ANTHONY Vs. STATE NCT GOVT OF DELHI

JUDGEMENT

(1.) THE present appeal arises out of the judgment of conviction dated 14.9.2006 and order on sentence dated 16.9.2006, whereunder the appellant was convicted under Sections 363/366/376 IPC S.C.No. 160/05 arising out of FIR No. 44/2004 registered with PS Gulabi Bagh, Delhi and sentenced under section 363 IPC to undergo rigorous imprisonment for a period of 3 years and pay fine of '1,000/-, in default thereof, to undergo rigorous imprisonment for a period of 1 month; under section 366 IPC to undergo rigorous imprisonment for a period of 5 years and pay fine of '1,500/-, in default thereof, to undergo rigorous imprisonment for a period of 2 months; and under Section 376 IPC to undergo rigorous imprisonment for a period of 7 years and pay fine of '2,500/-, in default thereof, to undergo rigorous imprisonment for a period of 3 months. All the sentences were directed to run concurrently and the benefit of Section 428 Cr.P.C. was given to the appellant for the period already undergone by him during the trial.

(2.) THE incident, subject matter of the aforesaid judgment, occurred on 24.02.2004 at 1 am, when the mother of the prosecutrix got DD no. 3 registered at police post Andha Mughal of PS Gulabi Bagh stating that her daughter, the prosecutrix was missing from 23.02.2004 since 2 pm and that she did not return home from her tuition class. On the same day, at 11.30 pm, the prosecutrix was dropped by the appellant at Police Post: Andha Mughal. After a gap of one week from the date of the incident, on 1.3.2004, the prosecutrix, accompanied by her mother, came to the police station and gave a statement (Ex. PW-2/A) that on 23.2.2004 at about 2 pm, the appellant, who was her neighbour, duped her into sitting on his scooter, on the pretext of dropping her at her tuition place. THEreafter, as per the prosecutrix, he took her to various unknown places, committed rape on her and threatened her that he would kill her, if she disclosed what had happened to anyone. On the next evening, he brought the prosecutrix back to police post Andha Mughal. Based on the statement of the prosecutrix, FIR No.44/2004 was registered with PS Gulabi Bagh. Subsequently, the appellant was arrested and both the prosecutrix and the appellant were medically examined and their swab slides and clothes were sent to the FSL for examination.

(3.) COUNSEL for the appellant states that at the time of the incident, the appellant was a young man of the age of 23 years. He submits that the appellant and the prosecutrix are both Christians and were neighbours. He suggests that the possibility of the prosecutrix having consented to sexual intercourse cannot be ruled out entirely, especially since even the learned ASJ had found force in this submission, based on the conduct of the prosecutrix in not raising an alarm and not making a complaint to anyone during the period she was with the appellant. Inspite of this finding, having regard to the age of the prosecutrix, which at the time of the incident was 14 years and 3 months, the appellant was held guilty of rape. He further submits that even the conduct of the appellant in bringing the prosecutrix back to the police post Andha Mughal suggests that the prosecutrix had willingly gone with him. He has also drawn the attention of this court to the MLC report of the prosecutrix dated 1.3.2004, to submit that the same indicates that there were no marks of external injury on the body of the prosecutrix and that she had an old torn hymen.