JUDGMENT :

DR. D.P. CHOUDHURY, J.

The captioned appeal is filed challenging the judgment of conviction and sentence passed by the learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur in G.R. Case No. 23 of 2013 for the offence under section 376(2)(i) of I.P.C. read with section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”).

2. The unshorn details of the prosecution case is that on 31.5.2013 at about 6.00 a.m. the informant Chanchala Jena along with his son had been to a feast by leaving the victim girl aged about 12 years old in the house. The husband of the informant had also left the house to deposit electric bill. So, taking advantage of loneliness of the victim the appellant entered into their house and committed forcible rape on the 12 years old victim girl after tearing her wearing apparel. During the occurrence the father of the victim girl returned home. When father of the victim girl returned home, the appellant seeing him fled away after criminally intimidating the victim and her father. The informant after returning to the home came to know about the incident from the victim and her husband. On 3.6.2013 the informant lodged F.I.R. before the I.I.C., Aska Police station, after which the investigation swung to action. During investigation the police examined the witnesses, the victim girl was examined by the doctor on police requisition, the police prepared spot map, examined the witnesses including the victim and sent the appellant for medical examination. During investigation the police also seized the wearing apparel of the victim and the appellant and sent same for chemical examination. The statement of the victim girl has been recorded under section 164 Cr.P.C. After completion of investigation charge sheet was submitted.

3. The plea of the appellant as revealed from the statement recorded under section 313 of Cr.P.C. and the suggestion given during cross-examination to the prosecution witnesses, is squarely denial to the occurrence and he has been falsely implicated in this case due to previous enmity with the husband of the victim and he pleads innocence.

4. The prosecution in order to prove the charge examined nine witnesses. The defence examined none.

5. The learned trial court after analyzing the evidence from the side of the prosecution found the appellant guilty and accordingly convicted him under section 376(2)(i) of the I.P.C. read with section 4 of the POCSO Act.

SUBMISSIONS:

6. Learned counsel for the appellant submitted that the learned trial court has erred in law by not appreciating the evidence on record properly and reached a wrong conclusion. According to him, no outsider has been examined in this case except the parents, victim and relative of the victim.

7. Learned counsel for the appellant further submitted that there is discrepancy between the statement of the victim (P.W.2) and her statement made before the Magistrate under section 164 of Cr.P.C. because during her statement before the court she had not stated that the appellant over powered her and opened her under garment as well as his under garment and then committed rape, whereas she stated so during the statement made under section 161 of Cr.P.C. She never stated before the court to have made any resistance to the overt act of the appellant. She stated under section 164 of Cr.P.C. that the appellant offered her Rs.50/-out of Rs.500/-which is to be encashed, but she did not state this fact before the court.

8. Learned counsel for the appellant further submitted that P.W.7 who is the doctor did not find any external injury on the person of the victim girl, whereas the doctor found tenderness over the labia minora and labia majora. Thus, he submitted that in absence of external injury, but presence of such tenderness consensual sex of the victim girl with the appellant cannot be ruled out. Moreover, he submitted that the chemical examination report did not support the case of the