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12. Learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove its allegation against the accused beyond reasonable doubt. According to the learned counsel, at the time of the alleged incident, the victim PW9 was a major and even if the incident is admitted as true, the other facts and circumstances and evidence would show that the same has taken place with the consent of the victim since PW9 has no case that she was forcefully subjected to sexual intercourse and the medical evidence does not suggest any forceable CRL.A.NO.108 of 2007 :-15-:
sexual assault on the victim. In order to substantiate the above contention, the learned counsel took me through the deposition of Pws.1,2,9 and 10 and Pws.7 and 8 and also the documents Exts.P5,P7,P12 and P8. Thus, according to the learned counsel, even the documents, which came into existence before the registration of the crime, show that the victim is not a minor. It is also the submission of the learned counsel that the available evidence including the depositions of PW11 and PW10 are not sufficient to prove that the victim was a minor at the time of the alleged incident. On the other hand, materials referred to above would show that even on the date of the alleged incident, the victim is a major. It is the further submission of the learned counsel that the medical evidence consists of the depositions of Pws.7,8 and 14 and the documentary evidence, such as Exts.P5 and P12 wound certificate are not sufficient to hold that the accused committed sexual intercourse forcefully on the victim since there was no mark of resistance or violence. Thus, according to the learned counsel for the appellant, the findings of the court below are factually and legally incorrect and the same is liable to be set aside. In support of the CRL.A.NO.108 of 2007 :-16-:
also stated " I have examined the body and private parts of the victim with the help of staff nurse Vijayalekshmi and Dr.Michael. In the case of forcible intercourse, there is possibility of injury in the private parts. (Q) Yes(A)." It is relevant to note that in Ext.P12 wound certificate also, it is specifically noted that no injuries or nail marks anywhere on the body. It was also noticed that there was no local injury. In this juncture, it is pertinent to note that Ext.P12 wound certificate is prepared on the basis of the body examination of PW9, after registration of the crime and when the victim was taken to the S.A.T. Hospital by the Police. So it was up to the Police to get proper examination and treatment of the victim and to bring the exact facts, even if there is any mistake or omission on the part of PW7 who examined the victim on the first occasion. But, in the present case, the wound certificates Exts.P5 and P12 on all vital aspects are same and there is no contradiction. The age of the victim in Ext.P12 is shown as 17. Thus, the medical evidence involved in this case does not suggest any forceful intercourse on the victim.
before the court and has a tendency to say falsehood. Thus, the evidence of PW9/the victim and the medical evidence are not sufficient or supported the case of the prosecution that the accused has committed forceable sexual intercourse on the victim.
25. In the light of the above facts and evidence and materials referred to above, according to me, the prosecution has miserably failed to prove beyond reasonable doubt that the accused committed forceful intercourse on the victim against her will and without her consent. Thus, considering the entire evidence and materials on record and the facts and circumstances involved in the case, especially in the light of the above discussion, I am of the view that the learned Judge of the trial court is not justified in his finding and convicting the appellant/accused for the offence under Section 376 of I.P.C. since the prosecution has miserably failed to prove the above allegation and the offence under Section 376 of I.P.C. against the appellant beyond reasonable doubt and I am unable to approve the conviction recorded by the learned Judge against the appellant and accordingly, the same is set aside.