MITHU RAI Vs. STATE

JUDGEMENT

(1.) CHALLENGE in this appeal is to the judgment dated 24.09.2010 and order on sentence dated 11.10.2010 passed by the learned Additional Sessions Judge, Rohini, Delhi in Session Case No. 191/09 arising out of FIR No. 447/07, P.S.Adarsh Nagar wherein the appellant was convicted u/s 376(2)(f) of Indian Penal Code, 1860 (hereinafter referred as IPC) and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 1,000/ -, in default, to undergo simple imprisonment for 60 days. He was granted benefit of Section 428 of the Code of Criminal Procedure, 1973.

(2.) THE victim in the instant case is a minor child aged about 5 years at the time of incident, who was subjected to rape by the accused. As per the prosecution case, the accused was working in Pasha Ki Dairy where the victim along with her parents was also residing. On the horrific day of 12th September, 2007, after taking meal, the prosecutrix had gone to play in the street along with other children at about 10:00 p.m. when she was taken by the accused who gave her some money, put his finger in her private part and thereafter committed rape on her. She informed this fact to her elder sister Laxmi. Police was informed on which DD 25A Ex.PW8/A was recorded and the same was handed over to SI Ram Kumar for further action. PW12 -SI Ram Kumar along with Constable Ram Karan went to the spot where PW9 -W/ASI Pushpa reached the spot and the DD was handed over to her for further investigation. W/ASI Pushpa met the prosecutrix along with her sister Laxmi. Thereafter the prosecutrix was taken along with her sister to BJRM Hospital for medical examination where she was medically examined. Doctor handed over three sealed parcels containing vaginal swab, perennial swab, frock of the prosecutrix which were seized vide memo Ex.PW9/A. X -ray of prosecutrix was also got conducted for bone age estimation. After collecting the MLC of the prosecutrix, they returned to the house of prosecutrix. W/ASI recorded the statement of Laxmi Ex.PW2/A from which it was revealed that the accused Mithu Rai had committed rape upon her who was residing as tenant in the same house bearing No. 205/10, Pasha Ki Dairy, Village Azadpur, Delhi. On the pointing out of prosecutrix, accused was apprehended. Rukka Ex.PW9/B was prepared on the basis of which FIR 447/07 u/s 376 IPC was registered. Site plan Ex.PW9/X was prepared. PW Laxmi handed over one blood stained bed sheet and one blood stained washed underwear of prosecutrix which were seized vide memo Ex.PW2/D. Accused was arrested vide memo Ex.PW2/B. On the next day, he was taken to hospital where he was medically examined. The undergarment of accused, blood stained gauze of accused and his blood sample were taken. On 14th September, 2007 prosecutrix was also taken to BJRM Hospital and her blood sample was taken. Statement of prosecutrix u/s 164 Cr.P.C. was got recorded. During the course of investigation exhibits were sent to FSL. After completing investigation, charge sheet was submitted against the accused.

(3.) IN order to substantiate its case, prosecution in all examined 14 witnesses. All the incriminating evidence appearing against the accused was put to him while recording his statement u/s 313 Cr.P.C. wherein he denied the case of prosecution and alleged his false implication in this case. It was alleged that he used to realise rent from the tenants on behalf of owner of Pasha ki Dairy including the father of the prosecutrix, who never paid rent to him despite repeated requests and got this false case registered against him. Since this was a false case, therefore, even the parents of the prosecutrix did not turn up for evidence. In support of his defence, he examined 4 witnesses.