ZUBER Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) AGGRIEVED by a judgment dated 13.09.2012 of learned Additional Sessions Judge in Sessions Case No. 75/2011 emanating from FIR No. 211/2011 registered at Police Station Khajuri Khas by which the appellant -Zuber was held guilty for committing offences under Section 376(2) (f) /363/366/354/506 IPC, he has filed the instant appeal. By an order dated 19.09.2012, the appellant was awarded various prison terms with fine. The substantive sentences were to operate concurrently.

(2.) BRIEFLY stated, the prosecution case as set up in the charge -sheet was that on 11/07/2011, the appellant after kidnapping the prosecutrix 'X' (assumed name), aged around 11 years from the lawful guardianship of her parents, took her at his residence at House No. 10/711, A -Block, Shri Ram Colony, Khajuri, Delhi and committed rape upon her. Information about the incident was conveyed to the police and Daily Diary (DD) No. 10A (Ex.PW12/A) came into existence at 9.50 AM at PS Khajuri Khas on 13.07.2011. The investigation was assigned to ASI Tejwati who along with HC Roshni went to the spot. After recording statement of victim's mother (Ex.PW - 2/A), the Investigating Officer lodged First Information Report. 'X' was medically examined; she recorded her statement under Section 164 Cr.P.C. The accused was arrested and taken for medical examination. Statements of the witnesses conversant with the facts were recorded. Exhibits collected during investigation were sent for examination to Forensic Science Laboratory. Upon completion of investigation, a charge -sheet was filed in the Court. The prosecution examined fourteen witnesses to substantiate its case. In 313 Cr.P.C. statement, the appellant denied his involvement in the crime and pleaded false implication without examining any witness in defence. The trial resulted in his conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been preferred.

(3.) THE incident whereby 'X' was sexually assaulted is not under challenge. Appellant's only plea is that he was not the author of the crime and it was the handy work of someone else. In this regard, material testimony is that of the prosecutrix 'X' (PW -1). In her 164 Cr.P.C. statement (Ex.PW1/A), recorded on 14.07.2011, 'X' named the appellant to be the perpetrator of the crime. She gave detailed account as to how and under what circumstances she was ravished by the appellant. She elaborated that when she was coming back from her school on 11.07.2011, the accused took her inside his house and served her bread, chorma and sweets. Thereafter, he committed rape upon her. She was threatened not to disclose the incident. When her mother inquired from her about blood stains on her wearing clothes, she narrated her ordeal to her. Before recording 164 Cr.P.C. statement, the learned Presiding Officer had put various questions to the child witness to ascertain if she was making her statement voluntarily without any fear or pressure. In her Court statement as PW -1, the learned Presiding Officer before recording her statement conducted a preliminary inquiry and satisfied himself that the witness was competent to make statement. In her Court deposition, she identified the appellant, who lived in her neighbourhood and to whom she used to call 'Abba', to be the individual who had ravished her in his room after taking her there. She gave vivid description as to how and under what circumstances she was defiled. The accused even gave Rs. 20/ - to her for not disclosing the incident to any one. She further deposed that due to fear, she did not disclose the incident. On the next morning when her mother was getting her ready for school, she saw blood on her salwar and on inquiry she divulged the entire incident to her. In the cross - examination, she reiterated that the accused had committed 'wrong act' with her. She denied that she was taken by one 'Churanwala' from the gate of her school on the date of incident. She denied that her mother had tutored her to make the statement. She further denied that there was any quarrel between her father and the accused.