CHAND SINGH Vs. STATE OF DELHI

JUDGEMENT

(1.) Aggrieved by a judgment dated 05.03.2002 of learned Addl. Sessions Judge in Sessions Case No. 90/01 arising out of FIR No. (46/2000 PS Dwarka, by which he was held guilty for committing offence punishable under Section 376 IPC, the instant appeal has been filed by him. By an order dated 06.03.2002, he was awarded RI for five years with fine Rs. 10,000/-. Briefly stated, the prosecution case as set up in the charge-sheet was that on 19.03.2001 at about 03.00 P.M., after wrongfully confining 'X' (assumed name) aged about sixteen years in his shop situated in House No. RZ G559, Raj Nagar-II, Palam Colony, the appellant sexually assaulted her after putting her in fear. The police machinery swung into action when intimation about the incident was conveyed vide Daily Diary (DD) No. 26A (Ex. PW-11/B) at 08.20 P.M. that day. The investigation was entrusted to SI Rajiv Yadav who went to the spot and met X's parents. After recording victim's statement (Ex. PW-1/A), he lodged First Information Report. 'X' was medically examined. The accused was arrested and medically examined. Statements of the witnesses conversant with the facts were recorded. Exhibits were sent to Forensic Science Laboratory for examination. After completion of investigation, a charge-sheet was submitted against the appellant for commission of offences under Sections 342/506/376 IPC. To establish appellant's guilt, the prosecution examined twelve witnesses. In 313 Cr.P.C. denying his involvement, the appellant claimed false implication and examined DW-1 (Harish Yadav) in defence. After considering rival contentions of the parties and appreciating the evidence on record, the Trial Court, by the impugned judgment, convicted the appellant under Section 376 IPC. It is significant to note that he was acquitted of the charges under Sections 342/506 IPC and the State did not challenge the said acquittal. Being aggrieved and dissatisfied, the instant appeal has been preferred.

(2.) I have heard the learned counsel for the parties and have examined the file. Appellant's conviction is primarily based upon the sole testimony of 'X'. In her statement (Ex. PW-1/A) to the police, at first instance, 'X' gave graphic detail as to how and under what circumstances, she was, sexually assaulted by the appellant after confining her inside his shop. She was criminally intimidated and threatened not to disclose the incident or to face dire consequences. When she returned to home, she apprised her parents who made a telephone call to the police. In her Court statement (PW-1), she proved the version given to the police initially without much variation and implicated the appellant for forcible rape upon her at the point of knife. PW-2 (Munaki Devi) and PW-3 (Palak Dhari Verma), X's parents testified on similar lines.

(3.) The Trial Court did not adhere to X's version that she was forcibly raped by the appellant. It came to the conclusion that the physical relations with the appellant were with her consent. Since she was below sixteen years of age on the day of occurrence, her consent was immaterial or inconsequential. For that reason, the appellant was acquitted under Sections 506/342 IPC. The findings of the Trial Court in this regard can't be faulted. Indisputably, 'X' and the appellant were acquainted with each other prior to the incident and lived in the same vicinity. The appellant has brought on record photographs (Ex. PW-1/DA and Ex. PW-1/DB) showing intimacy between the two before the occurrence. Number of letters were placed on record by the appellant allegedly written by 'X'. 'X' did not raise hue and cry or alarm at any stage. The shop, where the alleged incident occurred was not situated in a secluded place and was surrounded by number of other shops. Even 'X's house was opposite to the shop in question. In her earlier version Ex. PW-1/A, 'X' did not reveal if she was criminally intimidated at the point of 'knife', no such knife was recovered. She was medically examined vide MLC (Ex. PW-9/A) and no physical injuries on her body were found; there was no bleeding/discharge, no fresh tears, hymen was not intact; vagina admitted one-finger easily. Had there been forcible rape, there was every possibility of 'X' to sustain struggle marks on her body which are lacking.