MANOJ Vs. STATE

JUDGEMENT

(1.) AGGRIEVED by a judgment dated 23.03.2011 of learned Additional Sessions Judge in Sessions Case No.62/10 arising out of FIR No.94/06 Police Station Mandir Marg by which the appellant Manoj was convicted under Section 376, he has preferred the instant appeal. By an order dated 25.03.2011, the appellant was awarded RI for seven years with fine Rs. 2,000/ - under Section 376 IPC.

(2.) BRIEFLY stated, the prosecution case as set up in the chargesheet was that on the night intervening 8/9.03.2006 in a garage of H Block, Kali Bari Marg, New Delhi, the appellant committed rape upon 'X' (assumed name), aged about 16 years. The Investigating Officer lodged First Information Report after recording victim's statement (Ex.PW -8/A). The prosecutrix 'X' implicated the appellant Manoj for forcibly committing rape upon her on the pretext to marry her. 'X' was taken for medical examination. The accused was arrested and medically examined. Statements of witnesses conversant with the facts were recorded. After completion of investigation, a charge -sheet was filed against the accused under Section 376 IPC. The prosecution examined eleven witnesses to substantiate its case. In 313 statement, the appellant denied his involvement in the crime and pleaded false implication. The trial resulted in his conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been preferred.

(3.) I have heard the learned counsel for the parties and have examined the file. The appellant's conviction is primarily based upon the sole testimony of the prosecutrix 'X'. She has, however, given divergent versions about the incident and her evidence does not inspire confidence. Admitted position is that she was as working domestic help in the house of Manju Sharma. Manju Sharma had written to the concerned police station on 08.03.2006 that 'X' working with her as maid since 31.01.2005 had gone to bring 'maggi' from the market at around 05:30 p.m. on 08.03.2006 and did not return. Apparently, 'X' had accompanied the appellant with her free consent on 08.03.2006 without even informing her employer. In her statement (Ex.PW -8/A) to the police, she disclosed about appellant's acquaintance with her about two days before the incident at Sabzi market, H Block and his inclination for love towards her. She met the appellant the next day. On 08.03.2006, she met him again at around 05:00 p.m. at Mandir Marg; went to Talkatora Garden and discussed family matters. The appellant took her in the garage of H Block and they had dinner there. During night, the appellant established physical relations with her on the promise to marry against her wishes. Admittedly, 'X' was a consenting party when she accompanied the appellant to the garage and took dinner with him there. She remained present in the said garage throughout the night. In her 164 Cr.P.C. statement she disclosed that the appellant had established physical relations with her 'six' times during that night. Strange enough, she did not raise hue and cry; no resistance was put by her. The garage was not located in a secluded place and no residents of the locality heard her cries. She did not suffer any injury on her body including private ones. In her Court statement, she disclosed that she was taken in a TSR forcibly. Even at that time, she did not raise any alarm. It is unclear if she had given 'consent' for physical relations on the pretext of marriage or physical relations were established forcibly against her wishes. On the next morning, it was the accused who left her at the place of her work. Even at that time, the prosecutrix did not complain about his conduct and behaviour to anyone including her employer. In her examination -in -chief, she claimed that the entire incident was disclosed/narrated by her to her employer Manju and she had called the police. PW -10 (SI B Lakra) has given an entirely different version stating that he had arrived the police station on getting telephonic message from Police Station Mandir Marg that a girl was sitting there to lodge complaint of rape. Thereafter, he went to the Police Station and recorded victim's statement. Admittedly, Manju was not examined and cited as a witness. IO did not make any independent inquiry from the neighbourhood where the occurrence took place. The prosecutrix disclosed about the presence of appellant's friend in the garage initially, who left soon thereafter. IO did not examine any inmate of the garage. In his examination, the IO informed that one Sriram a tenant in the said garage had gone to his native village and his son used to stay in the said garage. None of them has been examined by the Investigating Officer.