JAI NARAIN Vs. STATE

JUDGEMENT

(1.) BY the present appeal the Appellant challenges the judgment dated 12th April, 2012 convicting him for offences punishable under Sections 376/342/506 IPC and order on sentence dated 16th April, 2012 whereby he has been awarded sentence of rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 3000/ - for offence under Section 376 IPC, and rigorous imprisonment for a period of 1 year each and a fine of Rs. 1000/ - each for offences under Sections 506 and 342 IPC.

(2.) LEARNED counsel for the Appellant contends that the only evidence against the Appellant is the oral testimony of the prosecutrix which does not inspire confidence. There are material contradictions in the statement of the prosecutrix. Neither the medical evidence nor the FSL report supports the version of the prosecutrix. The delay in lodging the FIR has not been explained and in a case of promise of marriage the offence at best committed by an accused can be of cheating and not rape. The testimony of the son of the prosecutrix is tutored and hence cannot be taken into consideration. The prosecutrix does not deny knowing the Appellant. It is the admitted case of the prosecutrix that she had been visiting the Appellant earlier as well and if he wanted to take advantage of her he would have done it earlier as well. The version of the prosecutrix is highly improbable and hence the Appellant is entitled to be acquitted of the charge. Reliance is placed on Narender Kumar Vs. State (NCT of Delhi) AIR 2012 SC 2281.

(3.) HEARD learned counsel for the parties and perused the record. The case of the prosecution is based on the testimony of PW1 the prosecutrix who lodged the FIR. The prosecutrix has stated that the husband of the prosecutrix expired in the month of June 2008 where after she along with her son started residing with her mother and the two brothers. About six months prior to the date of incident she became familiar with the Appellant who was residing in a Jhuggi at Sultanpuri. The Appellant told her that he was possessing spiritual powers (Tantrik Shakti) and he would solve all her problems (Vipattion ko door kar dega). About 10 days prior to 3 rd May, 2009 she visited his place with regard to her problems, when the Appellant asked her to come on Sunday, the 3rd May, 2009. On 3rd May, 2009 at about 3.00 PM she along with her son reached the Jhuggi of the Appellant where the Appellant hypnotized her and gave her something to smell. The Appellant sent her son outside the Jhuggi. He closed the Jhuggi from inside and raped her. When she regained consciousness, she scolded the Appellant and told him that she would inform the Police. On hearing this the Appellant threatened to kill her and her son, asked her to be silent and not to disclose this incident to anybody. She along with her son went back to her home, however due to the fear of threat extended by the Appellant she did not tell On 5th May, 2009 she narrated the whole any one about the incident. incident to her mother where after she along with her mother went to PS Sultanpuri and lodged the complaint Ex. PW1/A. In the cross -examination the prosecutrix has stated that she got married in the year 1988 and her son was born on 31st October, 1999. When her son was nearly 10 year old her husband expired. Though PW1 has been suggested that she used to meet the Appellant at Bahadurgarh, however she denied the said suggestion. In the cross -examination the Appellant has sought to elicit from her that in the statement recorded under Section 161 Cr.P.C. the problems faced by the prosecutrix were not noted. Besides these facts, nothing material could be elicited in the cross -examination of the prosecutrix.