UPENDER MUKHIYA Vs. THE STATE (NCT OF DELHI)

JUDGEMENT

(1.) PRESENT appeal is directed against a judgment dated 09.04.2010 in Sessions Case No. 112/2008 arising out of FIR No. 263/2007 PS Okhla Industrial Area by which the appellant - Upender Mukhiya was held guilty for committing offence under Section 376(2)(f) IPC. By an order dated 13.04.2010, he was sentenced to undergo RI for ten years with fine Rs. 1,000/ -.

(2.) BRIEFLY stated, the prosecution case as set up in the charge - sheet was that on 30.03.2007 in between 03.00 to 04.00 p.m. at house No. RZ 113B/3, T.K.D. Extension, New Delhi, the appellant committed rape upon 'X' (assumed name) aged five years. The police machinery came in motion when Daily Diary (DD) No. 23 (Ex.PW -10/B) was recorded on 31.03.2007 at 09.30 p.m. at PS Okhla Industrial Area on getting information from duty constable AIIMS about admission of 'X' in injured condition there who was sexually assaulted near her house. The investigation was assigned to SI Vijay who with Const. Davender went to the hospital. After recording statement of Mithlesh Devi - victim's mother (Ex.PW -2/A), the Investigating Officer recorded First Information Report. 'X' was medically examined and she recorded statement under Section 164 Cr.P.C. The accused was arrested and medically examined. Statements of the witnesses conversant with the facts were recorded. Exhibits collected during investigation were sent for examination to Forensic Science Laboratory. After completion of investigation, a charge - sheet was filed against the appellant in the Court. The prosecution examined twelve witnesses to substantiate its case. In 313 Cr.P.C. statement, the appellant pleaded false implication and denied his involvement in the crime. He examined DW -1 (Surender Mukhiya) and DW -2 (Harender Mukhiya) in defence. The trial resulted in his conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been preferred.

(3.) PW -2 (Mithlesh Devi) proved the initial version given to the police vide complaint (Ex.PW -2/A) without any major variations. She disclosed that when she did not find 'X' in the house at 04.00 p.m., she went outside and saw her weeping. On enquiry, she told to have some pain in her vagina. She took it lightly and thought that it could be due to hot weather. On the next day, she found blood stains on her underwear and on enquiry came to know that the accused had sexually assaulted her. She narrated the incident to her husband who arrived at 08.00 a.m. after purchasing vegetables from Okhla Industrial Mandi. Since he was concerned with the vegetables to be sold, he told to return at 04.00 p.m. Thereafter, they went to the police station. From there, they were taken to AIIMS for medical examination where her statement (Ex.PW -2/A) recorded. She identified underwear (Ex.PW -2/1) seized by the police. In the cross -examination, she denied any business rivalry between the appellant and her husband. She volunteered that her husband used to sell vegetables while roaming whereas the accused sold vegetables in Chitranjan Park. She denied if any quarrel had taken place among Manoj, her husband and the accused about a month back and because of that the accused was falsely involved in the incident. She disclosed that the accused had come from his native place about 2 or 3 days prior to the incident. Apparently, no material infirmities could be extracted in her cross -examination. PW -6 (Virender Singh), X's father has testified on similar lines. Despite lengthy cross -examination, his version could not be shattered.