SHIBU Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) The appellant - Shibu challenges the legality and correctness of a judgment dated 03.01.2013 of learned Addl. Sessions Judge in Sessions Case No. 18/12 arising out of FIR No. 412/11 PS Mukherjee Nagar whereby he was convicted under Sections 376/506 IPC. By an order dated 04.01.2013, he was sentenced to undergo RI for seven years with fine Rs. 5,000/- under Section 376 IPC and RI for two years under Section 506 IPC. Both the sentences were to operate concurrently.

(2.) Briefly stated, the prosecution case as set up in the charge- sheet was that on 05.12.2011 in front of Sewa Bharti Dispensary, Mukherjee Nagar, Delhi, the appellant and his associates - Hawai Singh, Sukhbir Singh @ Bhura and Manoj @ Bona kidnapped the prosecutrix 'X' (assumed name) aged around sixteen and a half years out of lawful guardianship of her parents. Thereafter, they all took her in an auto / D.Van to a jungle at Nehru Vihar and committed gang-rape upon her; she was also criminally intimidated by them. Police machinery came into motion when 'X' lodged complaint (Ex.PW-7/A) on 06.12.2011. The Investigating Officer lodged First Information Report making endorsement (Ex.PW-16/A) over it. 'X' was taken for medical examination; she recorded her statement under Section 164 Cr.P.C. Exhibits were sent for examination to Forensic Science Laboratory. Statements of the witnesses conversant with the facts were recorded. After completion of investigation, a charge-sheet was submitted against Shibu (the appellant) alone for commission of offences under Sections 363/376/506 IPC. Hawai Singh, Sukhbir Singh @ Bhura and Manoj @ Bona were summoned by the Trial Court to face trial by an order dated 18.05.2012 exercising powers under Section 319 Cr.P.C. On their appearance, they were also charged for the offences under Sections 363/366/376 (2) (g) /506 IPC. The accused persons pleaded not guilty to the charges and claimed trial. The prosecution examined sixteen witnesses to substantiate its case. In 313 Cr.P.C. statements, the accused persons denied their involvement in the crime and pleaded false implication. After considering the rival contentions of the parties and appreciating the evidence on record, the Trial Court, by the impugned judgment, convicted the appellant - Shibu alone to be the perpetrator of the crime and acquitted Hawai Singh, Sukhbir Singh @ Bhura and Manoj @ Bona of the charges. It is relevant to note that the State did not challenge their acquittal. Being aggrieved and dissatisfied, the appellant - Shibu has preferred the instant appeal.

(3.) I have heard the learned counsel for the parties and have examined the file minutely. Admitted position is that 'X' and the appellant were acquainted with each other before the incident. The appellant lived in her neighbourhood and is her 'chacha' in relation. He is a married man having two children. The prosecutrix was major on the day of incident. School records describing her date of birth 08.07.1996 was collected during investigation. However, the prosecution did not examine any witness from any authorities to prove her date of birth. As per ossification test report (Ex.PX6), age of the prosecutrix was ascertained in between 20 - 22 years. The Trial Court was of the opinion that 'X' was major on the day of incident.