ASHOK KUMAR Vs. STATE OF DELHI

JUDGEMENT

(1.) The Appellant Ashok Kumar has been convicted for offences punishable under Sections 451/376 IPC on the charge that on 2nd July, 1996, he committed house trespass in order to commit the rape on the prosecutrix aged about 26 years who is mentally challenged, when she was alone at home. The prosecutrix was sought to be examined by the learned Metropolitan Magistrate for recording her statement under Section 164 of CrPC and by the learned Additional Sessions Judge during the trial, however, her statement could not be recorded as both were of the opinion that she was not mentally fit and in a position to depose about the incident.

(2.) Briefly, the prosecution case is that on 2nd July, 1996 at about 8:30 pm, complainant Sita Ram came to the Police Post along with his sister, the prosecutrix and accused Ashok. While handing over the accused Ashok to the police he got recorded his statement that on the aforesaid date at about 5 pm, his mother and younger sister Shakuntala had gone out of the house for household work. At about 6:30 pm, he had also gone out to purchase Bidi Machis leaving behind his mentally retarded sister, the prosecutrix aged about 25 years, in the house and while going he had also bolted the house from outside. At about 7 pm when he came back to his house, he noticed that the kundi of the door was open from outside and the door was closed from inside. When he knocked the door, accused Ashok Kumar, who used to live in the other gali near his house, whom he knew earlier, opened the kundi of the door from inside and after opening the door tried to run away after pushing him. That on suspicion he caught hold of him and took him inside. When he went inside the house along with the accused, he noticed that his sister was lying on a cot and cord of her petticoat was open and after seeing him, his sister started weeping and while pointing towards the accused, stated that the accused had raped her. He called his brother Kishan Lal and along with his brother and other persons brought the accused to the police station and prayed for legal action against the accused. On the statement of Sita Ram, a case FIR No.389/96 under Secs. 376/454 IPC was registered at PS Dabri. The statement of the prosecutrix could not be recorded as stated above. After completion of investigation, a charge sheet was filed and the appellant was convicted for offences punishable under Section 376/451 IPC and awarded a sentence of Rigorous Imprisonment for seven years and a fine of '1,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for two months for offence under Sec. 376 IPC. For offence under Sec.451 IPC a sentence of Rigorous Imprisonment for one year and a fine of '1,000/- and in default of payment of fine to further undergo a sentence of Rigorous Imprisonment for one month was awarded.

(3.) Learned counsel for the Appellant contends that there are material contradictions in the statements of the witnesses; there are contradictions inter se the testimony of the two brothers of the prosecutrix i.e. PW2 Sitaram and PW3 Kishanlal and also in their statements recorded before the police and in the court. As per their testimony before Court PW2 Sitaram saw the Appellant outside the house which is a thoroughfare whereas in his statement recorded by the police on the basis which the FIR was registered, he stated that the Appellant was found inside the house. The case of the prosecution does not travel beyond the realm of suspicion. PW3 is not only unaware of the facts of the case as he came after PW2 called him, but has also made material improvements in his testimony in the court. His statement that his sister on inquiry told him (had spoken by words and not by gestures) about the offence having been committed by the Appellant is a material improvement and can also not be believed in view of the fact that both the learned Addl. Sessions Judge as also the learned Metropolitan Magistrate found her unfit to state facts coherently. Not only incriminating facts were not put to the Appellant in his statement under Section 313 CrPC, in fact wrong questions have been put to him and thus, conviction cannot be sustained. In his statement recorded under Section 313 CrPC, no question qua PW4 the prosecutrix has been put, hence these circumstances cannot be used against the Appellant. Reliance is placed on Ranvir Yadav v. State of Bihar, 2009 CrLJ 2962.