JUDGMENT Hon’ble V.K. Bist, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 23.10.2010, passed by Sessions Judge, Pithoragarh, in Sessions Trial No.43 of 2007, whereby the said court has convicted the accused/appellant Bhupender Singh under Section 376 and 506 of I.P.C., and sentenced him to undergo rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 50,000/- under Section 376 I.P.C., and in default of payment of fine simple imprisonment for a period of two years and rigorous imprisonment for a period of two years under Section 506 of I.P.C. It was directed that all the sentences shall run concurrently. It was also directed that the prosecutrix Smt. Sarita shall be entitled to receive Rs. 40,000/- from the fine imposed upon the accused. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 11.06.2007 P.W.2 Kaman Singh (father of the victim) (complainant) made a written complaint to the District Magistrate, Pithoragarh, stating therein that the marriage of his daughter Sarita solemnized with Shri Hemraj resident of Chaupata Devsthal according to Hindu rituals. On 02.06.2007, Shri Hemraj resident of Chaupata Devsthal called him and his wife to Pithoragarh. When he (complainant) and his wife met with Hemraj at Pithoragarh, at that time his wife Sarita was also with him. Hemraj informed them that their daughter is pregnant and told them to take her along with them to their house. Then, he and his wife asked their daughter Sarita about her pregnancy. After that, she informed them that on 14.09.2006 at around 08:00 p.m., when she was preparing food at Goth, then Bhupender Singh, S/o Shri Narayan Singh, Village Doli, Patti-Kharkdoli, Tehsil & District-Pithoragarh, forcefully broken the strip of her Paijama and raped her. She also informed them that on that day, her father and mother had gone to the house of her sister and he (accused) threatened her that if she discloses anything to anyone, then he would kill her entire family. He also told her that she has one brother after seven sisters and he would kidnap him and would kill him. She informed them that due to threat as well as also due to poverty, she could not inform anyone about the incident. He also told her that she has one brother after seven sisters and he would kidnap him and would kill him. She informed them that due to threat as well as also due to poverty, she could not inform anyone about the incident. Several times he, on seeing her alone and on giving threat that if she discloses anything to anyone he would kill all her family members, raped her. She also informed them that she is carrying the child of Bhupender Singh. The complainant in the said report stated that after knowing the above facts, he informed Bhupender Singh and his father and then they told him that they would settle the dispute in the village itself. 03.06.2007 was Sunday. On 04.06.2007, they sought time from the Panchayat upto 08.06.2007 to solve the issue, but the matter was not solved and Bhupender Singh and his father denied the allegation of commission of rape. 09.06.2007 was public holiday and on 10.06.2007 report could not be lodged. In the said complaint, the complainant requested to take legal action in the matter and prayed to punish the accused and further requested to send the matter to the concerned police for inquiry. On the basis of said written complaint, F.I.R. was lodged on 13.06.2007 at 02:00 p.m. and Crime no.1 of 2007 was registered in respect of offences punishable under Section 376 and 506 of I.P.C. against the accused Bhupender Singh. Investigation was taken up by P.W.5 Patwari Hem Chandra Sharma, who interrogated the witnesses and started investigation. Her statement under Section 164 Cr.P.C. was recorded before the Chief Judicial Magistrate, Pithoragarh, in which she stated that the accused Bhupender Singh committed rape on her and threatened her of dire consequences, if she dares to disclose the incident to anyone. She stated that due to threat, she did not disclose the incident to anyone. She stated that her marriage was solemnized with Hemraj on 14.05.2007. She further stated that her husband Hemraj came to know about the pregnancy after the marriage. Her husband took her to Pithoragarh on 02.06.2007 where he conducted her ultrasound in which foetus of around 8 months was determined. She also stated that after 14.09.2006, accused Bhupender Singh several times committed rape on her and prior to her marriage, she had no physical relations with anyone except Bhupender Singh. Her husband took her to Pithoragarh on 02.06.2007 where he conducted her ultrasound in which foetus of around 8 months was determined. She also stated that after 14.09.2006, accused Bhupender Singh several times committed rape on her and prior to her marriage, she had no physical relations with anyone except Bhupender Singh. In reply to Magistrate, she stated that since accused threatened her to kill her younger brother, she did not tell anyone that she was raped by the accused. After completion of investigation, the said Investigating Officer submitted charge sheet against the accused Bhupender Singh, for his trial in respect of offences punishable under Sections 376 and 506 I.P.C. 4. The Chief Judicial Magistrate, Pithoragarh, on receipt of the charge sheet, after giving necessary copies to the accused, as required under section 207 Cr.P.C., committed the case to the court of Sessions for trial. After hearing the parties on 08.12.2008, learned Sessions Judge, Pithoragarh, framed charge of offences punishable under Sections 376 and 506 I.P.C, to which the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Smt. Sarita (the victim), P.W.2 Kaman Singh (father of the victim) (complainant), P.W.3 Dr. Nirmal Punetha (Medical Officer), P.W.4 Smt. Tulsi Devi (mother of the victim) and P.W.5 Patwari Hem Chandra Sharma (Investigating Officer). On 21.04.2010, D.N.A. test of the accused Bhupender Singh and Km. Jyoti (daughter of Smt. Sarita) was conducted. In the D.N.A. report, the doctor opined that Km. Jyoti is consistent as biological child of Bhupender Singh. Oral and documentary evidence was put to the accused under section 313 Cr.P.C., in reply to which he alleged that the evidence adduced against him is false. After hearing the parties, the trial Court found the accused guilty of charge of offences punishable under Sections 376 and 506 of I.P.C., and convicted him accordingly. Aggrieved by said judgment and order dated 23.10.2010, passed by the Sessions Judge, Pithoragarh, in Sessions Trial No.43 of 2007, this appeal is preferred by the convict. 5. Before further discussion, this Court thinks it just and proper to mention the observations made by P.W.3 Dr. Nirmal Punetha, after conducting medical examination of Smt. Sarita (P.W.1), on 15.06.2007. The observations made by the Medical Officer in the Medical Report (Ext. A-3) are being reproduced below: “Breast, areola, nipple well developed. Nipple & areola dark blackish brown in colour. Before further discussion, this Court thinks it just and proper to mention the observations made by P.W.3 Dr. Nirmal Punetha, after conducting medical examination of Smt. Sarita (P.W.1), on 15.06.2007. The observations made by the Medical Officer in the Medical Report (Ext. A-3) are being reproduced below: “Breast, areola, nipple well developed. Nipple & areola dark blackish brown in colour. Milky discharge present on pressing nipple. Axillary & Pubic hairs well developed. Vagina admitting two fingers easily. No bleeding/leaking. No mark of injury all over the body.” The doctor opined that she is pregnant about 34 weeks. The victim was advised for USG of pelvic organ for confirmation. According to the USG report, her E.D.D. was 19.07.2007. Single live foetus of 33 weeks. 6. P.W.1 Smt. Sarita is the victim. In her testimony, she stated that she knows accused Bhupender Singh resident of Village Doli and he is her uncle. She stated that on 14.09.2006 at around 08:00 p.m., when she was preparing food at Goth then Bhupender Singh, on seeing her alone, forcefully broken the strip of her Paijama and on giving threat to kill her siblings, raped her. She stated that she started crying. Then, the accused threatened her by saying that if she makes hue and cry, he would kidnap her only brother, who is after her seven sisters, and would kill him and her parents also. She stated that on 14th September, 2006 her parents were not at home. They had gone to the house of her elder sister at Khuna. On that day, her three younger sisters and younger brother were studying at second floor of the house. She stated that the accused last time raped her in November, 2006. She did not remember the date. She stated that the accused forcefully 3-4 times committed rape upon her from 14th September, 2006 upto November, 2006. She stated that on 2nd June, 2007, she informed her parents about the same. She stated that she did not inform this earlier because he threatened her to kill her siblings. She stated that on 14th May, 2007, her marriage was solemnized with Hemraj S/o Puran Singh, resident of Village Chaupata and she was carrying the child of Bhupender Singh. On 2nd June, 2007, her husband brought her to Pithoragarh. She stated that she did not inform this earlier because he threatened her to kill her siblings. She stated that on 14th May, 2007, her marriage was solemnized with Hemraj S/o Puran Singh, resident of Village Chaupata and she was carrying the child of Bhupender Singh. On 2nd June, 2007, her husband brought her to Pithoragarh. On that day, he called her parents from Village Doli and informed them that their daughter is pregnant and told them to take her along with them to their house. Then, her parents asked her. Thereafter, she narrated the whole incident and since then, she is residing in Nirashit Mahilla Ashram. She stated that she was carrying the child of Bhupender Singh. Female child was born on 18July, 2007 in Women Hospital Pithoragarh to whom she carried in the Court that day. She stated that the site plan was prepared on the information supplied by her. She proved the Site Plan (Ext.A-1). 7. P.W.2 Shri Kaman Singh (father of the victim) has stated on oath that he knows accused Bhupender Singh, who is also a resident of his village. Sarita is his daughter. He stated that he has seven daughters and after them, he has one son. On 14th May, 2007, marriage of daughter Sarita was solemnized with Shri Hemraj resident of Chaupata Devsthal. On 2nd June, 2007, Hemraj called him and told him to come to Pithorgarh along with his wife. On 02.06.2007, they reached Pithoragarh on the request of Hemraj. Hemraj along with Sarita also reached Pithorgarh. There, he and his wife met with Hemraj and Sarita. Hemraj informed them that their daughter is pregnant and told them to take her along with them to their house. Then, he and his wife asked their daughter Sarita about her pregnancy. After that, Sarita told them the entire story, which has already been narrated above. After the disclosure of the said incident by Sarita to him and his wife, he went with Sarita to the village. On 3rd June, 2007, when he informed accused Bhupender Singh and his parents about the rape committed on Sarita by Bhupender Singh, then the father of the accused, namely, Narain Singh told him that mistake has been committed and they would settle the dispute in the village itself. On 3rd June, 2007, when he informed accused Bhupender Singh and his parents about the rape committed on Sarita by Bhupender Singh, then the father of the accused, namely, Narain Singh told him that mistake has been committed and they would settle the dispute in the village itself. He stated that on 4th June 2007, on the instance of accused and his parents, Panchayat was held before the Panch of village and for settling the issue, time upto 8th June 2007 was granted. On 8th June 2007, the parents of accused did no settlement; rather they denied the allegation of rape and said do whatever you can. He stated that due to public holiday on 09/10-06-07, he could not lodge the report against the accused. On 11-06-2007, he filed a written compliant regarding the said incident to the District Magistrate, Pithoragarh. He stated that before 02-06-2007, they had no information regarding the said incident. He stated that on 11-06-07, he went to the Collectorate, got typed the complaint against the accused and submitted the same before the District Magistrate. He proved the F.I.R. (Ext. A-2). He also submitted that till November, 2006, her daughter Sarita was raped by the accused whenever the accused found her alone. 8. P.W.3 Dr. Nirmal Punetha is the Medical Officer, who conducted medical examination of the victim and proved the medical conducted by her. 9. P.W.4 Smt. Tulsi Devi is the mother of the victim. She also stated the same story. 10. Mr. P.S. Bohara, Advocate for the appellant submitted that the judgment and order of the learned trial Court is against the facts and evidence available on record and trial suffered from glaring infirmity. He submitted that the witnesses produced by the prosecution are interested witnesses and in absence of the independent witnesses, prosecution story is itself doubtful. Thus, the witnesses produced by the prosecution are unreliable. He argued that none of the alleged Panchayat was produced or tendered. The copy of the statement recorded under Section 164 Cr.P.C. had never been supplied to the accused which amounts gross violation of accused’s legal right as provided under Section 207 (iv) Cr.P.C. He argued that the F.I.R. was prepared after due consideration, therefore, the version of the F.I.R. is concocted and is unsustainable in the eyes of law. He submitted that Sarita was a consenting party to the sexual intercourse. He submitted that Sarita was a consenting party to the sexual intercourse. He submitted that the prosecution desperately failed to produce any independent person to witness the presence of the accused at relevant date, time and place, as alleged, and any noise raised in protest of alleged assault. He argued that there is no element of resistance at all and no medical report of sustained injuries on the body of the prosecutrix. He submitted that the F.I.R. was registered after inordinate delay when the fact of pregnancy was recovered by the husband of the prosecutrix after 8 months and the husband is not produced as prosecution witness. He contended that the Panchayat was called for yielding compromise but when the matter could not be resolved in Panchayat, then report was lodged, which proves that F.I.R. is false and merely lodged because the compromise could not be yield up to resolve the matter. He submitted that there is outstanding enmity from last 8-9 years in between the families of both prosecutrix and accused. He submitted that there is very crucial evidence that a member of enemy family enters in the premises of the rivalry family and alarm for rescue is not raised. He argued that it is only possible when there is mutual understanding between the two persons with offer to come in one’s premises or contact with free consent only. He submitted that the trial Court has not applied its judicial mind to the facts and circumstances of the case and wrongly appreciated the evidence and provisions of law. On the other hand, Mr. Vipul Painuly, learned A.G.A. for the State submitted that there is nothing on which basis testimony of the prosecutrix should be disbelieved. He submitted that the appellant failed to prove that he was falsely implicated due to enmity. 11. I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record. As far as delay in lodging report is concerned, the same has properly been explained in the complaint itself. As per the statement of prosecutrix, she was first time raped on 14.09.2006. She could not tell anybody about the rape due to threat given by the appellant. According to her, the appellant threatened that if she makes hue and cry, he would kill her only brother and her parents also. As per the statement of prosecutrix, she was first time raped on 14.09.2006. She could not tell anybody about the rape due to threat given by the appellant. According to her, the appellant threatened that if she makes hue and cry, he would kill her only brother and her parents also. She also stated that thereafter, the appellant several times committed rape on her and lastly raped her in the month of November, 2006. She further stated that one female child was born on 18.07.2007. Victim was threatened that her only younger brother would be killed if she discloses the incident of rape to anyone. It appears that the victim was so much terrified that she could not even tell to her mother about the incident of rape and about her advanced pregnancy even at the time of her marriage. In such circumstances, it cannot be said that she was a consenting party. D.N.A. test of the appellant as well as of the baby girl was conducted, in which child was found as biological child of the appellant. It is pertinent to mention that D.N.A. test was conducted at the request of the appellant. The accused/appellant is uncle of the victim. He raped her and a girl child was born. He has not only spoiled the life of the girl but has also left the child to the mercy of God. Counsel for the appellant failed to prove that appellant was falsely implicated due to enmity. The appellant could not show as to what was the reason to implicate him falsely. Considering the entire evidence, I find that accused/ appellant committed rape on the victim against her wish and consent. 12. Accordingly, the appeal preferred by the accused/ appellant Bhupender Singh is hereby dismissed. The conviction and sentence awarded by the learned Sessions Judge, Pithoragarh in Sessions Trial No.43 of 2007 to the accused/appellant for the offence punishable under Sections 376 and 506 of I.P.C. is affirmed. The period already spent by the appellant in jail shall be adjusted. 13. The accused/appellant is on bail. His bail-bonds are hereby cancelled. The accused/appellant Bhupender Singh be taken in custody immediately to make him to serve out the sentence awarded to him. Let a copy of this judgment alongwith the record of the Court below be sent to the trial Court.