Mr. Rakesh Kumar Jain, J.: - The trial Court has convicted the appellant for offence under Section 376 read with Section 506 of the Indian Penal Code, 1860 (for short ‘the Act’) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the SC & ST Act’), and sentenced as under:

Under Section 376 IPC Rigorous Imprisonment for a period of seven years and fine of Rs.10,000/-. In default of payment of fine to undergo RI for a period of one year;

Under Section 506 IPC Rigorous Imprisonment for a period of three years and fine of Rs.5,000/-. In default of payment of fine to undergo RI for a period of six months; and

Under Section 3(2)(v) of SC & ST Act Imprisonment for life and fine of Rs.20,000/-. In default of payment of fine to undergo RI for a period of one and a half years.

2. On the formal complaint (Ex.PA) lodged by Resham wife of Mohan Lal, Ruqa (EX.PA/2) was sent and FIR (EX.P/A1) was registered in which it was alleged that on 13.8.2008 at 12.00 noon, the victim had gone to the mountains for collecting vegetables (Karela/ bitter gourd), when Bhupinder @ Papender s/o Indraj caste Gujjar resident of Abheypur (appellant) came there and caught hold of her in his lap from back and after throwing her on the ground, broke open string of her undergarments and committed rape despite her objections and resistances, gave slaps and fists blows on her face and threatened her calling Chamari (Scheduled Caste) that in case you disclose it to anybody then she would be killed and he fled after committing the rape. On reaching home she disclosed all the facts to her husband Mohan Lal and came to the Police Station for lodging the report.

3. The victim was medico-legally examined on 13.8.2008 at 8.35 P.M. vide report (Ex.PH/1), proved by Dr. Meenakshi Baswana (PW9), who tendered her affidavit (Ex.PH) in her examination-in-chief. According to her, the following observations were made during examination:

“(i) There was no external mark of injury.

(ii) The external Genitalia was normal for age and there was no mark of any injury.

(iii) On P/V examination Vagina was two finger tight, there was no abrasion 0.5 cm size on posterior wall of vagina.”

4. She had opined that as per Forensic Science Laboratory Report (Ex.PJ), the possibility of sexual intercourse is not ruled out. In the cross-examination, she had admitted that there was no injury on labia, majora and minora and that she did not give any opinion at the time of conducting MLR whether any sexual assault has taken place or not.

5. The appellant was medico-legally examined on 22.8.2008 vide report (EX.PD/1) which was proved by Dr. Jai Bhagwan (PW5), who tendered his affidavit (Ex.PD) in which he had opined that the appellant was capable of doing sexual intercourse. He also did not find any marks of injury on his body. Dr. Jai Bhagwan (PW5) was not cross-examined by the appellant despite opportunity given.

6. The victim was examined as PW1, who has given the same version that has been given in (Ex.PA) and (Ex.PA/1). Moreover, as per report from the Forensic Science Laboratory (Ex.PJ), human semen was detected on Ex. 1a (Salwar) & 1b (Vaginal swab), but it could not be detected on Ex.2 (underwear) belonging to the appellant.

7. In the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.), the appellant has pleaded innocence and has also led evidence in his defence producing Ashok, Member Panchayat (DW1) and Ram Mehar son of Jokhi Ram (DW2), who have stated that the victim and her husband used to reside in the temple of Harizans, which was looked after by Kamal Dass Priest, who was not a good person. Victim used to sleep in the temple itself. The villagers were annoyed with the Priest and threw him out from the temple. The appellant was one amongst the villagers and as the victim was not happy with the treatment given to the Priest, she has falsely implicated him in the present cas