STATE Vs. BRIJ DEV TIWARI

JUDGEMENT

(1.) Aggrieved by a judgment dated 29.08.2011 of learned Addl. Sessions Judge in Sessions Case No.09/11 arising out of FIR No.443/10 PS Dabri by which the respondent Brij Dev Tiwari @ Pandit was acquitted of the charges, State has preferred the instant appeal. It is contested by the respondent.

(2.) Briefly stated, the prosecution case as reflected in the chargesheet was that on 18.12.2010 at 10.00 p.m. at House No.A-83, ground floor, gali No.19, Bharat Vihar, New Delhi, the respondent committed rape upon the prosecutrix 'X' (assumed name) aged around eight years and criminally intimidated her brother Rajesh Kumar. The incident was reported to the police on 20.12.2010 and Daily Diary (DD) No.10A (Ex.PW-12/A) came into existence at 09.30 a.m. The investigation was assigned to SI Anil Kumar who with Const.Mahender Singh went to the spot. After recording statement of the victim's brother Rajesh Kumar (Ex.PW-8/A), the Investigating Officer lodged First Information Report. 'X' was medically examined; she recorded her 164 Cr.P.C. statement. Exhibits collected during investigation were sent to Forensic Science Laboratory for examination. The accused was arrested and medically examined. Upon completion of investigation, a charge-sheet was filed against the respondent for commission of offences punishable under Sections 376/506 IPC. The prosecution examined twelve witnesses to establish respondent's guilt. In 313 Cr.P.C. statement, the respondent denied his involvement in the crime and pleaded false implication. The trial resulted in his acquittal. Being aggrieved and dissatisfied, the State has come in appeal.

(3.) I have heard the learned counsel for the parties and have examined the file. In the complaint (Ex.PW-8/A) the complainant Rajesh Kumar informed that on 18.12.2010 at around 10.00 p.m. when he returned to his house and went up-stairs, he heard X's voice from inside the respondent's room on the ground floor. The room was half-closed. When he saw inside the room, he found that the accused was attempting to commit rape upon 'X'. On seeing him, the respondent became perplexed, put 'on' clothes and fled the spot. He brought 'X' up-stairs and informed about the incident to his wife Manju. After some time, the respondent returned and threatened to kill him. Due to fear, he did not lodge report that day. In his Court statement, the complainant as PW-8 introduced a new version quite inconsistent and contradictory to the initial statement (Ex.PW-8/A) given to the police. He deposed that on 18.12.2010 at about 10.00 / 10.15 p.m., when he returned from his place of work and went to his room, he did not find 'X' there. On enquiry from his wife, he came to know that she might have gone to toilet. However, 'X' was not there in the toilet. He came down-stairs and made enquiries from Seema, a tenant on the ground floor. Her son aged around 4 5 years informed him that 'X' was in the respondent's room. He knocked at the respondent's room for about 15 20 minutes and when it was opened he found the prosecutrix in his room. He brought her up-stairs and she informed him that the respondent had committed rape upon her. He asked his wife to check the prosecutrix after removing her panty. After examining the prosecutrix, she informed him that there was 'blood' on her panty. He came down-stairs and informed Seema about the incident. Next morning, his landlord came at around 08.00 a.m. and he apprised him of the occurrence. He assured to get the room vacated from the respondent. At about 06.00 p.m. next-day, Manoj, his landlord's son on mobile threatened him to kill if he reported the incident to anyone. As the witness had made vital improvements, the learned Addl. Public Prosecutor crossexamined him after seeking Court's permission. He was confronted with the statement (Ex.PW-8/A) on various facts which were not stated that time. The witness did not explain as to why all these facts stated in the examination-in-chief were omitted to be recorded in his initial complaint (Ex.PW-8/A). About X's panty, he informed that it was left in the Indica car of his brother-in-law - Kamal on return from the police station.