SOM DEV Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) Aggrieved by a judgment dated 16.02.2012 of learned Addl. Sessions Judge in Sessions Case No.46/10 arising out of FIR No. 261/09 PS Subzi Mandi, convicting him for commission of offence under Section 376 IPC, the appellant Som Dev has preferred the instant appeal to challenge its legality and correctness. By an order dated 18.02.2012, he was awarded RI for ten years with fine Rs. 20,000/-.

(2.) Briefly stated the prosecution case as projected in the chargesheet was that on 21.05.2009 at around 04.00 p.m. at Nehru Kutiawali Gali, Malka Ganj, Delhi, the appellant committed rape upon 'X' (assumed name). On 09.06.2009, an information was received at Police Control Room vide DD No.21 (Ex.PW-5/A) at 08.50 p.m. to the effect that Const.Som Dev posted at PS Subzi Mandi was sexually abusing a girl for the last three or four months on the false promise to marry. It further informed that Insp.Veena Sharma had obtained Rs. 1 lac to suppress the complaint made to her. On receipt of DD No.28A (Ex.PW-15/A), PW-15 (SI Siddappa) along with Const.Sunny went to the spot i.e. 3244, Aryapura, Subzi Mandi and met the prosecutrix 'X'. She disowned any such call to have been made by her to the police. Subsequently, 'X' went to the police station at around 10.00 p.m. and lodged complaint (Ex.PW- 1/A). It was assigned for investigation to Insp.Veena Sharma. No action was taken on the said complaint and she kept it 'pending'. The complaint received vide DD No.21 (Ex.PW-5/A) was referred to PG Cell, North District for conducting enquiry. PW-5 (WSI Usha Rani) examined various individuals in the said enquiry and recorded their statements. She collected details of phone calls. Upon completion of the enquiry, she submitted her report (Ex.PW-5/F) concluding that Const.Som Dev had established physical relations with 'X' on the pretext of marriage and Insp.Veena Sharma had attempted to cover up the matter. She forwarded the enquiry report to the concerned ACP. On receipt of the enquiry report, Insp.Veena Sharma made endorsement (Ex.PW-16/A) on 23.10.2009 on the complaint (Ex.PW-1/A) which was still 'pending' and lodged First Information Report under Section 376 IPC. The investigation was taken over by PW-15 (SI Siddappa). 'X' was medically examined. The accused was taken for medical examination on 01.12.2009 and finally arrested on 04.12.2009. Statements of witnesses conversant with facts were recorded. Upon completion of investigation, a charge-sheet was laid before the Trial Court against the appellant. The appellant was charged under Section 376 IPC to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined 16 witnesses. In 313 Cr.P.C. statement, the appellant denied his involvement in the crime and pleaded false implication. He examined DW-1 (SI Ram Pal Singh), DW-2 (Const.Sant Kumar), DW-3 (HC Ram Kishan) and DW-4 (Const.Jitender Kumar) in defence. After appreciating the evidence and considering the rival contentions of the parties, the Trial Court convicted the appellant under Section 376 IPC. Being aggrieved and dissatisfied, the instant appeal has been preferred.

(3.) I have heard the learned Senior Counsel for the appellant and learned Addl. Public Prosecutor for the State and have examined the record. Learned Senior Counsel for the appellant would urge that the Trial Court did not appreciate the evidence of the material witnesses in its true and proper perspective. Various material infirmities, inconsistencies and discrepancies in the prosecution case were ignored without cogent reasons. The prosecution was unable to establish beyond doubt if the appellant had established physical relation with the prosecutrix at the residence of PW - Kanchan at Malka Ganj on 21.05.2009 at 04.00 p.m. as alleged. Kanchan in her 164 Cr.P.C. statement denied any such visit by the prosecutrix along with the appellant at her house that day. She was not produced by the prosecution for examination and her non-examination is fatal. The Trial Court without sound reasons omitted to give due weightage to defence evidence wherein it emerged that on 21.05.2009, the appellant was deputed to attend training programme at Kingsway Camp and was physically present there during the whole period. His colleagues Const.Sant Kumar (DW-2) and Const.Jitender Kumar (DW-4) were with him throughout the day and they have spoken so. The appellant and his colleagues had left the police station to attend training at 4th Batalian, DAP vide DD NO. 13B (Ex.DW-1/1) at 06.12 a.m. and had arrived at 06.35 p.m. for which DD No.69B (Ex.DW-1/2) came into existence.