Prosecution must establish guilt beyond reasonable doubt in sexual offences; inconsistent statements and lack of evidence weaken claims against the accused.

JUDGMENT :

SUBHASH VIDYARTHI, J.

1. By means of the instant criminal appeal filed under Section 374(2) Cr.P.C., the applicant has challenged the validity of the judgment and order dated 26.07.2018 passed by Sri Ram Suchit, the learned Additional Sessions Judge/ Special Judge, POCSO Act, Court No.8, Sitapur in Special Sessions Trial No. 1 of 2016 arising out of Case Crime No. 268 of 2015, under Sections 363 , 366, 376 IPC and Section 3 /4 POCSO Act, Police Station Sadarpur, District Sitapur.

2. The aforesaid case was instituted on the basis of a written complaint given by the informant on 15.11.2015 against three persons, including the appellant Tariq alias Lohiya and his two brothers Salim and Idris, stating that when the informant’s daughter aged 16 years had gone out of her home at about 10 p.m. in the intervening night of 12/13.11.2015 for urinating, all the accused persons enticed her away. He kept on making enquiries about his daughter but he could not get any knowledge about her.

3. It is recorded in the case diary that the informant had come to the police station along with a written complaint on 15.11.2015 and upon this complaint, an FIR bearing Case Crime No. 268 of 2018 was lodged in Police Station Sadarpur, District Sitapur at 13:10 on 15.11.2015, under Sections 3 63 , 366 IPC.

4. The informant gave a written application to the Station House Officer stating that although he had given a complaint against the appellant and his brothers but after making enquiries from his daughter, it transpired that she had gone away to the house of her maternal grandfather out of her own free will and that he had given the complaint containing false accusations after being mislead by some person. The informant stated that her daughter had gone away to her maternal grandparents’ place and had returned out of her own free will and he did not want any further action on his complaint. This application also had thumb impression of the victim and her mother and it had the signatures of five other persons.

5. The victim was taken to District Women Hospital, Sitapur for her medico legal examination on 19.11.2015. She told the doctor that she had gone out of her home at about 10:00 p.m. for urinating, five persons caught her, took her to a grove, the appellant committed the misdeed against her and the other four persons kept a watch. They had threatened her with a weapon and had assaulted on her right leg with a banki. She had fallen unconscious. The medico legal examination report mentions that the victim had not taken bath and she had changed her undergarments but had not washed her undergarments and clothes. On external examination, a stitched wound of 5 c.m. x 1 c.m. was found on her right ankle. The hymen was opined to be old torn and healed. It is recorded in the medico legal examination that the Investigating Officer had collected the victim’s undergarments and clothes and had sealed the same for DNA examination for evidence. The nail clippings and blood samples of the victim were taken for DNA examination and samples of pubic hairs and vaginal swabs were also collected for examination. On the basis of the findings of the medico legal examination, the doctor opined that there were signs of use of force and sexual violence could not be ruled out. This report has been marked as exhibit A-2.

6. As per radiological examination, age of the victim has been opined to be about 17 years. The pathological examination report mentions that no spermatozoa were seen in the vaginal smear slide.

7. A recovery memo dated 26.11.2015 states that only the victim’s salwar suit was collected on 26.11.2015 but as per it, her undergarme