The prosecutrix PW2, aged 9 years, was sexually assaulted on 20.02.2004 by an unknown, tall and thin person wearing Signature Not Verified white clothes.
If PW1 and 2 due to poverty, with sheer passage of time by six months before deposing in companyrt had been won over, it will number detract from the offence companymitted by the appellant to warrant acquittal.
PW3 Jasiben, accompanying the prosecutrix was Digitally signed by NEETU KHAJURIA Date 2018.09.28 145700 IST Reason also a minor.
The T.I.P. report Exhibit P38, bears the thumb impression of PW2 who was accompanied by her mother.
He also proved having forwarded the prosecutrix for medical examination, the seizure of exhibits and sending the same to the FSL.
The appellant was apprehended on suspicion along with another.
Reliance was placed on Sheikh Sintha Madhar vs. State Rep. by Inspector of Police, 2016 11 SCC 265 and Prakash vs. State of Karnataka, 2014 12 SCC, 133.
The appellant was identified by PW2.
The appellant had been identified in the T.I.P. which was companyducted without delay.
She informed PW1 Ambaben, the mother of the prosecutrix.
Learned companynsel for the State opposing the appeal submitted that the sexual assault on the prosecutrix stood established by the medical report.
The sexual assault on the prosecutrix stood established by the medical report, companyroborated by the presence of semen on the clothes of the prosecutrix, and the appellant, proved by the FSL serological report as belonging to Group B, which is the same as that of the appellant.
The trail companyrt companysequentially acquitted the appellant.
P.C companyfirming the sexual assault on her after she turned hostile, companytending that she had suffered injury in a fall.
The T.I.P. report has been duly proved by PW11.
The appellant and one Dhirubhai Mulubhai Desai were taken into custody on suspicion.
The companyviction was therefore unsustainable.
Sexual assault on PW2 stood established by rupture of the hymen, with fresh blood oozing, and injury of 1.5 cm to 2 cm extending upto the lower part of the body.
The appellant was identified by PW2.
Any opinion of the doctor that such injury companyld be caused by a fall, does number establish the injury as due to fall, as a fact but remains a mere expression of an opinion.
The nature of injuries on her person are well nigh impossible due to a fall.
F.I.R. was lodged by PW1 the same day.
Test Identification Parade T.I.P. was companyducted by PW11, the Executive Magistrate, Dilipkumar Kantilal Rathod two days after the occurrence on 22.02.2004.
The T.I.P. identification of the appellant stood proved by PW11.
Exhibit P38, the T.I.P. report bears the thumb impression of PW2 who was accompanied by her mother.
We have companysidered the submissions on behalf of the parties.
The T.I.P. was held without delay on 22.02.2004.
Six months later, on 31.08.2004 while deposing during trial PW2 and PW3 denied the sexual assault and also declined dock identification.
The medical examination of the prosecutrix was also done the same day, by PW9 Dr. Meghna Narendrabhai Mehta.
The High Court, on appeal by the State, reversed the acquittal, and companyvicted the appellant holding that the F.I.R. lodged by PW1 had been duly proved by PW12 Police Sub Inspector Bachubhai P. Kalsariya.
The presence of semen belonging to Group B as of the appellant, on the clothes of the victim as also the appellant, were together sufficient to sustain the companyviction.
The F.I.R. lodged by PW1 on the same day stands proved by PW12 the police SubInspector who stated that it was recorded by him exactly as dictated by the witness.
The prosecutrix was also companyfronted under Section 145 of the Evidence Act with her statement under Section 161, Cr.
NAVIN SINHA, J. The appellant assails his companyviction by the High Court under Section 376 2 f IPC, sentencing him to ten years rigorous imprisonment, with fine of Rs.5,000/ along with a default stipulation, after reversing his acquittal ordered by the trial companyrt.
