The importance of considering the broader probabilities of a case and not getting swayed by minor contradictions or discrepancies in the victim's statement in cases of sexual offenses.

JUDGMENT :

A.K. Mishra, J.

The conviction of appellant accused U/s.376 read with Section 511 of the Indian Penal Code and sentence thereof to undergo 7 (seven) years rigorous imprisonment and fine of Rs.1000/-, in default to undergo rigorous imprisonment for six months by judgment dtd.30.09.2010 in S.T. Case No.67/112 of 2010-07 is assailed in this appeal U/s.383 Cr.P.C.

2. It is stated by learned Amicus Curiae Mr. S. Dash and also by learned Addl. Standing Counsel that accused has already undergone the sentence.

3. Put briefly, the case of the prosecution is that, on 20.3.2006 the victim, a ten years old girl had been to one of his relation's house with her parents to see the folk dance in the marriage ceremony of the daughter of Lepa Tudu. At 5 P.M. she returned alone to take care of goats before dusk. On the way, the accused, an youth of 28 years old, lifted her to river bank, tearing her wearing apparels, attempted to commit rape. The victim screamed. Two persons came to her rescue. Accused fled away. Village meeting was convened twice. Accused did not turn up. On 23.4.2006 F.I.R. (Ext.4) was lodged by the father of the victim. In course of investigation, the wearing apparels, i.e. saree and blouse, were seized vide M.O.I and M.O.II. The under wear and napkin of accused were also seized vide M.O.III and M.O.IV. Accused was medically examined by the doctor (P.W.6) and found to be capable of sexual intercourse. Injuries on left shoulder and left elbow were found. The victim declined to be examined medically, as is evident from the report (Ext.2) of the doctor (P.W.5). After completion of investigation, charge-sheet was submitted. Cognizance was taken U/s.376, 506(II), read with Section 511 of the Indian Penal Code. The case was committed to the court of Sessions. Trial ensued.

4. In support of its case prosecution examined the victim as P.W.2, her parents as P.W.1 and 4, one seizure witness and two medical officers and investigating officer as P.W.3, P.W.5, P.W.6 and P.W.7.

Defence did not choose to examine anybody and took the plea of denial simplicitor.

5. Learned trial court considered the evidence and found the victim reliable and credible. Her refusal for medical examination did not break the ice as F.I.R. was lodged after two days of which delay was due to village meeting to which the accused did not respond. Minor discrepancies were ignored. While appreciating the evidence, learned trial court observed on the method of proof in paragraph 9 of the judgment which, in my considered opinion, at the outset, was not desirable.

Learned trial court acquitted the accused of the charge U/s.506 of the I.P.C. but found him guilty U/s.376, read with Section 511 of the I.P.C. and sentenced in the manner noted above.

6. Learned Amicus Curiae Mr. S. Dash vehemently urged the following points:-

(i) The F.I.R. was lodged on 23.4.2006 as against the occurrence of 20.4.2006 and the explanation that it was due to village meeting to which accused did not turn up, is not justified.

(ii) The victim as P.W.2 has stated that three witnesses, namely, Basi Murmu, Madan Murmu and Badal Murmu came to the spot hearing her shout but none of them was examined and such non-examination is nothing but to suppress the truth.

(iii) The victim refused to be examined medically without assigning any reason. Such conduct was not in consonance with ordinary human nature alleging attempt to rape.

6-(a). Learned Amicus Curiae relied upon a decision in the case of State of Karnataka Vrs. Mapilla P.P. Soopi, 2004 AIR SC 83 in support of his contention that the testimony of victim should be viewed with suspicion in absence of medical examination.

In the aforesaid decision the Hon'ble Apex Court analyzed the evidence for offence U/s.376 of the Indian Penal Code and two witnesses who were neighbours of the victim were found to have not supported the prosecution case. The original medical report was not produced. In that context the Hon'ble Supreme Court found the accused not guilt