PRADEEP Vs. STATE

JUDGEMENT

(1.) BY this appeal, the Appellant challenges the judgment dated 15 th December, 2011 convicting the Appellant for offence under Sections 363/376/511 IPC and the order on sentence dated 19th December, 2011 directing him to undergo Rigorous Imprisonment for a period of 5 years and fine of Rs.10,000/ - for offence under Sections 376/511 IPC and Rigorous Imprisonment for 3 years and fine of Rs.10,000/ - for offence under Section 363 IPC.

(2.) LEARNED counsel for the Appellant contends that the Appellant has been falsely implicated. Though the prosecutrix was 8 years old, however, her medical examination does not support the case of the prosecution. PW13 Dr. Preeti has stated that there was no external injury on the prosecutrix. There are inherent contradictions in the statement of the prosecutrix as on the one hand she stated that the Petitioner took her for showing the picture and on other that the Appellant took her for giving toffee. Even FSL report does not prove that offence of rape was committed much less an attempt to rape. If the proseuctrix is held to be reliable and conviction to be based on it then the Appellant ought to have been convicted for offence under Section 376 IPC and not with the aid of Section 511 IPC and if the prosecutrix is not reliable then the conviction for offences under Sections 376/511 and 363 IPC is liable to be set aside. Hence the Appellant is entitled to be acquitted.

(3.) THE case of the prosecution is based on the statement of PW -1 the prosecutrix who was aged 8 years. She stated that she was studying in Class I in a school near her house. On 12th December, 2010 in the evening she was playing outside her house with the friends when the Appellant who was staying nearby came there and lifted her in his lap. The Appellant took her to his room and removed her clothes. She felt pain and something white came out. He cleaned it and allowed her to go home. She informed her nanaji about the incident who took her to the police station. The police took her to medical examination and thereafter she returned home with Nanaji. On cross -examination, this witness clarified that the Appellant took her to his room on the pretext that he will give her toffee. The light of the room was off and TV was also switched off at that time. Despite cross - examination, nothing material could be elicited from this witness nor any inherent contradiction brought out.