MAHESH KUMAR @ TAPKA Vs. STATE

JUDGEMENT

(1.) Present appeal is directed by the appellant - Mahesh Kumar @ Tapka against a judgment dated 04.01.2011 of learned Addl. Sessions Judge in Sessions Case No. 88/09 arising out of FIR No. 189/09 PS Pahar Ganj whereby he was convicted for committing offences punishable under Sections 363/376/506 IPC. By an order dated 06.01.2011, he was sentenced to undergo various prison terms with fine.

(2.) Briefly stated, the prosecution case as reflected in the charge-sheet was that on the night intervening 07/08.08.2009 at about 000 a.m. the appellant kidnapped the prosecutrix 'X' (assumed name) aged around 13 years from the lawful custody of her parents and thereafter committed rape upon her after criminal intimidation. PW-9 (Sanjay) in his testimony before the Court informed that on the night intervening 07/08.08.2009 at around 01.00 or 01.30 a.m. after hearing the voice of a girl weeping, he came outside and saw 'X' standing there. He enquired from her as to what had happened. 'X' went to her garage without disclosing anything. He did not inform the police fearing that he himself might be implicated in the case. PW-2 (Jagdish Chand) when came to know about the incident of commission of rape made a telephone call at 100 from Mobile No.9278835514 on 08.08.2009 at about 10.00 a.m. DD No.9A (Ex.PW-11/A) came into existence and the investigation was assigned to ASI Vedwati who along with Const. Nanak Ram reached the spot. The Investigating Officer after recording victim's statement (Ex.PW-8/A) lodged report under Sec. 363 IPC. 'X' was medically examined; she recorded her 164 Crimial P.C. statement. Sections 376 and 506 were added in the FIR. During further investigation, the accused was arrested and medically examined. Statements of the witnesses conversant with the facts were recorded. Upon completion of investigation, a charge-sheet was filed against the appellant in the Court. In order to establish its case the prosecution examined sixteen witnesses. In 313 Crimial P.C. statement, the appellant denied his involvement and pleaded false implication in the crime. The trial resulted in conviction as aforesaid. Being aggrieved and dissatisfied, the present appeal has been preferred by him.

(3.) I have heard the learned counsel for the parties and have examined the file. Learned counsel for the appellant urged that the Trial Court did not appreciate the evidence in its true and proper perspective and overlooked vital infirmities and inconsistencies in the statements of the prosecution witnesses. Initially, the complainant had not lodged any report regarding commission of rape and FIR was under Sec. 363 Penal Code only. The victim had not implicated the appellant by name and had denied to have any acquaintance or familiarity with him. There is a considerable delay in lodging the FIR under Sec. 376 IPC. 'X, a child witness has not presented true facts and conviction based upon her sole testimony is highly risky. Learned APP urged that the statement of the prosecutrix cannot be ignored in the absence of any prior animosity or ulterior motive.