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2023 DIGILAW 437 (ALL)

Azam v. State of U. P.

2023-02-14

MAYANK KUMAR JAIN

body2023
JUDGMENT : 1. Feeling aggrieved with the impugned judgement dated 05.11.2019 passed by the Additional Session Judge/Special Judge (POCSO Act), Court No. 01, Gorakhpur in Special Session Trial No. 19/2014 (State of U.P. Vs Azam) arising out of Case Crime No. 652/2013, under Section 376 IPC and Section 5 (m)/6 of POCSO Act, Police Station-Khorabar, District-Gorakhpur whereby the accused-appellant was convicted under Section 376 I.P.C. and sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 25,000 and in case of default in depositing the amount of fine additional rigorous imprisonment for six months was also awarded, the present appeal has been preferred. 2. As per the case of the prosecution, Savitri Maurya, wife of Raj Kumar, submitted a report to the police station concerned that on 07.12.2013, she was in the market. Her daughter victim X, aged 11 years was at home. At around 8:00 pm, her neighbor Azam came to her house, shut the mouth of her daughter and took her to the adjacent under-construction house. He forcibly raped her. Upon hearing the alarm raised by the victim, villagers and her family members reached there, having torches in their hands and saw Azam fleeing away while wearing his pant. Her daughter narrated the whole incident when she returned from the market. 3. On the basis of the aforesaid written report, case crime No. 652 of 2013, under Sections 376 (2) (1) I.P.C. and Section 5 (m)/6 of POSCO Act, 2012 was registered against the accused-appellant. 4. The investigation was set into motion. After completing preliminary formalities, the investigating officer took the blood-stained underwear of the victim worn by her at the time of the incident into their possession and sent the same for forensic examination. The applicant Azam was apprehended and his underwear, which he was wearing at the time of the incident, was also taken into possession and sent for forensic examination. The recovery memo was prepared accordingly. 5. The victim was medically examined. Her statement under Section 164 Cr.P.C. was recorded. The site plan of the place of occurrence was prepared. The statements of the victim and other witnesses were recorded and after the conclusion of the investigation a charge sheet under Section 376 (2) (i) I.P.C. and 5 (m)/6 of POSCO Act against the appellant. 6. Charge under Section 376 I.P.C. and Section 5 (m)/6 POCSO Act was framed against the accused-appellant. The statements of the victim and other witnesses were recorded and after the conclusion of the investigation a charge sheet under Section 376 (2) (i) I.P.C. and 5 (m)/6 of POSCO Act against the appellant. 6. Charge under Section 376 I.P.C. and Section 5 (m)/6 POCSO Act was framed against the accused-appellant. He pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution produced three witnesses of fact as PW1 Savitri Maurya (informant), PW2 Km. Priya (sister of the victim), PW3 the victim and formal witnesses as PW4 Dr. Subhra Singh, PW5 Sri Prakash Yadav (Investigating Officer) and PW6 Head Constable Deena Nath Pal. 8. After the close of prosecution evidence, the statement under Section 313 Cr.P.C. of the accused-appellant was recorded. He denied the commission of the offence as alleged by the prosecution. He stated that the witnesses of fact have given false statements against him. The victim was tutored thus she deposed against him. On the basis of the medical evidence, the commission of rape was not confirmed. The charge sheet was filed on the basis of an unfair investigation. The witnesses are inimical to him. In his additional statement, he stated that the victim was in love with his younger brother, letters were exchanged between them and a demand for a gift was also made by the victim. His younger brother was not giving money to his family members. On the day of the incident, he saw both of them together. He scolded them and asked them not to meet again and due to that reason, he has been falsely implicated in the present case. 9. After weighing the evidence available on record and considering the rival contentions, the learned trial court convicted and sentenced the accused-appellant as referred to above. 10. I have heard Sri Mohd. Shoeb Khan, the learned counsel for the accused-appellant and Sri Om Prakash, learned A.G.A. for the State. I have carefully perused the record. 11. In the present appeal, on the basis of the facts and circumstances of the case, it is to be noted as to whether on 07.12.2013 at around 8 pm, the accused-appellant raped the daughter, aged about 11 years, of the informant. 12. Learned counsel for the appellant argued that the informant is not the eyewitness of the incident. 11. In the present appeal, on the basis of the facts and circumstances of the case, it is to be noted as to whether on 07.12.2013 at around 8 pm, the accused-appellant raped the daughter, aged about 11 years, of the informant. 12. Learned counsel for the appellant argued that the informant is not the eyewitness of the incident. In her first information report, she admitted that when she returned from the market, she was informed about the incident by the victim. PW2 Priya who happens to be the sister of the victim is also not the eyewitness of the incident. There are material contradictions in the testimonies of the informant, PW2 Priya and the victim, create serious doubt about the prosecution story. The sister of the victim, in her statement, made a contradictory version that when she reached the place of occurrence, the accused fled away from the spot while PW1, the informant, stated in her evidence that the accused was apprehended on the spot and he abused them. The medical evidence also does not corroborate the prosecution version. The torch, which the people who rushed towards the place of occurrence after hearing the alarm were allegedly carrying, was not taken into the possession by the investigating officer. He further submitted that the doctor opined that on the basis of swelling, she could not say definitely that the victim was sexually assaulted. No sperm was found on the private part or around it on the victim. Moreover, in the F.S.L. report, no sperm was found on the underwear of the victim. Therefore, the medical evidence does not corroborate the prosecution version. The prosecution failed to prove charge against the appellant and therefore the appellant is liable to be aquitted. The appeal should be allowed. 13. Per contra learned A.G.A. argued that the oral evidence and medical evidence available on record proved the charges against the accused-appellant. The age of victim was 13 years at the time of the incident and she was forcibly raped by the accused-appellant. On the basis of the medical examination, the radiologist determined the age of the victim at the time of the incident to be 14 years, therefore, the victim was minor at the time of the incident. The age of victim was 13 years at the time of the incident and she was forcibly raped by the accused-appellant. On the basis of the medical examination, the radiologist determined the age of the victim at the time of the incident to be 14 years, therefore, the victim was minor at the time of the incident. He also submitted that during a forensic examination, the sperm was found on the underwear of the accused-appellant which was worn by him at the time of the incident. He further submitted that there are no material contradictions in the statements of PW1 the informant, PW2 the sister of the victim and the victim herself. He further submitted that minor contradictions are bound to occur since the witnesses belong to a rural background and such types of contradictions do not adversely affect the case of the prosecution. He further submitted that the victim has supported the manner of crime committed by the accused-appellant in her statement recorded under Section 164 Cr.P.C. She also corroborated this statement during deposition before the trial Court. The victim by her evidence has corroborated the prosecution version that on the date and time of occurrence, the accused-appellant forcefully committed rape on her and the entire incident was narrated by her to her mother. 14. PW1 Savitri Maurya who is the informant of this case has stated in her evidence that the age of her daughter was around 11 year and 1/2 month. On 07.12.2013, at around 8:00 pm, when her daughter was alone in the house, the accused-appellant entered her house and after shutting her mouth, took her to the nearby under-construction house and raped her. On hearing the alarm, several people reached there and lightening the torch, they chased the appellant-accused and caught him. She was told about the incident when she returned from the market. She submitted a report to the police. The underwear which was worn by her daughter at the time of the incident was taken into possession before her. 15. PW2 Priya is the sister of the victim who has narrated the same version as stated by the informant. She submitted that when her sister did not return, she went to trace her and saw that accused-appellant was coming out from an under-construction house while wearing his pant. She reached the spot and found that her daughter was lying on the floor. She submitted that when her sister did not return, she went to trace her and saw that accused-appellant was coming out from an under-construction house while wearing his pant. She reached the spot and found that her daughter was lying on the floor. The whole incident was narrated by her sister stating that the appellant-accused committed rape on her and threatened if she would inform anyone, he will repeat the same act with her sister also. The underwear of her sister was soaked with blood. 16. PW3 victim has stated that the incident occurred on 07.12.2013 at around 08:00 pm when her mother had gone to the market, the accused-appellant called her but she refused. The accused-appellant told her that her mother was calling so she came out but did not find her mother there. The accused-appellant shut her mouth and took her to an under-construction house. He made her lay on the floor and forcefully committed rape on her. He penetrated his penis into her private parts. She was crying and felt severe pain. Upon hearing her cries, her sister came there. The accused-appellant ran from the spot. Her sister saw the accused-appellant in the torch light. Her underwear was blood stained. The entire incident was narrated by her to her mother. She was medically examined. She knows the accused appellant very well, him being her neighbour. She proved the statement given by her before the Magistrate under section 164 Cr.P.C. 17. PW4 Dr. Subhra Singh stated in her statement that on 08.12.2013 in the capacity of Senior Consultant District Women Hospital, Gorakhpur, at 2.30 pm, she examined the victim which was brought by C.P. No. 1223, Bhagwati Verma, PS. Khorabar, District Gorakhpur. The height of the victim was 137 cm., Weight 30 kg, teeth 13/13, thin built, mentally alert, breast not developed, axillary/pubic hair not present. No sign of injury on external body parts, vagina does not admit tip of finger. Slides made by vaginal swab and sent for pathological examination. No tear seen. Slide abrasion in forchette seen. In supplementary report few R.B.C. seen. No spermatozoa was found. On the basis of the injury on the private part of the victim, it is possible that she was raped. 18. PW5 Inspector Sri Prakash Yadav stated that he received the investigation and after preliminary formalities, took the statement of the informant, the victim and the witnesses. In supplementary report few R.B.C. seen. No spermatozoa was found. On the basis of the injury on the private part of the victim, it is possible that she was raped. 18. PW5 Inspector Sri Prakash Yadav stated that he received the investigation and after preliminary formalities, took the statement of the informant, the victim and the witnesses. He prepared the site plan. The undergarments worn by the victim and the accused at the time of the incident were taken into possession and were sent for chemical examination. The victim was sent for medical examination. Her statement under Section 164 Cr.P.C. was recorded and after the conclusion of the investigation, he submitted charge sheet against the accused-appellant. 19. PW6 is the Head Constable Deena Nath Pal who has stated that on the basis of written report submitted by the informant Savitri Maurya, he prepared the F.I.R. No. 379 of 2013 on 07.12.2013 at 22.45 hour which was registered as Case Crime No. 652 of 2013, under Sections 376 (2) (1) I.P.C. and 5 (m)/6 POCSO Act at PS Khorabar, District Gorakhpur against the applicant. This witness has proved the first information report as Ex. Ka 11. The endorsement of the F.I.R. was made in the general diary of the concerned police station at Rapat No. 46 at 22.45 hour which is exhibited as Ex. Ka 12. 20. Learned counsel for the appellant vehemently argued that there are material contradictions in the evidence of PW1 and PW2. The informant PW1 in her statement stated that at the time of occurrence the victim was all alone at her house and the appellant was apprehended by the villagers on the spot while in her cross-examination she stated that the accused-appellant was apprehended at her house on the date of occurrence and she herself apprehended the accused-appellant. Learned counsel for the appellant referred the statement of PW2 Km. Priya, the sister of the victim that when she rushed towards the place of occurrence, her sister was lying alone there and the accused-appellant was not present there. Learned counsel for the appellant argued that PW1 Savitri Maurya and PW2 are not the eyewitnesses of the incident, therefore, their testimonies cannot be relied upon. 21. Priya, the sister of the victim that when she rushed towards the place of occurrence, her sister was lying alone there and the accused-appellant was not present there. Learned counsel for the appellant argued that PW1 Savitri Maurya and PW2 are not the eyewitnesses of the incident, therefore, their testimonies cannot be relied upon. 21. So far as the argument of learned counsel for the appellant is concerned about the contradictions in the evidence of witnesses of fact, it is worth to be noted that the perusal of record goes to show that examination-in-chief of PW1 Savitri Maurya was recorded on 04.08.2014 and her cross-examination was recorded on 15.10.2014. The examination-in-chief of PW2 Km. Priya was recorded on 06.11.2014 while her cross-examination was recorded on 24.11.2014. Likewise the examination-in-chief of the victim was recorded on 03.01.2015 and since the cross-examination was not concluded, therefore, her further cross-examination was recorded on 01.06.2015. 22. The Hon'ble Apex Court in the case of Sachin Kumar Singhraha v. State of M.P., (2019) 3 SCC (Cri) 575 : has held as under:- "12. The Court will have to evaluate the evidence before it keeping in mind the rustic nature of the depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole. In this view of the matter, in our considered opinion, the evidence of PW 5 fully supports the evidence of PW 4 and the case of the prosecution." 23. The Hon'ble Apex Court in the case of Rohtas v. State of Haryana, (2020) 1 SCC (Cri) 47 has held as under:- "26. In a recent decision in Dilawar Singh v. State of Haryana, (2015) 1 SCC 737 : (2015) 1 SCC (Cri) 759, the Court restated that while analysing the evidence of eye witnesses, it must be borne in mind that there is bound to be variations and difference in the behaviour of the witnesses or their reactions from situation to situation and individual to individual. There cannot be uniformity in the reaction of witnesses. There cannot be uniformity in the reaction of witnesses. The Court must not decipher the evidence on unrealistic basis. There can be no hard-and-fast rule about the uniformity in human reaction." 24. The Hon'ble Apex Court in the case of Khurshid Ahmed v. State of J&K, (2018) 3 SCC (Cri) 61 has held as under- "35. When analysing the evidence available on record, the court should not adopt hyper technical approach but should look at the broader probabilities of the case. Basing on the minor contradictions, the court should not reject the evidence in its entirety. Sometimes, even in the evidence of truthful witness, there may appear certain contradictions basing on their capacity to remember and reproduce the minute details. Particularly in the criminal cases, from the date of incident till the day they give evidence in the court, there may be gap of years. Hence, the courts have to take all these aspects into consideration and weigh the evidence. The discrepancies and contradictions which do not go to the root of the matter, credence shall not be given to them. In any event, the paramount consideration of the court must be to do substantial justice." 25. The Hon'ble Apex Court in the case of Rakesh v. State of U.P., (2021) 3 SCC (Cri) 149 has held as under:- "14. One is required to consider the entire evidence as a whole with the other evidence on record. Mere one sentence here or there and that too to the question asked by the defence in the cross-examination cannot be considered stand alone." 26. In view of the above observations made by the Hon'ble Apex Court, in the case in hand it is relevant to note that the victim in her statement under Section 164 Cr.P.C., which she proved as Ex. KA3, corroborated the case of the prosecution. Further, in her deposition before the court, the victim was consistent in her evidence about the prosecution story. There are no material contradictions in the statements of the victim and other witnesses of fact which can adversely affect the case of the prosecution. The evidence of the witnesses of fact is found to be trustworthy. 27. Further, in her deposition before the court, the victim was consistent in her evidence about the prosecution story. There are no material contradictions in the statements of the victim and other witnesses of fact which can adversely affect the case of the prosecution. The evidence of the witnesses of fact is found to be trustworthy. 27. So far as the argument of learned counsel for the appellant that the victim stated in her statement that at the time of occurrence, the appellant made her lay down on the floor but no injury was found on her body at the time of her medical examination is concerned, it is pertinent to note that the victim in her testimony has corroborated the facts of the prosecution version in entirety. Therefore, mere fact that she stated that the accused-appellant compelled her to lay down but she did not suffer any injury, does not create any doubt about her testimony. 28. The statements of PW1 Savitri Maurya, PW2 Km. Priya and PW3 victim made before the court are reliable and inspire confidence All the three witnesses of fact have stated that the underwear of the victim was soaked as a result incident, which was handed over to the investigating officer. The informant in her testimony also proved the site plan prepared by the investigating officer and all the three witnesses of fact categorically denied that the victim had a love affair with the brother of the appellant Azad and the victim was caught by the accused-appellant and for that reason the appellant had been falsely implicated. 29. So far as the letters which were filed before the trial court on behalf of the appellant in his defence, claiming that victim was in love with his younger brother are concerned, suffice to mention here that these letters were not proved by the defence by any cogent evidence. It appears that during trial no effort was made by the appellant to examine the handwriting of the victim by an expert which could support the defence taken by the appellant. Therefore, mere filing of the letters does not corroborate the defence taken by the appellant. 30. Learned counsel for the appellant vehemently argued that deposition of the victim did not find any corroboration with the deposition of PW1 and PW2. Therefore, mere filing of the letters does not corroborate the defence taken by the appellant. 30. Learned counsel for the appellant vehemently argued that deposition of the victim did not find any corroboration with the deposition of PW1 and PW2. Since these two witnesses are not the eyewitnesses, therefore the sole testimony of the victim cannot be relied upon. 31. Considering this argument, it is relevant to mention here that the victim had stated that the accused took her to the under-construction house and after shutting her mouth disrobed her and committed rape upon her. The accused-appellant penetrated his private parts into the vagina of the victim. The victim deposed in categorical terms regarding rape committed upon her by the accused-appellant. There is no contradiction in the examination-in-chief and the cross examination of the victim. Her evidence inspire confidence and has a ring of truth. Moreover, the statement of the informant and the sister of the victim also corroborate the presence of the accused-appellant at the place of occurrence, since they have stated that they saw the accused-appellant fleeing from the place of occurrence while wearing his pant. PW-2 Priya specifically stated that she found her sister in a disrobed condition, therefore, the evidence of the victim and her sister is consistent with the facts of the prosecution and their evidence is trustworthy. 32. Learned counsel for the accused-appellant submitted that since there are contradictions in the statements of the victim and the other witnesses of fact, therefore, the conviction cannot be recorded against the accused-appellant on solitary evidence of the victim. 33. The Hon'ble Apex Court in Rai Sandeep Vs. State, (NCT of Delhi) (2012) 8 SCC 21 has eleborated the meaning of ''Sterling Witness' as:- "15. In our considered opinion, the ''sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ''sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged." 34. On importance given to the testimony of the prosecutrix in rape cases, Hon'ble Supreme Court in Hemraj Vs. State of Haryana, 2014 (2) SCC 395 reminded the Court of their duties in carefully scrutinizing the same in following words:- "6. In a case involving charge of rape the evidence of the prosecutrix is most vital. If it is found credible; if it inspires total confidence, it can be relied upon even sans corroboration. The court may, however, if it is hesitant to place implicit reliance on it, look into other evidence to lend assurance to it short of corroboration required in the case of an accomplice. Such weight is given to the prosecutrix's evidence because her evidence is on par with the evidence of an injured witness which seldom fails to inspire confidence. Having placed the prosecutrix's evidence on such a high pedestal, it is the duty of the court to scrutinize it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment. The court must, therefore, with its rich experience evaluate such evidence with care and circumspection and only after its conscience is satisfied about its creditworthiness rely upon it." 35. In Sadashiv Ramrao Hadbe Vs. State of Maharashtra, (2006) 10 SCC 92 the Hon'ble Apex Court observed that:- "8. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen." 36. The Hon'ble Apex Court in State of Punjab Vs. Gurmeet Singh, (1996) 2 SCC 384 has held that minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be taken into consideration if the statement of the prosecutrix is otherwise reliable. The Hon'ble Apex Court in State of Punjab Vs. Gurmeet Singh, (1996) 2 SCC 384 has held that minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be taken into consideration if the statement of the prosecutrix is otherwise reliable. The Hon'ble Apex Court observed as:- "The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances." 37. The Hon'ble Apex Court in State of H.P. v. Raghubir Singh (1993) 2 SCC 622 , has held that the evidence of prosecutrix does not require corroboration if it inspires confidence. The Hon'ble Apex Court observed as:- "this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity." 38. On the basis of the observation made by the Hon'ble Apex Court, it is to be noted that the victim has remained consistent in her statement throughout before the trial Court and also when her statement under 164 Cr.P.C. was recorded. 39. Learned counsel for the appellant argued that the ocular evidence and the medical evidence is not consistent with each other. PW-4 Dr. Shubhra Singh observed during the medical examination of the prosecutrix that no spermatozoa was found and no definite opinion about sexual assault was also given. 40. Considering the argument of the learned counsel for the appellant it is to be noted here that the victim by her reliable and trustworthy evidence has proved the incident happened with her. She specifically stated that the appellant forcibly raped her. PW-4 Dr. Shubhra Singh found abrasion on the private part of the victim and also opined that in view of the aforesaid abrasions there was a possibility of rape of the victim. She specifically stated that the appellant forcibly raped her. PW-4 Dr. Shubhra Singh found abrasion on the private part of the victim and also opined that in view of the aforesaid abrasions there was a possibility of rape of the victim. Moreover, the FSL report exhibit Ka-13 also corroborates the incident as human semen was found on the underwear of the appellant. Therefore, it cannot be observed that there is inconsistency between the ocular and the medical evidence. 41. On the basis of the above discussions, the observation made by the Hon'ble Apex Court as referred and on the appreciation of the documentary and oral evidence available on record, it is concluded that on 07.12.2013 at around 8.00 pm the appellant forcibly raped the victim. The evidence of PW-1 informant, PW-2 the sister of the victim and above all PW-3 the victim are found to be trustworthy and their evidence inspire confidence. A conclusion is drawn that the witnesses of fact have fully corroborated the case of prosecution. Therefore, the prosecution has succeeded to bring home the charge framed against the appellant. 42. The learned trial Court appreciated the documentary and oral evidence available on record in a rightful manner and arrived at a conclusion that appellant-accused committed the offence and recorded the conviction of the appellant-accused. 43. In view of the above, the judgment and the order of sentence passed by the learned trial Court is liable to be affirmed and criminal appeal is liable to be dismissed. Order 44. The Criminal Appeal is accordingly dismissed. The judgment and order dated 05.11.2019 passed by the learned trial Court in Special Session Trial No. 19/2014 (State of U.P. Vs. Azam) arising out of Case Crime No. 652 / 2013, under Section 376 IPC and Section 5 (m)/6 of POCSO Act, Police Station-Khorabar, District-Gorakhpur is hereby affirmed. 45. Let a certified copy of the judgment/order along with lower court record be sent to the court concerned for necessary compliance forthwith.