KHURSHID ALAM Vs. STATE

JUDGEMENT

(1.) By the present appeal, the appellant challenges the impugned judgment dtd. 31/7/2018 convicting the appellant for offence punishable under Sec. 376(2) IPC and Sec. 6 of the Protection of Children from Sexual Offences Act, (in short, 'POCSO Act') and the order on sentence dtd. 6/8/2018, whereby the appellant is directed to undergo rigorous imprisonment for a period of ten years and to pay fine of ?5,000/- in default whereof to undergo simple imprisonment for a period of six months for the aggravated penetrative sexual assault under Sec. 6 of the POCSO Act, and no separate sentence was awarded for the offence punishable under Sec. 376(2)(i) IPC.

(2.) Learned counsel for the appellant submits that the version of the victim who was aged 5 years at the time of alleged incident is not corroborated by the MLC for the reason the MLC only shows slight inflammation around hymen, whereas the victim stated that she was raped three times by the appellant. It is highly unnatural that despite being raped for three times no injuries were caused on the vagina of the minor victim. The slight inflammation around hymen could be for various reasons including infection and allergy. There was no basis for the learned Trial Court to come to the conclusion that there was penetration to some extent. The FSL report shows that no semen was detected on the clothes worn by the victim even on the day when the complaint was made. The finding of the learned Trial Court that the Investigating Agency recovered the clothes worn on that day and not on the day of incident goes to show that no proper investigation was carried out and the same cannot be taken adverse to the appellant. Though in the statement recorded under Sec. 164 Cr.P.C. the victim stated that she was at the house of her friend 'S', however, in her deposition she stated that she did not know who 'S' was. Though in her statement under Sec. 164 Cr.P.C. the victim stated that the appellant inserted his penis in the vagina as well as in her anus, however, in her deposition she denied commission of sodomy. There are further contradictions in the testimony of victim herself. Even the version of the mother of the victim is inconsistent. From the perusal of the statement of the mother of the victim it would be evident that at best it was a case of attempt to rape and not a case of rape. The appellant showed that he was implicated falsely due to enmity, however, his defence was not considered and he has been wrongly convicted and sentenced.

(3.) Mr. G.M. Farooqui, learned APP for the State has taken this Court to the testimony of the prosecutrix and her mother to contend that there are no contradictions in their testimony. He further states that the findings of the learned Trial Court that there were sufficient corroboration even after the delayed medical examination is based on the evidence on record. Thus, the MLC duly corroborates the version of the victim and her mother and the appeal be dismissed.