-Mathura be released on bail on his furnishing a
personal bond and two sureties each in the like amount to the satisfaction of
the Court concerned.
The prayer for staying the realization is refused, the appellant is directed to
deposit the amount of the fine imposed by the trial Court within a month from
today from the date of his release from the jail. In default of the payment, the
appellant shall be taken into custody.
With the conditions that:-
1. That the applicant shall not tamper with the evidence.
2. That he shall report to the police station/C.J.M. concerned in the first week
of each month to show his good conduct and behaviour till conclusion of the
trial.
Order Date :- 21.7.2010
Ashish Tripathi