BABLOO Vs. STATE

JUDGEMENT

(1.) BY this appeal the Appellant challenges the judgment whereby he has been convicted for offences punishable under Section 366 and 376 IPC and sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs.1,000.00 and in default of payment of fine to further undergo Rigorous Imprisonment for six months and seven years and a fine of Rs.2000.00 and in default to further undergo Rigorous Imprisonment for one year respectively for the two offences.

(2.) AS per the prosecution case, on 5th June, 2000 at about 6 pm, the Appellant went to the house of the prosecutrix and told her that her father had met with an accident and on hearing the same, she accompanied the Appellant to the place where he confined her in a jhuggi. He expressed his desire to marry her but, the prosecutrix told him that she could not marry him, without the permission of her father. It is alleged that the Appellant committed rape on her in the jhuggi, where she was kept by him. It is further the case of the prosecution that the accused took the prosecutrix to the Zoo on 15 June, 2000 where her father, mother and aunt met them and got the Appellant apprehended by the police. In the meantime, the brother of the prosecutrix lodged FIR at PS Kalyan Puri about her missing on the 15th June, 2000. The prosecutrix and the Appellant were got medically examined. The statement of the prosecutrix was recorded under Section 164 CrPC before the learned Metropolitan Magistrate wherein she stated that the Appellant used to threaten her, confined her in the jhuggi and raped her every night, contrary to her wishes. When the Appellant took her to the zoo, her mother, father and police were already present there and the Appellant was apprehended by them. After completion of investigation, a charge sheet was filed. After recording the statement of the witnesses and examining the accused under Section 313 CrPC the learned Trial Court convicted him for the above mentioned offences and sentenced him as aforesaid.

(3.) IT is stated that the Appellant is related to the prosecutrix in as much as he is the son in law of her uncle and this fact has been admitted by PW2, the father of the prosecutrix, however, the prosecutrix denies knowledge thereof though in her statement recorded under Section 164 CrPC she has stated that the accused was son-in-law of her uncle. The CFSL result of the vaginal swab and the clothe of the prosecutrix do not connect the Appellant with the alleged offence as neither the blood group of the Appellant matched nor any report thereof has been received. Mere presence of semen stains do not show that the Appellant committed rape on her. It is alleged by the Appellant that since his younger brother had refused to marry the prosecutrix, he has been falsely implicated in the present case. As regards the age of the prosecutrix, it is contended that no documentary evidence has been produced. As per the oral evidence of her father PW2, prosecutrix is stated to be 14 years of age whereas prosecutrix in her statement under Section 164 CrPC gives her age as 15 years and in the court at the time of her deposition she withheld her age. The brother in the FIR lodged gives her age as 15 years. The radiological examination gives the age of the prosecutrix as more than 14 years and less than 16 years. In view of the error of two years, on either side in this regard, the Appellant is entitled to the benefit of doubt. Reliance is placed on Jaya Mala v Home Secretary, Govt of Jammu & Kashmir and Ors. 1982 SCC (Crl.) 502 and KulwantSingh v State (Govt. of NCT of Delhi) Crl. Appeal No. 715 of 2008 of Delhi High Court.