MAHESH KUMAR Vs. STATE

JUDGEMENT

(1.) THIS order shall dispose of the aforesaid appeal filed by the appellant under Section 374 Cr. P. C. against the judgment dated 15. 05. 2007 and order of sentence dated 19. 03. 2007 passed by additional Sessions Judge, New Delhi in S. C No. 54/2006 arising out of FIR No. 942/2005 under Sections 363/376 IPC at P. S. Okhla industrial Area (OIA), whereby the Ld. ASJ held the appellant guilty for kidnapping and committing rape under sections 363 and 376 of ipc and has been imposed punishment of R. I for a period of 3 years besides payment of fine of Rs. 500/- or in default of payment of fine to further undergo S. I. for one month for the offence under Section 363 IPC. Appellant has also been sentenced to undergo RI for 7 years with fine of Rs. 1,000/- and in default to undergo SI for two months under Section 376 IPC. Benefit of Section 428 of Cr. P. C. has also been extended to the appellant.

(2.) THE case was registered on the basis of the statement made by complainant Ajay Kumar, father of the prosecutrix, who in his complaint Ex. PW5/a disclosed that on 02. 11. 2005 at 6. 15pm due to holiday at his office, he was present at his house. At about 5. 45pm, accused Mahesh residing in his neighbourhood took his daughter "x" (assumed name) aged about 4 1/2 years on the pretext for play. He was under the influence of liquor. After some time, complainant found his daughter missing. He then searched for her and came to know that the accused had taken his daughter towards liquor shop. While searching the prosecutrix there he came to know from his cousin Raj kumar that accused Mahesh had taken his daughter towards the ridge. Thereafter, he along with his brother hurriedly rushed towards the ridge and heard the cries of the prosecutrix behind the bushes. They reached there running and saw the accused committing rape on the person of the prosecutrix. When he raised alarm, the accused fled away from there after putting on his pant. However, he with the help of his brother caught hold him at some distance. The complainant further disclosed that blood was oozing out from the private parts of the prosecutrix. He then telephoned to the police at 100. CATS ambulance reached at the spot and took "x" to AIIMS. On that basis, FIR was registered and the appellant was taken into custody in this case.

(3.) DURING the course of investigation prosecutrix was medically examined and her MLC Ex. PW7/a was prepared by Dr. Charu later on proved by Dr. Deepika Verma who appeared as PW7. In the alleged history, there is specific mention of sexual assault on the prosecutrix. According to her, vaginal tear bleeding was found positive. Vaginal Smear could not be taken as the prosecutrix was bleeding profusely. After the completion of investigation, the challan was filed by the Police. The Magistrate committed the same to the Court of Sessions. The learned ASJ framed the charges vide order dated 16. 02. 2006 against the appellant, under Sections 363/376 ipc to which the appellant pleaded not guilty and claimed trial. The prosecution in order to prove its case has examined 11 witnesses, namely, PW1 Raju, PW2 Raj Kumar, PW3 ASI Om Praksh, PW4 Ct. Sanjeev Kumar, PW5 Ajay Kumar, PW6 Dr. Shalini Girdhar, PW7 Dr. Deepika Verma, PW8 H. C Manohar, PW9 Ct. Bhikambar, PW 10 Ct. Shaukender Pal and PW12 ASI Shanti. In his statement under section 313 Crpc, the appellant denied his involvement in the commission of the offences as alleged. He raised a plea that he has been falsely implicated in the case but has not led any defence evidence.