DEEPAK RAI Vs. STATE ( GNCT OF DELHI)

JUDGEMENT

(1.) This criminal appeal is directed against the judgment dated 17/07/2013 and order on sentence dated 22/07/2013 of Additional Sessions Judge passed in Sessions Case No.143/11 arising out of FIR No.191/11 PS Mayur Vihar whereby appellant herein was convicted under Section 376/377 Indian Penal Code. He was sentenced to undergo rigorous imprisonment for a period of ten years with fine of Rs.2,000/ -. In default of payment of fine he was directed to undergo Simple Imprisonment for a period of two months for offence under Section 376 IPC. For the offence under Section 377 IPC he was sentenced to undergo rigorous imprisonment for a period of five years with fine of Rs.1,000/ -. In default of payment of fine he was directed to undergo Simple Imprisonment for a period of one month. Both the sentences were ordered to run concurrently. Benefit of Section 428 Cr.P.C. was given to the convict. The gravamen of prosecution case, succinctly stated is as under: -

(2.) The main thrust of assailing the impugned judgment by learned counsel for the appellant is on the testimony of the prosecutrix where in pursuance to a question put to her, she has deposed that the accused did not remove his clothes. Based on this statement, it was vehemently argued by the learned counsel for the appellant that if the accused did not remove his clothes there was no question of penetration which is sine qua non for offence under Section 376 IPC as prevailing at that time. Counsel submits that, at the most, the allegations may attract the provisions of Section 354 IPC. When the offence in question took place, the maximum sentence prescribed for offence u/s 354 IPC was five years. The appellant is languishing in jail for more than five years. As such, he be sentenced to the period already undergone.

(3.) Per contra, learned Additional Public Prosecutor for the State submits that for commission of rape, it was not necessary for the appellant to remove all his clothes. The factum of commission of rape stands established from the testimony of prosecution duly corroborated by the medical as well as scientific evidence. Under the circumstances, the impugned judgment does not suffer from any infirmity. Moreover, the accused had taken a plea of alibi which however, was not proved by him. Under the circumstances, the appeal deserves dismissal.