MANOJ KUMAR Vs. THE STATE (GOVT. OF NCT)

JUDGEMENT

(1.) THE present appeal by Mr. Manoj Kumar is directed against judgment dated 3rd January, 2009 passed by the learned Additional Session Judge convicting him for offences under Sections 376 and 506 of the Indian Penal Code, 1860 (hereinafter referred to as the Code, for short). By order dated 7th January, 2009, the appellant has been sentenced under Section 376 to undergo rigorous imprisonment of 7 years with fine of Rs. 5,000/ - with the stipulation that in case of default in payment of fine, the appellant will undergo one year rigorous imprisonment. For offence under Section 506 of the Code, the appellant has been sentenced to one year rigorous imprisonment.

(2.) THE allegation against the appellant was that he was a neighbour of the prosecutrix and he had committed rape at about 11 p.m. on 28th April, 2005, while she was sleeping along with her two younger sisters on the roof of their house. After committing rape, the appellant ran away and absconded and came back to his house on 1st May, 2005, when father of the prosecutrix got in touch with the police and an FIR was registered and the appellant was arrested.

(3.) PROSECUTRIX PW -3 in her evidence has stated that the appellant was their neighbour and residing in an adjacent house. About 1 1/2 years back, the appellant had sent his wife and children to his native village and was living alone and he had an evil eye and used to make gestures after seeing the prosecutrix. On 28th April, 2005, in the morning, the appellant had made gestures by twinkling his eyes when the prosecutrix was standing in the courtyard. The prosecutrix informed her mother, who asked her to ignore the incident. On 28th April, 2005, the prosecutrix after meals went to the roof of their house along with two younger sisters to sleep. At night she found that the appellant was sleeping next to her and he started pressing the hand of the prosecutrix. The prosecutrix tried to call her mother but the appellant gagged her mouth with a blanket and threatened her that if she tried to make noise, he would strangulate her. The appellant forcibly had sexual intercourse with her. Thereafter, the prosecutrix started weeping loudly and the appellant jumped and went to the roof of his house. On hearing the prosecutrix, her parents came to the roof and she narrated the whole incident. The appellant went missing and could not be seen till 1st May, 2005. On 1st May, 2005, father of the prosecutrix called the police and the accused -appellant was apprehended. On 4th May, 2005, statement of prosecutrix under Section 164 of the Code was recorded by the learned Metropolitan Magistrate, which is Exhibit PW -3/B. The prosecutrix was also medically examined in Sanjay Gandhi Memorial Hospital, Delhi and her medical report is Exhibit PW -9/A. Her under garments Exhibit P -1 were also seized and sent to Forensic Science Laboratory for examination.