MUNNA Vs. STATE

JUDGEMENT

(1.) Vide the judgment dated November 21, 2014 Munna has been convicted for the offences punishable under Sections 376 and 363 IPC and directed to undergo rigorous imprisonment for a period of 10 years and a fine of Rs.15,000/ - for offence punishable under Section 376 IPC and rigorous imprisonment for a period of 7 years and a fine of Rs.7000/ - for offence punishable under Section 363 IPC vide order on sentence dated November 25, 2014.

(2.) Learned counsel for the appellant challenging the conviction contends that in the statement recorded under Section 164 Cr.P.C. when the girl was in the protective custody and on satisfaction by the learned Magistrate, there is no allegation whatsoever of any kind either in regard to kidnapping or rape. However, in the testimony recorded before the Court the prosecutrix has made material improvements. The prosecutrix has given an entirely new version in the statement before the Court and thus the same cannot be relied upon. There is no corroboration to the statement of the prosecutrix for the reason when the MLC of the prosecutrix was prepared she refused to undergo gynecological examination. The motive for false implication is apparent from the testimony of Bhagwan Das PW -2 the father of the prosecutrix who stated that the appellant was a tenant in his house and the cross -examination of the prosecutrix who admitted that Munna was a tenant in their house and did not pay rent for seven to eight months. Though it is the case of the prosecution itself that the appellant with the prosecutrix was apprehended at Lakhimpur, no record whatsoever of the said apprehension has been produced. Further this version fortifies that the so -called arrest of the appellant at ISBT Anand Vihar was shown falsely. Even accepting that the prosecutrix was a minor at the time of the incident, there is no material on record whatsoever to show that appellant committed the offence of rape or kidnapping.

(3.) Learned APP on the other hand contends that the prosecutrix in her statement before the Court has clarified that when her statement under Section 164 Cr.PC was recorded she was under pressure and thus non - implication of Munna in her statement under Section164 Cr.P.C. would not render the deposition of the prosecutrix in the Court nugatory. To prove the age of the prosecutrix, prosecution examined PW -7 Ms.Suman Goswami the teacher of the concerned school who produced the admission register Ex.PW -7/A, copy of admission form Ex.PW -7/B and the copy of the school leaving certificate of the previous school Ex.PW -7/C which documents prove the date of birth of the prosecutrix to be December 20, 1994 and thus on the date when the prosecutrix left the home i.e. August 28, 2009 her age was 14 years and 8 months. Thus, her consent, if any, is immaterial.