DEEPAK @ DEEPCHAND Vs. STATE

JUDGEMENT

(1.) Convicted for offences punishable under Sections 363/342/376(2)/323 IPC Deepak @ Deep Chand challenges the impugned judgment dated 4th February, 2016 and the order on sentence dated 6th February, 2016 directing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 8,000/- for the offence punishable under Section 363 IPC, rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- for the offence punishable under Section 342 IPC, rigorous imprisonment for a period of ten years and to pay a fine of Rs. 20,000/- for the offence punishable under Section 376(2) IPC and rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- for the offence punishable under Section 323 IPC.

(2.) Assailing the conviction, learned Counsel for the appellant contends that there is a delay in reporting the matter to Police. Though even as per case of the prosecution, the prosecutrix reached back to her grand-mother on 6th February, 2010 in the morning, however till 7th February, 2010 no PCR call was made and only after informing Bhoop Singh a call was made at 10.17 PM. Further even compliance as mandated under Section 157 Cr.P.C. was not done immediately and the copy of the FIR was received by the learned Metropolitan Magistrate on 11th February, 2010. After the PCR call was made at 10.17 PM on 7th February, 2010 the return information sent by the PCR was that no rape has been committed. Though in the statement of the grand-mother on the basis of which FIR was registered, particulars of the place where the prosecutrix was allegedly raped were not given, however in the Tehrir recorded by the investigating officer it was stated that the offence of rape took place at "Mahender ka Makan". There is no explanation as to how the place of occurrence was added in the Tehrir. Further during the course of investigation, a status report was filed by the Police which was accompanied by the statement of the landlady of the house where the appellant was residing. She stated that the appellant was residing at H.No. 2/420, Shah Alam Band, Jahangir Puri since many years. Thus learned counsel for the appellant seeks to draw an inference that the appellant was not residing at "Mahender Ka Makan". Reliance is placed on the decisions reported as 228 (2016) DLT 162 (DB) Vishal v. State and 2016 LawSuit(Del) 2525 Mohd. Hanif; Mohd. Rafiq; Mirazuddin; Sirazuddin v. State. There are material contradictions and improvements in the statements of the prosecutrix and her grand-mother, thus the appellant is liable to be acquitted.

(3.) Learned APP for the State on the other hand contends that though the sister and uncle of the prosecutrix appeared as witnesses, however they were not cross-examined. Even in cross-examination of the grand-mother though delay was put to her, however she was not asked to explain the reasons for delay in lodging of the FIR. The delay in lodging of the FIR has however been explained by the grand-mother who deposed that after the prosecutrix informed her of the incident, they tried to search the appellant and wanted to confront him, however since he was not available, the facts were informed to Bhoop Singh who made a PCR call. He further states that to challenge the factum of noting "Mahender Ka Makan" as the place of incident, the investigating officer ought to have been cross-examined which was not done and hence now no such plea of the appellant can be entertained. Further mother of the prosecutrix was dropped as a witness as her statement under Section 161 Cr.P.C. was not recorded and Mahender was dropped as he was not traceable. From testimony of the witnesses, facts that the prosecutrix left the home in the afternoon of 5th February, 2010; came back only in the morning of 6th February, 2010 and was picked up by the grand-mother and her sister from the bus stop after information was given by the appellant have been proved beyond reasonable doubt. The alleged improvements in statements of the prosecutrix and her grand-mother are not material in nature and do not go to the root of the matter.