MOHSIN Vs. STATE OF DELHI

JUDGEMENT

(1.) MOHSIN , the appellant, has been convicted under Section 376 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 10,000/ -, and in default of payment of fine undergo rigorous imprisonment for a period of six months.

(2.) RELYING on the site plan Ex.PW -16/B it is submitted by the amicus curiae appearing for the appellant that there were three families residing in the property consisting of two big rooms and the bathroom in question was visible from outside. It is accordingly urged that the appellant could not have committed rape of the prosecutrix in the bathroom without being noticed by anyone. Evidence of DW -1 Sohaib Anjum, brother of the appellant is relied upon. It is also submitted that the allegation of rape is motivated and has been deliberately foisted on the appellant and his family members because the complainant's family wanted the appellant to vacate the property in their joint possession. Another contention raised is that the rape was not actually committed and it is at best a case of attempt to rape.

(3.) PW -4 Ms. Noor Fatima has stated that she was residing in D.D.A. Flats, Inderlok, Delhi with her three children including the prosecutrix. Sohaib Anjum was also residing in the same house along with his family. The appellant is a younger brother of Sohaib Anjum and had started living with them about eight months prior to the incident. She identified the appellant in Court. She has stated that on 31st March, 2007 at about 7.45 PM, the prosecutrix told her that the appellant had called her in the bathroom on the pretext of giving her keys and when the prosecutrix went inside the bathroom, the appellant put his hand on her mouth. She has stated that the prosecutrix told her that thereafter the appellant undid the chain of his trousers and took off the underwear of the prosecutrix. She has further stated that thereafter the appellant had urinated at the urinary portion of the prosecutrix and she felt pain. PW -4 Noor Fatima has stated that on the next day, she called her brother and informed the matter to the police. She has stated that the prosecutrix had told her that earlier also the appellant had done the same act with her several times. On the basis of her statement Ex.PW -4/A, police registered an FIR. The prosecutrix was taken to Bara Hindu Rao Hospital where she was examined. In the cross -examination PW -4 has admitted that the bathroom was visible from outside the house and 14 persons including the prosecutrix were residing there. She has admitted that on the date of offence her husband was not present in the house and he comes back from work at about 8.30 PM. She has stated that after the incident, none of the family members of Sohaib Anjum were residing with them.