JUDGMENT :

1. Feeling aggrieved with the impugned judgement dated 05.11.2019 passed by the Additional Session Judge/Special Judge (POCSO Act), Court No. 01, Gorakhpur in Special Session Trial No. 19/2014 (State of U.P. Vs Azam) arising out of Case Crime No. 652/2013, under Section 376 IPC and Section 5 (m)/6 of POCSO Act, Police Station-Khorabar, District-Gorakhpur whereby the accused-appellant was convicted under Section 376 I.P.C. and sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 25,000 and in case of default in depositing the amount of fine additional rigorous imprisonment for six months was also awarded, the present appeal has been preferred.

2. As per the case of the prosecution, Savitri Maurya, wife of Raj Kumar, submitted a report to the police station concerned that on 07.12.2013, she was in the market. Her daughter victim X, aged 11 years was at home. At around 8:00 pm, her neighbor Azam came to her house, shut the mouth of her daughter and took her to the adjacent under-construction house. He forcibly raped her. Upon hearing the alarm raised by the victim, villagers and her family members reached there, having torches in their hands and saw Azam fleeing away while wearing his pant. Her daughter narrated the whole incident when she returned from the market.

3. On the basis of the aforesaid written report, case crime No. 652 of 2013, under Sections 376 (2) (1) I.P.C. and Section 5 (m)/6 of POSCO Act, 2012 was registered against the accused-appellant.

4. The investigation was set into motion. After completing preliminary formalities, the investigating officer took the blood-stained underwear of the victim worn by her at the time of the incident into their possession and sent the same for forensic examination. The applicant Azam was apprehended and his underwear, which he was wearing at the time of the incident, was also taken into possession and sent for forensic examination. The recovery memo was prepared accordingly.

5. The victim was medically examined. Her statement under Section 164 Cr.P.C. was recorded. The site plan of the place of occurrence was prepared. The statements of the victim and other witnesses were recorded and after the conclusion of the investigation a charge sheet under Section 376 (2) (i) I.P.C. and 5 (m)/6 of POSCO Act against the appellant.

6. Charge under Section 376 I.P.C. and Section 5 (m)/6 POCSO Act was framed against the accused-appellant. He pleaded not guilty and claimed to be tried.

7. In order to prove its case, the prosecution produced three witnesses of fact as PW1 Savitri Maurya (informant), PW2 Km. Priya (sister of the victim), PW3 the victim and formal witnesses as PW4 Dr. Subhra Singh, PW5 Sri Prakash Yadav (Investigating Officer) and PW6 Head Constable Deena Nath Pal.

8. After the close of prosecution evidence, the statement under Section 313 Cr.P.C. of the accused-appellant was recorded. He denied the commission of the offence as alleged by the prosecution. He stated that the witnesses of fact have given false statements against him. The victim was tutored thus she deposed against him. On the basis of the medical evidence, the commission of rape was not confirmed. The charge sheet was filed on the basis of an unfair investigation. The witnesses are inimical to him. In his additional statement, he stated that the victim was in love with his younger brother, letters were exchanged between them and a demand for a gift was also made by the victim. His younger brother was not giving money to his family members. On the day of the incident, he saw both of them together. He scolded them and asked them not to meet again and due to that reason, he has been falsely implicated in the present case.

9. After weighing the evidence available on record and considering the rival contentions, the learned trial court convicted and sentenced the accused-appellant as referred to above.

10. I have heard Sri Mohd. Shoeb Khan, the learned counsel for the accused-appellant and Sri