RAJ KUMAR @ RAJU Vs. STATE OF HARYANA

JUDGEMENT

(1.) Judgment of conviction dated 25.09.2004/order of sentence dated 28.09.2004, passed by the learned Sessions Judge, Sonepat ('trial Court' for short), convicting and sentencing appellant-Raj Kumar @ Raju, to rigorous imprisonment for 10 years with fine amounting to Rs.5,000/- and in default of payment of fine to further rigorous imprisonment for two years under Section 376 of the Indian Penal Code, 1860 ('IPC' for short); rigorous imprisonment for three years with fine amounting to Rs.2,000/- and in default of payment of fine to further rigorous imprisonment for one year under Section 452, IPC, and to rigorous imprisonment for one year under Section 506, IPC, are under challenge in this appeal brought by convict-Raj Kumar @ Raju.'State is contesting the appeal. I have heard learned counsel for the appellant and the learned counsel for the State, besides scanning the record of the case, requisitioned from the learned trial Court.

(2.) Learned counsel for the appellant would argue that in the evidence of Dr. Abha Bhawan (PW1) it has come on record that there were no injuries on the person of prosecutrix and her hymen was intact, while, according to the report, Exhibit PG, of the Forensic Science Laboratory (for short FSL), no semen was detected on the clothes of the prosecutrix and the vaginal swabs. These circumstances, according to learned counsel for the appellant, take the case out of the purview of Section 376, IPC, and, even if, story of the prosecution is taken to be proved, through and through, it is a case of Section 376, IPC, read with Section 511, IPC. In support of his contention, learned counsel for the appellant refers to a judgment passed by this Court in Kuldeep Kumar @ Bittu and another Vs. State of Punjab, 2007 3 RCR(Cri) 587.

(3.) It has also been argued on behalf of the appellant that though the occurrence is stated to have taken place at 1.00 p.m on 12.10.2003, the prosecutrix made statement, Exhibit PH, before the police at 5.40 p.m on 13.10.2003 and the interregnum has remained totally unexplained. This according to learned counsel for the appellant, is fatal to the case of prosecution.