SAMEER Vs. STATE

JUDGEMENT

(1.) CHALLENGE in this appeal is to a judgment dated 14.07.2004 of learned Additional Sessions Judge in Sessions Case No. 190/2000 emanating from FIR No. 510/93 registered at Police Station Paschim Vihar by which the appellant Sameer was held guilty for committing offences punishable under Sections 366/376 IPC. By an order dated 19.07.2004, he was sentenced to undergo Rigorous Imprisonment for five years with fine Rs. 3,000/ - under Section 366 IPC and Rigorous Imprisonment for seven years with fine Rs. 5,000/ - under Section 376 IPC. Both the sentences were to operate concurrently.

(2.) BRIEFLY stated the prosecution case as projected in the charge - sheet was that on 16.09.1993 at about 11:00 a.m., the appellant and Bhupender Singh (Proclaimed Offender) in furtherance of common intention abducted the prosecutrix 'X' (assumed name), aged around 15 years and committed gang rape upon her in a room at Krishan Vihar. Daily Diary (DD) No. 19B came into existence at Police Station Paschim Vihar at 10.05 p.m. that day on getting information that some Muslim criminals had entered inside House No.A -2/31, Paschim Vihar. The investigation was marked to SI Kanshi Ram who with Constable Ayub Khan went to the spot. After recording victim's statement (Ex.PW -1/A), SI Kanshi Ram lodged First Information Report (FIR in short). In the complaint 'X' disclosed that at around 11:00 a.m. when she had gone to Blue Bell Academy, Jawala Heri, for taking tuition, she was kidnapped from there by Sameer and Bhupender at the point of knife after criminal intimidation. She was taken to Krishan Vihar where they both committed rape upon her. 'X' was medically examined; she recorded her statement under Section 164 Cr.P.C. Statements of witnesses conversant with the facts were recorded. The accused persons were arrested and taken for medical examination. Exhibits collected during investigation were sent to Central Forensic Science Laboratory for examination. Upon completion of investigation, a charge -sheet was filed against the appellant and Bhupender for committing the offences under Sections 363/366/376 IPC. During trial, Bhupender absconded and was declared Proclaimed Offender vide order dated 03.02.2000. To establish the appellant's guilt, the prosecution examined twelve witnesses in all. In 313 statement, the appellant denied his involvement in the crime and pleaded false implication. After considering the rival contentions of the parties and on appreciation of the evidence, the Trial Court convicted the appellant for committing offences mentioned previously. Being aggrieved and dissatisfied, the instant appeal has been preferred.

(3.) IN the instant case, 'X' has given conflicting and contradictory versions about the rape incident at various stages of the investigation/trial which make it unsafe to base conviction on her solitary statement. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction.