STATE (NCT OF DELHI) Vs. JATA SHANKAR

JUDGEMENT

(1.) Aggrieved by a judgment dated 03.02.2010 of learned Addl. Sessions Judge in Sessions Case No.123/08 arising out of FIR No.343/05 PS Najafgarh whereby the respondent was acquitted of the charge, the State has preferred the instant appeal which is contested by the respondent.

(2.) Briefly stated, the prosecution case as stated in the charge sheet was that on 18.05.2005 at about 09.45 p.m. at House No.RZ-105, SBlock, New Roshanpura, Najafgarh, the respondent committed rape upon the prosecutrix ‘X’ (changed name) aged around 35 years. Incident was reported to the police and Daily Diary (DD) No.40-A came into existence at 22:15 hours at P.S. Nazafgarh. The Investigating Officer after recording victim’s statement (Ex.PW-1/A) lodged First Information Report. ‘X’ was medically examined; she recorded her 164 Crimial P.C. statement. The accused was arrested and medically examined. Exhibits collected during investigation were sent to Forensic Science Laboratory for examination. Upon completion of investigation, a charge-sheet was filed against the appellant in the Court. The prosecution examined 11 witnesses. In 313 Crimial P.C. statement, the accused denied his involvement in the crime and pleaded false implication. He examined DW-1 (Hukam Chand) and DW-2 (Mahender Nath Tiwari) in defence. The trial resulted in respondent’s acquittal. Being aggrieved and dissatisfied, the State has filed the instant appeal.

(3.) I have heard the learned counsel for the parties and have examined the file. Admitted position is that the victim aged around 35 years was mother of two grown up children who were sleeping in the tenanted room at the time of incident. The appellant was aged around 63 years and had let out the tenanted room to the victim about 8/10 days prior to the incident. The occurrence had taken place at the respondent’s room where he used to stay. The prosecution case is primarily based upon solitary statement of the prosecutrix which does not find corroboration from any other independent sources. The occurrence took place at around 09.45 p.m. and the prosecutrix was medically examined promptly at 02.15 a.m. at Rao Tula Ram Memorial Hospital. No visible external injury whatsoever was found on her body including private parts. The respondent was not named in the alleged history recorded therein. There were no struggle or violence marks on her body to infer forcible rape. Nothing has come on record to show if the prosecutrix who was a young lady of 35 years had offered resistance to the alleged sexual assault committed by an old man aged around 63 years. The exhibits collected during investigation were sent to Forensic Science Laboratory for examination. However, these do not corroborate victim’s version. The prosecutrix claimed that after the sexual assault, the respondent had discharged. In that eventuality, there was every possibility of the respondent’s clothes to have stained with ‘semen’. However, in the FSL report (Ex.PW-11/C), no semen could be detected on Ex-5-A (Respondent’s Lungi) and Ex.-5-B (Respondent’s Underwear). It was not ascertained if spermatozoa found on Ex-1 (Victim’s Salwar) and Ex-2 (Two glass slides said to be vaginal smears) was that of the appellant. No independent witness was associated at any stage of investigation. It has come on record that number of tenants used to occupy the nearby rooms. However, none of them was joined in the investigation.