Conviction can be based on the sole testimony of the prosecutrix if it inspires confidence, even in the absence of medical evidence.

1. By the present appeal, the Appellant challenges the judgment dated 25th July, 2012 whereby he has been convicted for offence under Section 376 (1) IPC and the order on sentence dated 3rd August, 2012 directing him to undergo Rigorous Imprisonment for a period of 7 years and to pay a fine of Rs.100/-and in default thereof to undergo Rigorous Imprisonment for one day.

2. Learned counsel for the Appellant contends that the conviction has been based on mis-appreciation of facts and law. As per the Doctor, the Appellant was incapable of sexual intercourse. Thus he could not have been convicted for offence under Section 376 IPC. Further the hymen of the prosecutrix was intact. There was no injury either on the male organ or the private parts of the prosecutrix. The FSL result also does not support the prosecution case. Material witnesses have not been examined. No witness has been examined who could have proved the deposit of the seized articles and the safe custody thereof. The FIR was registered belatedly after a period of two days. Though the explanation for registering the FIR belatedly is that the father of the victim was not available, however the case of the prosecution itself is that the father of the prosecutrix was present in home on 7th January, 2010. FIR is only a formal statement and FIR recorded after interrogation does not fall in the said category and cannot be used for corroboration or contradiction. Reliance is placed on Golla Jalla Reddy and Ors. Vs. State of A.P. 1996 SCC (Crl) 713. The conviction is based on the testimony of a child witness who was not found to be reliable and from cross-examination it was clearly evident that the child witness was tutored as she stated that the Police told her what to depose. Thus, there was no voluntariness in the statement of the prosecutrix recorded when she was examined under Section 164 Cr.P.C. by the Metropolitan Magistrate. Reliance is placed on Surya Narain Vs. State 2001 (1) AD (SC) 51 and Panchi Vs. State of U.P. AIR 1998 SCC 2726. Hence the conviction of the Appellant be set aside and he be acquitted of the charge framed.

3. Learned APP on the other hand contends that there are no material contradictions in the testimony of the prosecutrix. The version of the prosecutrix has remained unshattered. Reliance is placed on Sanjay Vs. State 134 2006 DLT 155. The delay of two days in registration of FIR has been duly explained. Even slight penetration is sufficient to prove an offence under Section 376 IPC and the Doctor has not ruled out slight penetration. In view of the unshattered testimony of the prosecutrix there is no infirmity in the impugned judgment.

4. Heard learned counsel for the parties and perused the records. The case of the prosecution is that the prosecutrix used to take tuitions from the sister of the Appellant and thus used to visit his house. On 7th January, 2010 PW8 father of the prosecutrix had gone to attend his work in the hotel and PW7 the mother of the prosecutrix had left the house at 9.30 AM for work in the Kothi. When PW7 the mother of the prosecutrix was going, the Appellant enquired as to where she was going to which she replied that she was going to Kothi. Thereafter, the Appellant enquired as to whether the victim had gone to school or not. PW7 stated to the Appellant that victim had not gone to school as she was not well and left for her work. Thereafter the Appellant went to the house of the prosecutrix where she was all alone. The Appellant took off his clothes and the undergarments of the prosecutrix and inserted his private part into the private part of the prosecutrix. He also inserted his two fingers inside her private parts. She wept loudly and thereafter the Appellant left. When PW7 the mother of the prosecutrix came back to her house she found the prosecutrix sleeping. On PW7 awakening her she started weeping and told to her mother about the incident. Both the prosecutrix and her mother became giddy. The father of the