BHUVANESHWAR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Learned Public Prosecutor has chosen not to file reply to this application for suspension of sentences and proposes to argue the matter orally.

(2.) The appellant applicant herein stands convicted for the offences under Section 318 I.P.C. and Section 5(c)/6 of POCSO Act vide judgment dated 15.09.2016 passed by the learned Special Judge, (POCSO Act Cases), Bhilwara in Sessions Case No.30/2014.

(3.) Shri Farzand Ali and Shri Naman Mohnot learned counsel representing the appellant applicant vehemently and fervently contended that the entire case of the prosecution is false and fabricated. They urged that the F.I.R. (Ex.P/1) was lodged after a significant delay. The victim Mst.P was allegedly subjected to forcible sexual assault by the appellant in the Shishu Gyan School, Asind in the month of September 2013 due to which, she conceived. The girl delivered an aborted foetus on 14.12.2013. They urged that the fact regarding the girl having been allegedly subjected to forcible sexual intercourse by the appellant was admittedly divulged by her to her parents on 14.12.2013 itself but still, the F.I.R. was lodged as late as on 17.12.2013 which clearly creates a grave doubt on the truthfulness of the prosecution story. They referred to the FSL (DNA examination) report (Ex.P18) as per which, DNA profile could not be obtained from the femur bone of the foetus and thus, no conclusion could be drawn regarding its matching with the blood (DNA) sample of the accused appellant herein. Shri Farzand Ali further drew the Court's attention to the statement of the Medical officer Dr.Rajkumar P.W.15 who categorically stated that the foetus which he examined (the one aborted by the victim) was 16 weeks old. Learned defence counsel drew the Court's attention to the cross-examination conducted from the Medial Officer wherein, it was elicited that the foetus was weighing 500 gms. which can only be gained when foetus is of 4-5 months. Shri Farzand Ali thus urged that ex-facie, the story set up in the statement of the victim P.W.1 Mst.P that the accused appellant subjected her to forcible sexual intercourse "in the month of September 2013"? is belied by positive medical evidence of Dr.Rajkumar, who stated that the foetus was 4 months old and thus, the concievement by the victim could not be of September 2013. He thus urged that there are unsurmountable loopholes in the prosecution story which clearly indicate that the entire case is false and fabricated as against the appellant. As per Shri Farzand