IMPORTANT POINT
Doctor is not an expert to say whether rape was committed or not. Non-resistance by victim at the time of penetration would not make her a consenting party.

JUDGMENT (CAV)

Birendra Kumar, J.—The sole appellant-Gulli Sah has questioned the correctness of his conviction in POCSO Case No.03 of 2015 arising out of Piro P.S.Case No.55 of 2015. The appellant, abovenamed, was charged for offences under Sections 341,376 and 504 I.P.C. as well as under Section 4 and under Section 6 of the POCSO Act. The appellant was found guilty for offences under Sections 341 and 376 I.P.C. and 4 of POCSO Act and by a necessary implication, has been acquitted of the charges under Section 504 I.P.C. and 6 of POCSO Act, by the impugned judgment dated 18.08.2017.

2. The learned Trial Judge (A.D.J.-I, Bhjojpur Ara) awarded 10 years rigorous imprisonment and fine of Rs. 25,000/- for offence under Section 376 I.P.C. and 10 years rigorous imprisonment and a fine of Rs.10,000/- for offence under Section 4 of the POCSO Act. The sentences would run concurrently. In default of payment of fine, one year imprisonment has been ordered. The fine amount is to be paid to the victim, vide impugned order of sentence dated 23.08.2017.

3. The prosecution case, as disclosed in the fardbeyan of the victim girl, aged about 13 years, is that at about 8.00 P.M. on 10.02.2015 she had gone to the house of Bindeshwar Sah where marriage ceremony was going on. At about 12.00 night while she alongwith her friend Nisha Kumari (P.W.4) was returning to her house, she slipped in a drain and was cleaning her legs at the available Hand Pump and Nisha proceeded forward. At the same time, the appellant came, forcefully took her towards the west side of village and finding a lonely place, tied her hands with rope and after opening her garments, ravished her and thereafter the appellant fled away. Anyhow the victim got herself rid off the ropes and came to her house, disclosed about the incident to her Brother and Bhabhi. The parents were at Amarpurt orchard at that time, hence they were informed. On their return in the morning of 11.02.2015 at 7.00 A.M., they went to complain at the house of the appellant. The appellant and co-accused-Shravan Sah, who had been acquitted of the charge under Sections 323,341 and 504 I.P.C. by the same judgment, allegedly abused and Shravan Sah assaulted with Khanti to her father.

4. The fardbeyan was recorded at 2.00 P.M. on 11.02.2015 and on the basis thereof, the aforesaid police station case was registered. On the same day at about 8.10 P.M., the victim was medically examined vide report at Ext.3. On the very next day on 12.02.2015, the FIR was received by the learned Special Judge and statement of the victim under Section 164 Cr.P.C. was recorded. A copy of the fardbeyan is Ext.2 and a copy of the statement of the victim under Section 164 Cr.P.C. is as Ext.1. After investigation, the police submitted chargesheet vide Ext.4.

5. During trial. The prosecution examined altogether eight witnesses. P.W.1 the victim girl has consistently supported, in material particular, the charge against appellant. P.W.2-Kasturi Devi, the mother of the victim, who has also put her L.T.I. on the fardbeyan, has deposed that on getting information, she returned back to the village. She also protested the act of the accused appellant. Co-accused-Shravan Sah committed assault against her. Thereafter she alongwith the victim and her son Mantu Pasi-P.W.7 went to the police station where the victim gave her statement to the police and put her L.T.I. This witness also put her L.T.I. alongwith her son-Mantu Pasi-P.W.7 on the fardbeyan. P.W.3-Punam Kumari is Investigating Officer of the case. She has supported the initial part of investigation done by her. P.W.5-Nisha Kumari has been declared hostile by the prosecution as she resiled from her statement before the police. P.W. 4-Dr. Pushpa had medically examined the victim. P.W.6-Ajay Kumar Pasi and P.W.7-Mantu Pasi have supported the prosecution case as hearsay witness of the occurrence. Mantu further deposed that the fardbeyan of the victim was recorded in his presence. He had put hi