JUDGEMENT

1. The present appeal under Section 374 of Cr.P.C. is preferred by the appellant against the judgment of conviction and order of sentence dated 26-12-2017 passed by the Special Judge (Atrocities Act), Shivpuri in Special Trial No.77/2016 whereby appellant has been convicted as under:

S.No. Offence u/s Imprisonment Fine Default Stipulation 1 376(2)(tha) r/w 4 of POCSO Act 10 years' RI Rs.10,000/- 2 years' RI

2. Precisely stated facts of the case as per the case of prosecution are that prosecutrix aged 15 years is a mentally retarded girl. On 25- 04-2016 when her mother was giving bath and changing the clothes of prosecutrix, she cried due to pain. On enquiry, she found swelling and laceration over the private parts of prosecutrix. On asking, prosecutrix named the appellant stating that at about 4-5 pm on Monday, appellant took her to ruins behind the Katarra School and committed rape with her.

Thereafter, mother of the prosecutrix went to the house of accused/appellant to complain the appellant but since mother of appellant started quarreling her, therefore on 28-04-2016 she lodged the FIR at Crime No.153/2016 at Police Station Narwar District Shivpuri. Thereafter, investigation started, prosecutrix was medically examined, x-ray for age determination was done and after completing all necessities of the investigation, challan was filed in the matter under Sections 376(2), 377 of IPC, Section 3/4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”) and Sections 3(2) (v), B(i)(ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 before the concerned Court.

3. Thereafter, case was committed to the Special Court. Trial Court framed the charges and proceeded with trial. Before the trial Court, appellant abjured his guilt and prayed for trial. On behalf of prosecution, 9 witnesses were examined and in defence 2 witnesses have been examined to establish the plea of alibi. After recording of evidence ocular as well as documentary and hearing the submissions of counsel for the parties, the trial Court convicted and sentenced the appellant as referred above, therefore, appellant is before this Court.

4. It is submitted by learned counsel for the appellant that the trial Court erred in convicting the appellant for the offence referred above. There is material contradictions and omissions between the statements of prosecution witnesses and such aspect has not been considered by the trial Court. Independent witnesses examined by the prosecution did not support the story of prosecution and declared hostile. No explanation has been given by the prosecution for the delayed FIR and this aspect has not been taken into consideration by the trial Court. The spot map prepared by the Police does not match with the spot map prepared by Patwari under the instruction of SDO(P), Karera District Shivpuri. The case of prosecution is not medically corroborated as the Dr.

Anjana Jain (PW-5) did not give opinion in relation to commission of rape with the prosecutrix. Further the trial Court committed grave error in not taking into consideration the statements of defence witnesses Meena Prajapati (DW-1) and Deepak Prajpati (DW-2). The ground of delay in relation to sending the clothes of prosecutrix to the FSL report has also been raised by the appellant. Thus, prayed for setting aside the impugned judgment of conviction and order of sentence passed by the trial Court.

5. On the other hand, learned counsel for the respondent/State opposed the prayer and supported the impugned judgment of trial Court. It is further submitted that a mentally retarded girl aged 15 years has been subjected to commission of rape by the appellant, injuries were also found over the private parts of the prosecutrix and the case of prosecution is duly supported by t