VINOD SHARMA Vs. STATE

JUDGEMENT

(1.) By this appeal the Appellant lays a challenge to the judgment dated 1 st November, 2010 convicting him for offence under Section 376 IPC and the order on sentence dated 3 rd November, 2010 directing him to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months.

(2.) Learned counsel for the Appellant contends that the statement of the prosecutrix under Section 164 Cr.P.C. was recorded after three days though she was conscious and oriented. The FIR was registered on the statement of the mother PW1 at whose instance the Appellant has been falsely implicated. The Appellant is not named in the history given in the MLC. The MLC of the prosecutrix shows that the hymen was intact. Further since the prosecutrix was aged around 81/2 years if the Appellant had committed the alleged offence there would have been injuries on the private part of the Appellant which were not found in his MLC. The offence of rape is ruled out because on examination of the Appellant's penis, smegma was found present. Though the prosecution case is that the prosecutrix was wearing a nicker however, as per the seizure memo underwear has been seized. The FSL report also does not support the case of the prosecution as no semen has been found on the alleged underwear of the prosecutrix or vaginal swabs.

(3.) The statements of the prosecutrix and the mother recorded in the Court are contradictory to the statement of the prosecutrix recorded under Section 164 Cr.P.C. by the learned Metropolitan Magistrate. The mother of the prosecutrix stated that she saw blood on the floor however the blood with the control earth has not been seized. No site plan has been prepared of the place. The place of occurrence is doubtful. There are material contradictions in the statement of the prosecution witnesses. There is no evidence against the Appellant and he has been convicted on the basis of assumptions. The Appellant was beaten badly at the spot and then falsely implicated. Thus the Appellant be acquitted of the charge framed.