SUNIL KUMAR Vs. STATE OF DELHI

JUDGEMENT

(1.) THE present appeal has been filed against the judgment dated 27.09.1999 and the order of conviction dated 29.09.1999 in case No. 50/1992, FIR No. 179/1991, Police Station Delhi Cantt., filed under Sections 363/307/376 of the Indian Penal Code, 1860 (hereinafter referred to as, "the IPC"). The appellant was convicted under Section 366 of the IPC and sentenced to undergo Rigorous Imprisonment (hereinafter referred to as "RI") for five years and a fine of Rs. 3,000/ - and in default of the payment of fine, the appellant was to undergo simple imprisonment for three months. The appellant was further sentenced under Section 376(2)(f) read with Section 511 IPC, to undergo further RI for seven years, a fine of Rs. 5,000/ - and in default of the payment of fine, simple imprisonment for five months. Both the sentences were to run concurrently and the appellant was to be given benefit under section 428 of the Code of Criminal Procedure, 1973.

(2.) AS per the case of the prosecution, on 12.05.1991, the complainant, Dal Bahadur, along with his daughter (prosecutrix) came to Police Station Dhaula Kuan and got recorded his statement to SI Harish Chand to the effect that he along with his family resides at Quarter No. 13, Dhaula Kuan, Part -1. On 12.05.1991 his wife, Maya, told him that one boy who resides in the neighbourhood had committed bad act with their daughter (prosecutrix). He noticed an injury on the right eye of the prosecutrix and finger prints were also seen on the neck of the prosecutrix. When asked, the prosecutrix told him that on 11.05.1991 she was playing on the road in front of the quarters. Sunil Kumar, who resides at Quarter No. 30, (used to give her toffee) took her towards the bushes, which were at a distance from the quarters. He then removed her salwar and made her lie on the ground and he himself climbed on her. She felt severe pain in her stomach and she shouted. The appellant herein slapped her when she cried loudly. Sunil Kumar, the appellant herein, pressed her neck and she became unconscious. When she regained consciousness, she came to her house and found that her parent had gone to the neighbourhood. She went to sleep. On the next morning, when her mother enquired, she narrated the whole incident to her. SI Harish Chand enquired from prosecutrix, mother of the prosecutrix, who also disclosed the same facts. SI Harish Chand got conducted medical examination of the prosecutrix and a case under Sections 363/376/307 IPC was registered. The prosecution in order to prove its case examined 14 witnesses, and time was sought by defence to produce their evidence which in fact was never led.

(3.) LEARNED Counsel for the appellant submits that the medical evidence placed on record would show that there was no injury on any private part of PW -2. CFSL report also shows that no semen or blood was detected on any part of the case property including the Salwar and underwear. Thus, the case of the prosecution stands completely shattered. Learned Counsel further submits that the statement of the prosecutrix does not inspire confidence. Learned Counsel also submits that as per the evidence of Hansa Dutt Joshi, PW -5, the father of the prosecutrix, PW -3 was his subordinate whereas in his statement the father of the prosecutrix, PW -3, has stated that he does not know any person by the name of Hansa Dutt Joshi. It is further stated that the Trial Court has wrongly relied upon the evidence of PW -5, Hansa Dutt Joshi. It is also submitted that PW -2, prosecutrix, was allegedly wearing a salwar at the time of the incident, but PW -5, has stated that she was wearing a frock and nicker at the time of the incident. Even otherwise, it is submitted that the sentence awarded by learned Trial Court, is highly excessive, unreasonable. The appellant was 18 years of age at the time of the alleged incident and no previous convictions have been proved against the appellant. The appellant is the sole bread earner of the family and has no other person in his family to support his old parents, besides his elder brother, who is mentally unsound.