SALIM Vs. THE STATE (GOVT. OF NCT) DELHI

JUDGEMENT

(1.) CHALLENGE in this appeal is to the judgment dated 10.07.2013 and order on sentence dated 12.07.2013 vide which the appellant Salim alias Amir was convicted for offence under Section 376 IPC and was sentenced to undergo rigorous imprisonment for a period of 7 years in addition to payment of fine of Rs. 5000/ - in default, to undergo simple imprisonment for one year.

(2.) THE prosecution case, as borne out from the chargesheet, is that on 14.02.2011 at about 10.15 pm on receipt of information about commission of rape upon a girl ASI Pushpa alongwith Constable Santveer reached LNJP Hospital where they met ASI Mohd. Usman and Constable Shiv Pal. ASI Mohd. Usman handed over DD No. 24A dated 14.02.2011 to ASI Pushpa. Statement of victim 'F' was recorded. After her medical examination she disclosed about commission of rape upon her by one Amir. The statement of prosecutrix culminated in registration of FIR No. 09/2011 under Section 363/376/511 IPC. Ossification test of the prosecutrix was conducted wherein her age was determined to be 16 years with margin of six months on either side. Accused was arrested at the instance of prosecutrix whose name was revealed as Salim alias Amir. Pursuant to the disclosure statement of accused Amir, accused Arman and Mehfuz were also arrested and Section 120B was added later on. After completing investigation, chargesheet was submitted under Section 363/376/120B IPC. Charge for offence under Section 376 IPC was framed against accused Salim alias Amir whereas accused Mehfuz Ahmad were charged with offence punishable under Section 109 IPC read with Section 376 IPC to which they pleaded not guilty and claimed trial. Accused Arman was discharged vide order dated 07.06.2011.

(3.) FEELING aggrieved, present appeal has been filed by accused Salim alias Amir. Assailing the findings of the learned Trial Court, learned counsel for the appellant submitted that the chargesheet was submitted under Section 376/511 IPC. As per the ossification test, the prosecutrix was reported to be 16 years of age and six months margin was to be given on either side. That being so, benefit has to be given to the accused. There is contradiction regarding identity of the accused in as much as in the MLC, the prosecutrix did not name any person who committed rape on her. At other stages also, she was referring to the offender as Amir only. There is nothing in the MLC to show that the prosecutrix was subjected to rape. In her first MLC, the pregnancy test gave negative report. After one month another pregnancy test was conducted which gave positive report and, therefore, charge under Section 376 IPC was framed. When at the earliest juncture the hymen of the prosecutrix was found intact and pregnancy test was negative then it is clear that in between the first MLC and second MLC the prosecutrix had sexual intercourse with some other person which resulted in her pregnancy. Prosecutrix herself has not supported the case of prosecution and as such, was declared hostile. There is no evidence to conclusively connect the accused with the crime. Jamila at whose house the prosecutrix is alleged to have gone has not been examined. Under the circumstances, it was submitted that prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. The impugned judgment cannot be sustained and the same be set aside.