HIMANSHU @ CHINU Vs. STATE

JUDGEMENT

(1.) CHALLENGE in this appeal is to a judgment dated 15.12.2012 in Sessions Case No.6/10 arising out of FIR No.303/09 registered at Police Station Shalimar Bagh by which the appellant -Himanshu @ Chinu was held guilty for committing offence under Section 376 IPC. By an order dated 22.12.2012 the appellant was awarded Rigorous Imprisonment for seven years with fine Rs. 5,000/ -.

(2.) ALLEGATIONS against the appellant, as projected in the chargesheet, were that on 12.10.2009 at about 08:00 p.m. after kidnapping the prosecutrix 'X' (assumed name), he took her in a garden/park near Sahipur village, Shalimar Bagh and committed rape on her person. Daily Diary (DD) No.25/A (Ex.PW -10/A) came into existence when information was conveyed at Police Station Shalimar Bagh that 'X' has been raped by one Chinu. The investigation was assigned to ASI Manisha. After recording victim's statement, FIR under Section 363/366/376 IPC was registered. During investigation, 'X' recorded her Section 164 statement. She was medically examined. Statements of witnesses conversant with the facts were recorded. The appellant was arrested. Exhibits were sent to Forensic Science Laboratory for examination. After completion of investigation, a charge -sheet was laid before the court. The prosecution examined 11 witnesses to establish appellant's guilt. In 313 statement, denying his involvement in the crime, he pleaded false implication and examined DW -1 (Ms Neetu) and DW -2(Smt.Neeru) in defence. The trial resulted in his conviction under Section 376 IPC. It is significant to note that the appellant was acquitted of the charges under Section 363/366 IPC and the State did not challenge the said acquittal.

(3.) CONVICTION of the appellant is primarily based upon the sole testimony of the prosecutrix 'X'. Her testimony has, however, not been corroborated by any other independent witness. Admitted position is that both the prosecutrix and the appellant were known to each other for about 2 -3 years before the incident. They used to have conversation on mobile. The prosecutrix used to meet the appellant in a park near her house. Despite scolding by her father, she did not stop meeting him and to have conversation on phone. After registration of the FIR, admittedly, she remained in touch with the appellant's sister. In her cross -examination, she admitted that after a quarrel with her father, she had left the house to stay at the house of the appellant's sister in village Shalimar Bagh. She stayed there for about 25 days. Victim's father PW -2 (Prem) on 17.03.2010, admitted that his daughter was missing from the house since 3.2.2010. He further admitted that her daughter used to visit the appellant's house even after his arrest to meet his sister and conversed with her for long hours. In the cross -examination, he expressed inability to disclose her whereabouts and to produce her in the court. The prosecutrix admitted that she was having friendship with the accused for the last 2 -3 years prior to the incident to the knowledge of her father.