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2010 (1) TMI 1285 - SC - Indian LawsPetition Challenging the order of HC reversing the judgment of Additional Sessions Judge for Aquittal - convicted appellant for the offence of rape punishable u/s 376 of IPC - The accused feeling aggrieved filled appeal before us - HELD THAT:- In the first information report and also in the evidence of PW-1, it has come on record that Victim could not cry out for help since her mouth was gagged by the accused. It has also come in the evidence that the victim was aged about 40 years and the accused persons were young and aged about 20 years and, therefore, she was not in a position of equal strength so as to resist the appellants. Even in the absence of any injuries on the person of the victim, in our view, with the other evidence on record, the prosecution is able to establish that the offence was committed. the blood stained clothes which were said to have been handed over to the Officer-in-Charge at the Police Station by the husband of the victim were not sent for chemical examination and, therefore, the corroboration with which such evidence could offer was absent. In our view, the failure of the investigating agency cannot be a ground to discredit the testimony of the victim. The victim had no control over the investigating agency and the negligence, if any, of the investigating officer could not affect the credibility of the statement of PW-1 - the victim. we are satisfied that on the basis of the evidence on record, the conviction of the appellant can be sustained. the doctor who has been examined as PW-2 has found that the victim PW-1 was used to sexual intercourse and as such absence of injury on the private parts of the victim may not be very significant. PW-1 was also used to sexual intercourse. The evidence of the victim has been corroborated by the evidence of PWs.2 and 3, the two post occurrence witnesses, as well as by the FIR which was lodged without any delay. Therefore, it is difficult to differ from the findings of the High Court. In the present case, the High Court on re-appreciation of evidence on record has differed with the findings of the Sessions Court on the innocence of the accused and has found him guilty of the charges leveled against him. The High Court after evaluating the manner in which the evidence and other materials on record has been appreciated as well as the conclusions arrived at by the Sessions Court, has come to the conclusion that the findings of the Sessions Court are perverse and has resulted in miscarriage of justice has re-appreciated the evidence and materials on record and has found that the appellant is guilty of the offence alleged. Therefore, in our view, the decision on which reliance has been placed by learned Counsel for the appellant would not assist him in any manner whatsoever. The result of the aforesaid discussion leads to only one conclusion that the accused committed forcible rape on the victim on the intervening night of 12/13th August, 1989, as alleged by her, and his conviction by the High Court is quite justified being based on evidence on record. It is, therefore, confirmed. We, therefore, find no merit in this appeal and the appeal is, accordingly, dismissed.
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