A.F.R. Reserved on -5.3.2020 Delivered on -5.6.2020 Case :- CRIMINAL APPEAL No. -3609 of 2009 Appellant :- Imshad Respondent :- State of U.P. Counsel for Appellant :- M.P.S. Chauhan,Anil Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Pankaj Naqvi,J. Hon'ble Saurabh Shyam Shamshery,J. [Per: Saurabh Shyam Shamshery, J.] This is an appeal under Section 374(2) Criminal Procedure Code (Cr.P.C.) preferred by accused/appellant Imshad, challenging the judgment and order dated 15.4.2009 whereby he stands convicted under Section 376 IPC/Section 3(2)(V) of SC/ST Act and sentenced for life with fine of Rs.50,000/- and a default sentence of two years in Sessions Trial No.729/05, by Additional District and Sessions Judge/Special Judge/SC/ST Act, Fast Track Court No.4, Aligarh, Uttar Pradesh. 1. PROSECUTION CASE I. First informant, Shiv Dhara (PW-2), mother of victim lodged a written report at Police Station - Saasni Gate, Aligarh on 17.1.2005 at about 9:40 AM, against an unknown under Section 376 IPC, that she was a resident of Mohalla Sarai Rajaram, P.S. Saasni Gate, Aligarh. On 16.1.2005 (a day before), about 4 PM while her daughter (victim), aged about 9 years was playing in the mohalla, an unknown person allured her to first floor of a vacant and dilapidated house of one Karmesh Chand Maheshwari at Pathak Street of Mohalla Jayganj and committed rape. Victim told her about the mishap in the night of 16.1.2005. II. Accordingly, an FIR was lodged and investigation commenced. Investigation Officer inspected the place of occurrence on 17.1.2005, collected bed sheet, blood stained pillow cover, three portion of cotton mattress and a torn white cloth having blood clots and also recovered blood stained green undergarment and one cream coloured pant. Recovery memos were prepared in presence of witnesses namely Dharmendra Kori and Satya Prakash. III. Victim was medically examined on 17.1.2005 at about 2:45 PM at MIG 4, Government Hospital, Aligarh by Dr. Suneeta Sagar (PW-4). Details of medical examination are as follows :- There is perineal tear present at 6'O clock position, muscle deep, about 2 c.m. long. Vaginal swab taken for pathological examination for spermatozoa and for age, adv. X Ray of right hand for Carpal bones. IV. Medical Officer, MIG Government Hospital issued supplementary medical report dated 1.2.2005 of the victim. Details of which are as follows :- X-Ray report – Done at M.S. Hospital, Aligarh, dated 18.1.05. Pathology report - Done at M.S. Hospital. Dead spermatozoa seen. From above report the age of girl is about 8 yrs (Eight) and probability of rape is there. V. On completion of investigation, the I.O. submitted a charge sheet dated 18.2.2005 against the accused/appellant under Sections 376 IPC and 3(2)(V) SC/ST Act, on which cognizance was taken, case committed to Sessions and charges framed under above mentioned Sections on 19.4.2005, to which the accused pleaded not guilty and claimed trial.