SHARWAN Vs. STATE

JUDGEMENT

(1.) Sharwan challenges the impugned judgment dated 21st Dec., 2015 convicting him for offences punishable under Sec. 363/366/376 Penal Code and the order on sentence dated 22nd Dec., 2015 directing him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000.00 for offence punishable under Sec. 363 IPC, rigorous imprisonment for a period of three years and to pay a fine of Rs.2,000.00 for offence punishable under Sec. 366 Penal Code and rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,000.00 for the offence punishable under Sec. 376 IPC.

(2.) Assailing the conviction, learned counsel for the appellant submits that initially the complaint was of molestation only, however, later on, allegations of rape were levelled which are clearly afterthought. He further added that the prosecutrix had herself stated in her deposition in Court that she resided in a thickly populated area and if anyone raises alarm, it can be easily heard. Thus, it is highly improbable that despite her shouting to save nobody came to her rescue. Further, despite identifying the car and its driver, she stated that she cannot give the number of the car as she was illiterate. During her cross-examination, she could not state whether Sharwan or someone else was driving the car. As per the MLC of the prosecutrix, her version of forcefully taking her and committing rape upon her is not fortified as there was no external injury. Lastly, it is contended that the appellant has been falsely implicated in the present case due to dispute over the jhuggi. Placing reliance on the decision reported as (2012) 7 SCC 171 Narender Kumar Vs. State (NCT of Delhi), it is submitted that it is not the duty of the defence to explain how and why the accused has been falsely implicated, rather the prosecution case has to stand on its own legs and cannot take support from the weakness of the defence. Statement of the prosecutrix has to be read with the other evidence in totality and when the story projected by the prosecutrix is highly improbable, it should not be believed. Referring to the decision reported as (2010) 4 SCC 115 Jai Krishna Mandal Vs. State of Jharkhand wherein the appellant was falsely implicated due to deep enmity between the family of the prosecutrix and appellants and there was ample opportunity for the prosecutrix to raise hue and cry but she did not attempt to do so and there was no injury on the prosecutrix, learned counsel contends that the appellant be acquitted.

(3.) Learned APP for the State on the other hand submits that as per the testimony of PW-6 Devender Kaur, the car was used by Sharwan which was further fortified by the fact that the keys of the car were given by PW-5 Munni Devi, mother of Sharwan. Age of the prosecutrix has been proved by the testimony of Dr. Akansha who opined the same to be between 15 to 17 years. Version of the prosecutrix is corroborated by the testimony of Dr. Komila, who found that the hymen of the prosecutrix was freshly torn. Lastly, with respect to the dispute over the jhuggis, no question was put to the prosecutrix in her cross examination.