BRAHAMDEV PANDIT Vs. STATE (NCT) OF DELHI

JUDGEMENT

(1.) The appellant- Brahamdev Pandit impugns his conviction in Sessions Case No.9/1/2008 arising out of FIR No.940/2006 registered under Sections 363/376 IPC, PS Ashok Vihar by which he was convicted for committing offences punishable under sections 363/376 IPC. The appellant was sentenced to undergo RI for One year with fine Rs. 1,000/- and in default of payment of fine he shall further undergo SI for 30 days under Section 363 IPC. He was also sentenced to undergo RI for ten years with fine Rs. 5,000/- and in default of payment of fine he shall further undergo SI for six months under Section 376 IPC. Both the sentences were directed to operate concurrently.

(2.) Allegations against the accused were that on 24.11.2006 at about 02.00 P.M. from Central Park at J.J.Colony, Wazirpur, Delhi, he kidnapped prosecutrix 'X' (assumed name) aged about 5 1/2 years and committed rape upon her. The prosecution examined eleven witnesses in support of its case. In his 313 Cr.P.C. statement, the accused pleaded false implication and stated that he was kept in illegal detention since 25.11.2006. He examined ASI Roshan Lal as defence witness. On appreciating the evidence and considering the rival contentions of both the parties, by the impugned judgment, the accused was convicted. Being aggrieved, he has preferred the present appeal.

(3.) Counsel for the accused urged that the Trial Court did not appreciate the evidence in its true and proper perspective. The prosecutrix 'X' was aged about 4/5 years and did not understand the facts. Her statement under Section 164 Cr.P.C. was not recorded as she was incapable to understand the questions put to her and give rationale answers. Her testimony before the Court was wavering and she was unable to disclose the incident. When leading questions were put to her in examination-in-chief by the learned Prosecutor, she merely stated that the accused had done 'wrong act' with her. Though hymen was found torn in the MLC, it can happen for number of other reasons. In the MLC, it was alleged that sexual assault was committed by an 'unknown person'. No DNA test was conducted. Forensic Science Laboratory (FSL) report was not exhibited in evidence. Learned APP while supporting the judgment urged that it does not call for interference. The prosecutrix 'X' was recovered from the custody of the accused after number of days. The medical evidence corroborates the testimony of the prosecutrix and there is no reason to disbelieve her.