NEERAJ Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) BY the present appeal, the Appellant challenges the judgment dated 25th July, 2012 whereby he has been convicted for offence under Section 376 (1) IPC and the order on sentence dated 3rd August, 2012 directing him to undergo Rigorous Imprisonment for a period of 7 years and to pay a fine of Rs. 100/ - and in default thereof to undergo Rigorous Imprisonment for one day.

(2.) LEARNED counsel for the Appellant contends that the conviction has been based on mis -appreciation of facts and law. As per the Doctor, the Appellant was incapable of sexual intercourse. Thus he could not have been convicted for offence under Section 376 IPC. Further the hymen of the prosecutrix was intact. There was no injury either on the male organ or the private parts of the prosecutrix. The FSL result also does not support the prosecution case. Material witnesses have not been examined.

(3.) HEARD learned counsel for the parties and perused the records. The case of the prosecution is that the prosecutrix used to take tuitions from the sister of the Appellant and thus used to visit his house. On 7th January, 2010 PW8 father of the prosecutrix had gone to attend his work in the hotel and PW7 the mother of the prosecutrix had left the house at 9.30 AM for work in the Kothi. When PW7 the mother of the prosecutrix was going, the Appellant enquired as to where she was going to which she replied that she was going to Kothi. Thereafter, the Appellant enquired as to whether the victim had gone to school or not. PW7 stated to the Appellant that victim had not gone to school as she was not well and left for her work. Thereafter the Appellant went to the house of the prosecutrix where she was all alone. The Appellant took off his clothes and the undergarments of the prosecutrix and inserted his private part into the private part of the prosecutrix. He also inserted his two fingers inside her private parts. She wept loudly and thereafter the Appellant left. When PW7 the mother of the prosecutrix came back to her house she found the prosecutrix sleeping. On PW7 awakening her she started weeping and told to her mother about the incident. Both the prosecutrix and her mother became giddy. The father of the prosecutrix came to house on 8th January, 2010 at about 9.30 PM when the mother narrated the entire incident, where after the father consulted his employer after going to his residence who advised him to inform the Police and thus PW8 informed the Police and a FIR was registered. The MLC of the prosecutrix was prepared vide PW18/A by Dr. Hritikesh Chakravorty.