JUDGMENT

Per: Hon'ble Ravindra Maithani, J.

I have had the benefit of reading the judgment of Brother, Alok Singh, J. I concur with the conclusion, but I still elaborate my own views in arriving at the conclusion.

2. Facts have already been disclosed. The victim's parents, were labourers, who were residing in the makeshift huts at the construction site. She was nine years old. Her uncle, aunt and their two sons were also staying near to their hut. On the fateful day, victim was playing with her cousins. Suddenly, she went missing. A search was made and finally her dead body was recovered from the hut of the appellant. It was hidden below the empty sacks and other articles. A report was lodged and after investigating charge-sheet submitted against the appellant. After trial, by the impugned judgment and order, the appellant has been convicted and sentenced.

3. On behalf of the appellant, learned counsel would argue that it is a case of false implication; appellant is also a labourer and he was a soft target. He has been falsely implicated in the case. The following points/arguments have been raised on behalf of the appellant:-

(i) FIR is not reliable; it is in contradiction to the averments made in the inquest report.

(ii) There were no marks of injury on the genital of the appellant. It goes to the root of the matter and falsifies the prosecution case.

(iii) There have been divergent versions about the colour of the underwear of the victim, which doubts the statement of the witnesses.

(iv) Recovery of hair from the fist of the victim is totally doubtful.

(v) Forensic Science Laboratory (for short “the FSL") Report is not reliable, because the prosecution has not proved, as to how, the hair were taken, preserved, stored and transmitted to FSL. It is not proved that the process was intact.

(vi) Similarly, with regard to semen, it is argued that PW5 Dr. R.C. Arya, examined the appellant on 29.07.2018, but he could not get the sample of his semen. Prosecution has not even shown, as to when the semen of the appellant was extracted. Therefore, it is also doubtful as to how the semen of the appellant was sent for forensic examination.

(vii) The prosecution has not proved, that the other articles sent for forensic examination were kept safely and transmitted properly.

(viii) The appellant did not run away after the incident; his conduct shows that he is innocent; the dead body was first detected by PW3 Mohd. Nayyar Alam. It is he to explain as to how the victim died?

(ix) PW11 and PW12 both are cousins of the victim; they are interested and child witnesses; they are prone to coaching and tutoring; their statement cannot be relied upon.

4. It is argued that the prosecution utterly failed to prove the charges against the appellant. The appellant ought to be acquitted of the charges.

5. In support of arguments, learned counsel placed reliance upon the principles of law, as laid down in the case of Rahim Beg and another Vs. State of U.P., AIR 1973 SC 343 and Devi Lal Vs. State of Rajasthan, 2019 (1) N.C.C. 541. In the case of Rahim Beg (supra) Hon'ble Supreme Court, inter-alia, held that “according to Dr. Kativar, Medical Officer of District jail Rae Bareli, if a girl of 10 or 12 year who is virgin and whose hymen is intact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. No injury was, however, detected by the doctor on the male organ of any of the two accused. The absence of such injuries on the male organs of the accused would thus point to their innocence." (para 26).

6. In the case of Devi Lal (supra), Hon'ble Supreme Court has held that while scrutinizing the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. In this case, the Hon'ble Supreme Court referred to the principle of law as laid down in the case of Sharad Birdhichand Sarda Vs. Stat