DEEPAK Vs. STATE (N.C.T.OF DELHI)

JUDGEMENT

(1.) The appellant-Deepak impugns his conviction and sentence under Section 376/506 IPC in Sessions Case No.914/2006 arising out of FIR No.659/2006 registered at Police Station Saraswati Vihar by which he was sentenced to undergo rigorous imprisonment for seven years with fine.

(2.) Allegations against the accused were that in the month of January/February 2006 at House No.T-246/3, Railway Colony, Shakur Basi, Delhi, he committed rape upon 'X' (assumed name) and threatened to kill her. The prosecution examined 17 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C. and he pleaded false implication. He stated that 'X' was having love affair with one Narender who lived in the vicinity and when he objected to that, 'X' and her mother falsely implicated him in this case. On appreciating the evidence and considering the contentions of the parties, the Trial Court, by the impugned judgment, convicted and sentenced the appellant. Being aggrieved, the appellant has preferred the appeal.

(3.) Counsel for the accused challenged the impugned judgment and urged that the Trial Court did not appreciate the evidence in its true and proper perspective. The appellant who was in custody throughout the trial was not given an opportunity to cross-examine material witnesess 'X' and her mother PW-8 (Manju Devi) on the ground that they were not traceable. Application moved by the accused to cross-examine them under Section 311 Cr.P.C. was dismissed. The Trial Court did not examine inordinate delay of about five months in lodging the First Information Report with the police. Adverse inference is to be drawn against the prosecution for withholding Pooja (prosecutrix's sister) who was a material witness. The prosecution further failed to examine Narender with whom 'X' had love affairs. No DNA test was conducted. It is not clear if the pregnancy was terminated or not. The prosecution did not establish the exact place of the occurrence. Statement of the prosecutrix has not been corroborated.