ANAND Vs. STATE

JUDGEMENT

(1.) The appellant -Anand @ Balli Ram impugns a judgment dated 29.10.2004 of learned Additional Sessions Judge in Sessions Case No. 10/2003 arising out of FIR No. 402/2001 PS Chanakya Puri by which he was held guilty for committing offence punishable under Sec. 376 IPC. By an order dated 30.10.2004, he was sentenced to undergo Rigorous Imprisonment for seven years with fine Rs. 4,000/ -.

(2.) Briefly stated the prosecution case as reflected in the charge - sheet was that on 21.11.2001 at about 10.30 p.m. in the jhuggi cluster of Indira Camp, Bapu Dham, Chanakya Puri, the appellant along with his associate Dinesh Kumar @ Tillu (since acquitted) kidnapped/abducted the prosecutrix 'X'(changed name) and committed gang -rape upon her in the house belonging to Usha. The incident was reported to the police promptly. PCR van on receipt of a call through wireless at 11.11 p.m. went to the spot; local police also arrived there. After recording victim's statement (Ex.PW -2/A), the Investigating Officer lodged First Information Report. 'X' was medically examined. The appellant was arrested from Usha's shop soon after the incident whereas accused Dinesh Kumar @ Tillu succeeded to flee the spot. During investigation, statements of witnesses conversant with the facts were recorded. Exhibits collected during investigation were sent to Forensic Science Laboratory for examination. Despite best efforts, Dinesh Kumar @ Tillu could not be arrested and was declared Proclaimed Offender. A charge -sheet was filed against the appellant for commission of offences under Ss. 366/376 IPC. During pendency of trial, Dinesh Kumar @ Tillu was arrested and a supplementary charge -sheet was filed against him. In order to establish its case, the prosecution examined eleven witnesses. In 313 statements, the accused persons denied their involvement in the crime and pleaded false implication. DW -1 (Usha) appeared in defence. The Trial Court after considering the rival contentions of the parties and on appreciation of the evidence acquitted Dinesh Kumar @ Tillu of the charges. It is apt to note that the State did not challenge the said acquittal. Being aggrieved and dissatisfied, the appellant has preferred the instant appeal.

(3.) In the written submissions Ld. Counsel for the appellant urged that the Trial Court did not appreciate the evidence in its true and proper perspective. There were material lapses in the investigation by the Investigating agency; the crime spot was not visited and its photographs were not taken. The prosecution did not produce and examine material witness Maya Devi, victim's mother -in -law present along with the prosecutrix at the time of arrival of PCR at the spot. Non -examination of PW Raju, who had allegedly seen the prosecutrix 'unconscious' at the crime spot was not examined. 'X' did not suffer any visible external injuries on her body including private parts. FSL reports (Ex.PW8/F1 and Ex.PW -8/F2) did not connect the appellant with the crime. The prosecutrix has given divergent versions and at one stage filed an 'affidavit' stating that no such incident had taken place. Statement under Sec. 313 Cr.P.C. came to be recorded mechanically.