The prosecution must prove guilt beyond reasonable doubt; inconsistencies in testimonies and lack of medical evidence can lead to acquittal.

JUDGMENT & ORDER :

KAUSHIK GOSWAMI, J.

Heard Mr. N. Mahajan, learned counsel for the accused/appellant. Also heard Mr. P.S. Lahkar, learned Additional Public Prosecutor, Assam for the state respondent.

2. This appeal is presented against the judgment & order dated 26.03.2012 passed by the learned Session Judge, Nalbari in Session Case No. 30/2007, whereby the accused/appellant was convicted under Section 376 of the Indian Penal Code (hereinafter referred to as “IPC”) and sentenced thereof to undergo Rigorous Imprisonment for 7 years and a fine of Rs. 2,000/- and in default of payment of fine, further Imprisonment for 2 months.

3. The brief facts of the case are that on 23.01.2006, PW-5 i.e. the informant lodged an FIR alleging inter alia that on that day at around 3:00 pm, the accused/appellant enticed his niece i.e. the prosecutrix(PW-1) to the Rampur L.P. School, where he raped her inside the school. Accordingly, a case was registered being Mukalmua P.S. Case No. 11/2006 under Section 376(2)(f) of the IPC.

4. Thereafter, the Investigating Officer i.e. PW-7 completed the investigation and submitted Charge-sheet under Section 376 of the IPC against the accused/appellant. Accordingly, the case was committed to the trial Court whereafter the trial Court framed charge under Section 376 (2) (f) of the IPC against the accused/appellant.

5. To bring home the charge, the prosecution adduced 7(seven) witnesses including the Medical Officer i.e. PW-6 and the Investigating Officer i.e. PW-7. The statement of the accused/appellant was thereafter recorded under Section 313 of the Code of Criminal Procedure (hereinafter referred to as “Cr.P.C.”) and the defence adduced 2(two) witnesses. Upon conclusion of the trial and hearing, the trial Court convicted the accused/appellant under Section 376 of the IPC and sentenced him thereof. Against the aforesaid judgment & order of the trial Court, the present appeal has been preferred.

6. Mr. N. Mahajan, learned counsel for the accused/appellant submits that the evidence on record does not warrant conviction of the accused/appellant under Section 376 of the IPC and that the prosecution has miserably failed to prove the case against the accused/appellant beyond all reasonable doubt and as such, the order of conviction is liable to be set aside and quashed.

7. He further submits that the evidence of the prosecutrix is not reliable inasmuch as though she deposed during her examination before the trial Court that blood was coming out from her private parts and that there was full penetration twice, however, Medical Report indicates no sign of recent sexual intercourse. He further submits that the evidence of the prosecutrix is not reliable as there is material discrepancy in her evidence vis-a-vis the evidence of PW-5. He further submits that the medical evidence having not supported the allegation of commission of rape, the prosecution ought to have examined independent witnesses, who were present at that time in the place of occurrence and therefore non- examination of such independent witnesses weakens the case of the prosecution. He further submits that the finding of the trial Court, that the prosecutrix was a minor at the time of the alleged occurrence on the basis of the opinion of the Medical Officer i.e. PW-6 is totally erroneous inasmuch as the Medical Officer relied upon the Radiologist Report, which indicated the age of the prosecutrix below 16 years. He further submits that it is clearly evident from the evidence of the defence witnesses that it gave a different altogether story vis-a-vis the prosecution story and as such, the prosecution case becomes doubtful and on this score alone the impugned conviction ought to be set aside. He further submits that the defence taken by the accused/appellant under Section 313 of the Cr.P.C. having been not considered at all, the conviction is totally vitiated.

8. In support of the aforesaid submissions, he relies upon the following rulings:-

(i) Tameezuddin alias