BHUPINDER KUMAR Vs. STATE

JUDGEMENT

(1.) THE challenge in this appeal is to the impugned judgment and order on sentence dated 07.12.2010 whereby the appellant was convicted under Section 376 Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of seven (7) years and fine of Rs.2,000/ -, in default to undergo rigorous imprisonment for a period of two (2) months in Sessions Case No. 64/2010 arising out of FIR No. 158/2009 Police Station Khayala under Section 376 IPC.

(2.) THE prosecutrix 'X' was living with her sister - Anita in N - 162, Raghbir Nagar, New Delhi. On 06.07.2009 her sister and sister's husband had gone to Muradabad, U.P. Her brother - Arjun and three children were living with her. Arjun used to leave the house in the morning and used to return at night. On 15.07.2009 at about 4 pm when 'X' was washing clothes in the bathroom, accused - Bhupinder Kumar, who used to live in the same premises, caught hold of her hand and took her inside his room where he committed sexual intercourse with her against her wishes. After the incident, she started living quiet and was not in a position to tell the incident to anyone. When her sister - Anita returned from U.P., she narrated the entire incident to her. She visited the Police Station on 31.07.2009. She got medically examined but her statement could not be recorded as she was having headache. Her sister took her to Police Station next day i.e. on 01.08.2009 when her statement was recorded. This statement culminated in registration of instant FIR under Section 376 IPC. After medical examination of prosecutrix 'X', the doctor of DDU Hospital handed over slide sealed with the seal of CMO, DDU Hospital and sample seal which was taken in possession. The accused was also arrested; he was got medically examined on 04.08.2009. His blood sample, semen sample was taken into possession. The statement of prosecutrix was recorded under Section 164 Cr.PC wherein she narrated the same facts as told by her to the police. The ossification test of prosecutrix was done for assessment of her age and her age was reported to be more than 14 years and less than 15 years. The exhibits were sent to FSL. After completion of investigation, charge -sheet was submitted against the accused.

(3.) AFTER considering the entire evidence adduced by prosecution and hearing the learned counsel for the parties, the learned Additional Sessions Judge observed that the delay in lodging the FIR has been duly explained and is not fatal to the case of prosecution; non examination of Arjun - brother of prosecutrix again is of no consequence as he was not an eye witness of the incident; non -seizure of the clothes of prosecutrix was inconsequential because the medical examination was conducted after 16 days and chances of detection of semen on the clothes was practically finished. Therefore, non -detection of semen on the vaginal smear of prosecutrix as per FSL report has no effect. The factum of absence of injury is not a reason to disbelieve the testimony of prosecutrix, who being a victim of rape, is not an accomplice and her testimony does not require any corroboration. Moreover, the accused has failed to assign any reason as to why he would be falsely implicated in this case. The plea that he used to lend money to the family members of prosecutrix and on their failure to return the money, he was falsely implicated in this case could not be believed.