MANOJ KUMAR Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) BY the present appeal, the Appellant lays challenge to the judgment dated 17th November, 2001 convicting him for offence under Sections 342/363/376 read with Section 34 IPC and the order dated 1st December, 2001 whereby he was directed to undergo Rigorous Imprisonment for a period of three months and a fine of Rs.100/- for offence under Section 342 IPC and in default of payment of fine to further undergo Simple Imprisonment for a period of 7 days, Rigorous Imprisonment for a period of two years and a fine of Rs.500/- for offence under Section 363 IPC and in default of payment of fine to further undergo Simple Imprisonment for a period of one month and Rigorous Imprisonment for a period seven years and a fine of Rs. 5,000/- for commission of offence punishable under Section 376 IPC and in default of payment of fine, to further undergo Simple Imprisonment for a period of six months.

(2.) LEARNED counsel for the Appellant contends that the allegation of rape is against Brijesh, who, though taken into police custody as per the statement of the witness, was permitted to go and thereafter was declared a proclaimed offender. As regards the Appellant, the prosecutrix clearly stated that after the Appellant tried to rape her, she felt giddy and did not know what happened thereafter and when she regained consciousness, she saw Appellant was going outside after wearing his clothes and opening the shutter. Thus there is no allegation that the Appellant committed rape on her. The testimonies of the witnesses are full of contradictions. As per the prosecutrix, while taking her away from her house, the Appellant and his co- accused closed the door from outside however, all the other witnesses have stated that the door was opened and they found the prosecutrix missing. There is no evidence of forced entry into the house, thus, the allegations are concocted in nature. The prosecutrix has on the one hand stated that she was sleeping in the room with her brother however, in the cross-examination she admitted that her parents were also sleeping in the said room. The prosecutrix denied that her house consists of only one room however, the Investigating Officer has clarified that the house of the prosecutrix was a one room house. It is the case of the prosecutrix that immediately on the offence being committed, neighbours and relatives collected but since she was not in a position, she said that nothing had happened, however, still each of the witnesses said that the police went to the house of Brijesh and took him along with him. It is thus apparent that immediately after the incident there was no mention of the Appellant. The Appellant has been falsely implicated on the next day at the instance of the family members because the family members were against the love affair of the Appellant with the prosecutrix. PW2 the prosecutrix completely exonerates the Appellant in her statement made in the examination-in-chief and even in cross-examination states that she had not told to the police that Manoj removed his clothes and laid upon her. Further the allegation of kidnapping cannot be attributed to the Appellant as it is the case of the prosecutrix that she was taken away by Brijesh and other boy.

(3.) I have heard learned counsel for the parties. PW2 the prosecutrix in her statement stated that on the night of 26 th November, 1998 when she was sleeping with her younger brother in her house, at about 12.30 a.m. Brijesh a proclaimed offender whom she could identify along with one another boy not known to her entered her house. Brijesh kept one handkerchief on her mouth and took her outside the house. Thereafter they bolted the room from outside. At that time, her younger brother was sleeping. Brijesh and the other boy took her to the shop of the Appellant. The shop was already lying open and the Appellant Manoj was present in the shop at that time. Brijesh, Manoj and other boy forcibly dragged her inside the shop and closed the shutter of the shop. The third boy, whose name she did not know, went out of the shop in order to keep a watch. Thereafter Brijesh tried to rape her and despite her protest he committed rape on her. Thereafter the Appellant tried to rape her. She felt giddy and did not know what happened thereafter. Before she felt giddy, the Appellant had removed his clothes and lay upon her. When she gained consciousness, she saw the Appellant going outside after wearing his clothes and opening the shutter of the shop slowly. The voice of the neighbours was coming. At that time none of her family members was present. While going, the Appellant threatened the prosecutrix that in case she told the true facts, he would kill her and her brother. Her uncle came and took her out of the shop. Her clothes were wet. Her uncle informed the police and the police came on the spot. However by that time the accused had already managed to escape. Since the prosecutrix was frightened at that time she told the police that no untoward incident had taken place with her. When her aunt came and enquired from her, she told the true facts. Next day she went to the police station and a report was lodged by her uncle. She was made to sign a blank paper and she did not know what was written on it. She identified her signatures on the carbon copy of the FIR. She gave her clothes to the police which were seized and her grandmother took her to the hospital along with police personnel where she was medically examined. The statement of the prosecutrix was also recorded before the Magistrate being Ex. PW2/C.