GURVINDER SINGH Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) BY this appeal filed under Section 374 of Criminal Procedure Code, 1973 (hereinafter referred to as "Cr.P.C."), the appellant seeks to challenge the impugned judgment and order on sentence dated 07.03.2011 and 08.03.2011, respectively whereby the learned Additional Sessions Judge -IV, Rohini District Court, Delhi has convicted the appellant for committing an offence punishable under Sections 376/365/323 of Indian Penal Code, 1860 (hereinafter referred to as "I.P.C.") and sentenced him to undergo rigorous imprisonment for life together with imposition of fine of Rs. 5000/ - and in default of payment of fine, to further undergo simple imprisonment for a period of three months. So far as the offence punishable under Section 365 is concerned, the appellant was sentenced to undergo imprisonment for a period of five years and fine of Rs. 5,000/ - and in default thereof, to further undergo simple imprisonment for six months. So far as the offence punishable under Section 323, is concerned, the appellant was sentenced to undergo imprisonment for a period of one year and fine of Rs. 1,000/ - and in default thereof, to further undergo simple imprisonment for three months.

(2.) THE horrid incident unfolded by the prosecution in the charge sheet is as follows:

(3.) ADDRESSING arguments on behalf of the appellant, Mr. K. Singhal, Advocate contended that the appellant has been falsely implicated in the present case on the basis of his earlier conduct and character otherwise the prosecution has not succeeded in proving its case against the appellant beyond any shadow of doubt. The submission raised by the learned counsel for the appellant were fourfold: the first submission of the learned counsel for the appellant relates to identification and arrest of the appellant and on this aspect learned counsel for the appellant submitted that the prosecutrix failed to give complete description of the accused in the rukka where she only described the accused as a Sardar. The prosecutrix also failed to give any proper description as to whether such Sardar was tall or had a short height or whether he was of good health or having frail body. The prosecutrix also did not say anything about the place where she was taken by the accused. Learned counsel for the appellant also argued that during her entire examination -in -chief the prosecutrix had only referred to some Sardar who had committed wrong with her and even in court when she was asked to identify the accused then she pointed out to one Sardar present in the court and no finding has been recorded by the learned Trial Court that the witness had correctly identified the accused person. Learned counsel for the appellant further argued that PW -19 SI Usha Sharma in her deposition stated that the accused was produced before the court on 29.07.2008 in muffled face when he had refused to join the TIP where -after she along with the prosecutrix and her father were coming out from the court room then she identified the accused and thereafter she had recorded their statement. Deposing absolutely contrary to the same, PW1 - father of the prosecutrix, during a leading question put to him by learned APP, deposed that he had never visited the Rohini Court and he did not identify the accused present in the court. In his cross -examination, he categorically denied the suggestion of his visit to Rohini Court and that the accused was identified by his daughter on that date. Based on these submissions, learned counsel for the appellant submitted that identification of the accused in the present case is highly doubtful and the police under social pressure to resolve the case got the accused falsely implicated in the present case. Learned counsel for the appellant also submitted that the accused was already under arrest with the police on 28.07.2008 and this fact also has been duly mentioned by SI Usha Sharma in her said application Ex. PW19/E where she stated that the accused was arrested on being identified by the prosecutrix, if it was so then there was no occasion for conducting TIP of the accused on 29.07.2008. Learned counsel for the appellant also argued that during the TIP proceedings, the appellant had refused to participate as his face was already shown to the prosecutrix on 28.07.2008. Learned counsel for the appellant also argued that in her statement recorded under Section 164 Cr.P.C. the prosecutrix had taken the name of the accused whereas she was not aware about his name till the TIP proceedings were conducted as per own case of the prosecution.