MOHIT Vs. STATE (GOVT OF NCT OF DELHI)

JUDGEMENT

(1.) Convicted for offences punishable under Section 365/366/376 IPC, Mohit challenges the impugned judgment dated July 22, 2015 and the order on sentence dated July 28, 2015 directing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- each for offences punishable under Sections 365 and 366 IPC and rigorous imprisonment for a period of ten years and to pay a fine of Rs.20,000/- for offence punishable under Section 376 IPC.

(2.) Assailing the conviction, learned counsel for Mohit contends that the age of the prosecutrix has not been proved. Neither Sarju Devi nor the person issuing the certificate with respect to the date of birth of the prosecutrix was examined. The report of ossification test was withheld by the prosecution thus adverse inference is required to be drawn. There is no scientific evidence to prove that the prosecutrix was raped. The prosecutrix only alleged that she was forcibly abducted. No evidence has been produced by the prosecution to corroborate the version of the prosecutrix. No site plan of the place where alleged rape was committed has been prepared. Only the site plan of the place where alleged incident of abduction took place has been prepared vide Ex. PW-19/B. The prosecutrix was under duress when her statement was recorded in the Trial Court on 2nd September, 2011 and the learned Trial Court also recorded that she was reluctant in speaking. Thereafter, on 7th October, 2011, she deposed as per the prosecution case. The love affair between the appellant and the prosecutrix has been admitted by the parents of the prosecutrix. Lastly, it was submitted that when the prosecutrix was allegedly taken away from her school, no alarm was raised by her, which proves that there was no enticement.

(3.) Per contra learned APP for the State submits that as per the MLC Ex. PW-5/A, there was swelling over labia majora with slight bleeding. Further, as per the testimony of PW-12 Dr. Nilanchali Singh, the hymen was deflorate and during her cross examination she stated that the possibility of recent coitus could not be ruled out. With respect to the age of the prosecutrix, as per the Juvenile Justice (Care and Protection of Children) Rules, the age is to be considered as per the certificate from the school first attended. Thus, ossification test was not required to be conducted. The prosecutrix being a minor, her consent, if any, was immaterial. The appellant in his statement under Section 313 Cr.P.C. admitted that he had love affair with the prosecutrix. The prosecutrix has categorically stated that she was enticed and raped.