SURENDER MANDAL Vs. STATE (NCT DELHI)

JUDGEMENT

(1.) The appellants Surender Mandal (A-1), Dhani Ram (A-2), and Mahender Mandal (A-3) impugn their conviction in Sessions Case No.376/2006 arising out of FIR No.180/2003 registered at Police Station Keshav Puram by which they were convicted for committing offences punishable under Section 376 (2) (g) IPC and sentenced to undergo RI for ten years with fine Rs. 1,000/- each.

(2.) Allegations against the accused were that on 28.05.2003 at about 11:00 P.M. they all in furtherance of common intention committed gang rape with 'X' (assumed name) aged three years in the house of Shabnam, at Gali Sainiwali Ram Pura, Delhi. Daily Dairy (DD No.27-A) was recorded at 12:45 A.M. on the night intervening 28/29.05.2003 at Police Station Keshav Puram on getting information that a girl aged two and a half years was raped and the culprit has been apprehended. The investigation was assigned to SI Ram Chander who with Constable Dharmavir reached the spot. In her statement, Shabnam disclosed that on 28.05.2003 when she went to her house after selling vegetables at about 11:00 P.M., she saw that A-2 was committing rape upon her daughter 'X'. A-1 was present inside the room waiting for his turn and was pressing her daughter's mouth. A-3 was standing outside the room to guard the spot. On seeing her, they started fleeing the spot. 'X' was bleeding from her private parts. She gave beatings to the accused. On hearing her noise, many people gathered and caught hold them. During the course of investigating, 'X' was medically examined. A-1 to A-3 were arrested. Statements of the witnesses conversant with the facts were recorded. Exhibits were sent to the Central Forensic Scientific Laboratory, Kolkota (CFSL). After completion of investigation, a charge-sheet was submitted against A-1 to A-3. They were duly charged and brought to trial. The prosecution examined eight witnesses. Statements of the accused were recorded under Section 313 Cr.P.C. and they pleaded false implication. On appreciating the evidence and considering the rival contentions of the parties, by the impugned judgment, the Trial Court held all the accused responsible for committing rape upon the prosecutrix 'X'. Aggrieved by the said orders the appellants have preferred the present appeals.

(3.) Counsel for the accused urged that the Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error in relying upon the sole testimony of PW-1 (Shabnam) without ensuring her credibility. The prosecution case was based upon circumstantial evidence and there were major discrepancies and lapses in investigation which were conveniently ignored. The prosecution failed to establish the exact spot of occurrence and perpetrators of the crime. Adverse inference is to be drawn against the prosecution for not examining the complainant's children who were present in the room where the prosecutrix was ravished. The CFSL report does not connect the accused with the crime.