PRADEEP @ SHERU @ SHER SINGH Vs. STATE

JUDGEMENT

(1.) The appellant Pradeep @ Sheru @ Sher Singh impugns judgment dated 11.09.2009 and order on sentence dated 24.09.2009 in Sessions Case No.85/2009 arising out of FIR No.903/2007 registered at Police Station Rohini by which he was held guilty for committing offences punishable under Sections 363/366/376 IPC and sentenced to undergo RI for ten years with total fine of Rs. 9,000/-.

(2.) The allegations against the accused were that on 28.09.2007 from House No.46, MTNL Colony, Sector 3, Rohini, he kidnapped prosecutrix 'X' (assumed name) and committed rape upon her for one month during her stay with him at Bateshwar. Statement of the prosecutrix 'X' was recorded under Section 164 Cr.P.C. She was medically examined. Her school records depicting her date of birth as 1st April, 1993 were collected. Statements of the witnesses conversant with the facts were recorded. After completion of investigation, charge-sheet was submitted against the accused. He was duly charged and brought to trial. The prosecution examined 13 witnesses. In his statement under Section 313 Cr.P.C. the accused pleaded false implication and alleged that a quarrel had taken place with the prosecutrix's brother and he was implicated in this case. On appreciating the evidence and considering the rival submissions of the parties, the Trial Court, by the impugned judgment convicted the appellant and sentenced him. Being aggrieved, the appellant has preferred the present appeal.

(3.) Learned counsel for the appellant alleged that the Trial Court did not appreciate the evidence in its true perspective and based its conviction on the sole testimony of the prosecutrix without seeking independent corroboration. The prosecutrix 'X' was major on the day of incident and had accompanied the appellant with her free will. She was a consenting party throughout. She had remained in the company of the appellant for about one month and never raised any alarm. The school certificate showing the age of the prosecutrix as 1 st April, 1993 is not an authenticated document. It was not based upon any birth certificate. The Trial Court was not justified to conclude that 'X' was below 16 years of age. There was no occasion for the prosecutrix to study in a school at Chander Vihar, East Delhi far away from her residence at Rohini. The school certificate does not show the gap of two years as admitted by her father. In the alternative, it was prayed that lenient view be taken as the appellant has already remained in custody for more than five years. Number of documents showing his conduct and behavior in the jail were produced. Learned Additional Public Prosecutor urged that there is no reason to discard the testimony of the child victim. The conviction can be based upon the sole testimony of the prosecutrix and it needs no corroboration. The prosecutrix was below 16 years of age on the day of occurrence. He, however, had no objection if considering the conduct of the accused, the order on sentence was modified.