AJAY KUMAR Vs. STATE

JUDGEMENT

(1.) By the present appeal the Appellant impugns the judgment dated 19th September, 2001 whereby the Appellant has been convicted for offence punishable under Sections 366/376 IPC and the order on sentence dated 20th September, 2001 whereby he has been directed to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of Rs. 5,000/- under Section 376 and Rigorous Imprisonment for a period of seven years and a fine of Rs. 2,000/- for offence under Section 366 IPC. Both the substantive sentences were directed to run concurrently.

(2.) Learned counsel for the Appellant contends that the testimony of the prosecutrix is not credible and thus the Appellant is entitled to the benefit of doubt. There are material contradictions in the statement of the prosecutrix. According to the prosecutrix herself she was living in a house along with the two sisters, father and other family members of the Appellant at Kanpur. However, as per the father of the prosecutrix he along with the father of the Appellant kept searching for the Appellant at night. There is no medical evidence to support the allegations of alleged assault. As per the MLC of the prosecutrix, the tear was old. There was no external injury and there was no evidence of recent intercourse. As per the CFSL result no semen was detected on the underwear or vaginal slides of the prosecutrix. The prosecutrix was 15 1/2 years old at the time of incident and had voluntarily gone with the Appellant and thus the ingredients of Section 366 IPC are not made out. In the alternative even if it is found that the Appellant committed the alleged offence in view of the fact that the prosecutrix was a consenting party for the reasons to be recorded the Appellant be released on the period already undergone. As per the FIR besides the prosecutrix, her maternal aunt had also gone missing with her however, no evidence has been adduced during the trial as to where the aunt was.

(3.) Learned APP for the State on the other hand contends that the testimony of PW6, the prosecutrix is consistent and is corroborated by the witnesses of recovery, the Investigating Officer PW8 and her father PW7. The age of the prosecutrix has been proved by PW5 to be less than 16 years and hence her consent is immaterial. Thus there is no merit in the appeal and the same be dismissed.