JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Instant appeal is preferred against the judgment and order dated 28.08.2021/31.08.2021, passed in Sessions Trial No. 24 of 2019, State Vs. Sanjay Semwal @ Minu and another, by the court of District and Sessions Judge, Pauri Garhwal. By the impugned judgment and order, the appellant has been convicted under Section 376 (1) and 506 IPC and sentenced as hereunder:-

“(i) Under Section 376 (1) IPC, rigorous imprisonment for a period of ten years and a fine of Rs.10,000/-. In default of payment of fine to undergo rigorous imprisonment for a further period of three months.

(ii) Under Section 506 IPC, rigorous imprisonment for a period of two years and a fine of Rs. 5000/-. In default of payment of fine to undergo rigorous imprisonment for a further period of one month."

2. The prosecution case, briefly stated is as follows:-

The prosecutrix left her house on 17.05.2019 to get some goods from the market, but she did not return. This fact was informed to the Police. On 18.05.2019, the prosecutrix returned her house at 9:15 AM. On being asked, she revealed that on 17.05.2019, at 5:35 in the evening, the appellant enticed her in a Scooty. He was accompanied by a Rajat also. The appellant took her in the house of his aunt (mother's sister). There appellant made her drink beer. In the night, the appellant forcibly raped her in the kithchen and threatened her to life in case she reveals it to anyone. A report of the incident was given on 18.05.2019 at Mahila Police Station Srinagar. Based on it, FIR under Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 and Section 363, 376, 506 IPC was lodged and investigation was carried out.

3. During investigation, statements of the prosecutrix were recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short, “the Code"). The Investigating Officer (for short, “the IO") also collected the transfer certificate of the prosecutrix to ascertain her date of birth. The prosecutrix was medically examined also. Certain articles were sent for forensic examination. A report was received. Neither semen nor blood could be detected on any of the articles sent for examination. The IO also prepared site plan of the place of incident. The IO found that the prosecutrix was above 18 years of age on the date of incident. After investigation, charge sheet under Sections 365, 376 and 506 IPC was submitted against the appellant and co-accused Rajat Patel.

4. On 09.09.2019, charge under Sections 365, 376, 506 IPC was framed against the appellant. Charge under Section 365 IPC was also framed against co-accused Rajat Patel.

5. In order to prove its case, the prosecution examined as many as eleven witnesses, namely, PW1, the prosecutrix, PW2 the mother of the prosecutrix, PW3 Suman Lata Panwar, PW4 Dr. Navjyoti Bora, PW5 Sarika Devi, PW6 Soni Naithani, PW7 Dimpal, PW8 Constable Police, Rekha, PW9 Aamod Thapliyal, PW10 Sub Inspector, Sandhya Negi, the IO and PW11 the friend of the prosecutrix.

6. The appellant was examined under section 313 of the Code. According to him, he has been falsely implicated in the case. After considering the material on record, by the impugned judgment and order, co-accused Rajat Patel has been acquitted of the charge under Section 365 IPC. But, the appellant has been convicted under Sections 376 (1) and 506 IPC and sentenced, as indicated hereinabove. Aggrieved, the appellant is in appeal.

7. Heard learned counsel for the parties and perused the record.

8. Learned senior counsel for the appellant would submit that the prosecution has utterly failed to prove its case against the appellant. The statement of the prosecutrix itself reveals that the appellant did not commit any offence. Learned senior counsel raised the following points in his submission.

(i) It is the consensual act of the prosecutrix. She has free consent to the act.

(ii) The medical evidence does not support the prosecution case.

(iii) The forensic rep