RAJ KUMAR @ ROCKY Vs. STATE

JUDGEMENT

(1.) The appellant though charged for offences punishable under Sections 363/506/377/376/511 Penal Code has been convicted by the learned Trial Court for offences punishable under Sections 376/511 Penal Code vide the judgment dated 15th May, 2002 and directed to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 10,000.00 in default whereof to undergo rigorous imprisonment for six months vide order on sentence dated 17th May, 2002.

(2.) Contention raised by learned counsel for the appellant is that the false implication of the appellant in the above-noted case is evident from the case of the prosecution itself, which is further fortified by the material discrepancies in the statement of prosecution witnesses. After having tortured the appellant, he was falsely implicated in the above-noted case. Even as per the finding of the learned Metropolitan Magistrate, the appellant was less than 18 years at the time of alleged incident and is thus entitled to the benefit of being a juvenile in terms of the decision of the Supreme Court reported as (2009) 13 SCC 211 Hari Ram Vs. State of Rajasthan & Anr.. Even if this Court believes that there is no false implication, the appellant is liable to be convicted at best for offence punishable under Sec. 354 Penal Code and released on probation.

(3.) Case of the prosecution is based on a written complaint given by the father of the prosecutrix PW-4 vide Ex.PW-4/A received at 7.30 PM on 25th Oct., 1998 for an incident of 23rd Oct., 1998 resulting in registration of FIR No.447/1998. In the written complaint father of the prosecutrix who was a Havaldar stated that on 23rd Oct., 1998 around 2.00 PM when he went from his office to his residence he asked his wife about the whereabouts of his daughter who told her that she had left the house a while ago. When he asked his wife to call the daughter and she was not found, both of them went out in search of her. Since the minor daughter was not found in any of the houses, he shouted taking the name of his daughter and went to the bus stand also but did not find his daughter. When he went back to his house he found one boy coming down from the stairs hurriedly and his daughter also came down from the stairs. He saw Shiv Veer Singh running after that boy to catch hold of him. He immediately realized that the said boy had done something wrong with his daughter. His wife also shouted to catch hold of the boy, however the said boy ran towards the drain and with the help of the Chowkidar he caught hold of the boy beyond the drain. While apprehending the boy tried to run away, he fell down resulting in injuries to him. He brought back the boy to the flat where his daughter informed that the boy had asked her as to who stayed on the roof and she should show him. The boy slapped the girl and closed her mouth. On the roof, the boy took out the underwear of the girl and rubbed his private part on her private part. He thereafter put his penis in her mouth and took out white fluid. The prosecutrix stated that the boy had a knife with him and had told her that if she shouted he would slit her neck. She further stated that the boy told her that she should come downstairs only after he moves away to some distance. It was further stated that initially the FIR was not registered because he thought that the same would bring ill-fame to him and his family.