MOHIT Vs. STATE

JUDGEMENT

(1.) BY these appeals the Appellants challenge the common judgment dated 28th July, 2010 whereby the Appellant Mohit has been convicted for offence under Section 376 IPC and Surjeet and Mohan have been convicted for offence under Section 376 IPC read with Section 109 IPC and the order on sentence dated 30th July, 2010 whereby Mohit has been directed to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 2,000/- and in default of payment of fine to further undergo simple imprisonment for a period of three months, and the Appellants Surjeet and Mohan are directed to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo simple imprisonment for a period of one month.

(2.) LEARNED counsel for the Appellants Mohan and Surjeet states that they have not been named in the FIR and have been falsely implicated by introducing their names in the statement recorded under Section 164 Cr.P.C. There are material contradictions in the testimony of PW-1 the prosecutrix. Forced rape on the prosecutrix is ruled out, as there is no resistance or mark of injury. Further in her statement, PW-1 does not say that she resisted the act. Thus, she was a consenting party. The defence of the Appellants Surjeet and Mohan have not been taken into consideration. DW-4 has deposed that he was having the keys of the house and the house was locked. He has further stated that there is a single key of tenanted room which is retained by him. He further denied that he had any friendship with the Appellants Mohit, Surjeet and Mohan. He denied having given the keys either to Vinita, the daughter of landlady Asha or to anyone. Thus, place of occurrence is doubtful. The Appellants had been falsely implicated. The friendship, if any, was between Mohit and PW-1. Reliance is placed on Abbas Ahmed Choudhary Vs. State of Assam 2010 (3) Chandigarh Crl. Cases (SC) 52 to contend that the prosecution has to prove its case beyond reasonable doubt and there can be no presumption that the prosecutrix would always tell the entire story truthfully.

(3.) I have heard learned counsel for the parties. PW-1 the prosecutrix alleged that in the year 2008 she was working for an export goods company from her house. On 28th June, 2008 at about 11.00 AM while she was alone at home and doing the work of factory, Appellant Surjeet and Mohan @ Golu, whom she knew earlier, came and told her that somebody was beating her brother. She accompanied them in the back gali but did not find her brother there. However, Appellant Mohit, who was also known to her caught hold of her hand and took her to the house of Asha Aunti, who lives in front of the house of Mohit. Mohit took her to the room on the second floor of the house and bolted the same from inside. Appellants Surjeet and Mohan bolted the same from outside. Thereafter, Appellant Mohit forcibly undressed her and himself and committed rape upon her on the floor of the room. Mohit gagged her mouth with a cloth and asked her to ask her mother to get her married with him. After about two hours, her mother came, looking for her and opened the lock of the room. After the incident her mother sent her to the house of her aunt Smt. Ramshree at Narela. Her father was in the village at that time. The prosecutrix remained at the house of her aunt for three-four days. The relatives advised her not to disclose the incident to anybody. However, some other relatives stated that she should inform the Police. Thus, after 6-7 days of the incident, the prosecutrix along with her mother and grand-mother went to the Police Station, Model Town and got the FIR registered.