RAJESH KUMAR TIWARI Vs. STATE

JUDGEMENT

(1.) THIS is an appeal against the judgment dated 27 th July, 2006 and order on sentence dated 28 th July, 2006, whereby the appellant was convicted under section 376 of IPC and was sentenced to undergo R. I. for 7 years and to pay a fine of Rs. 2,000/- or to undergo S. I. for two months, in default.

(2.) THE case of the prosecution, as disclosed in the FIR lodged by the prosecution, is that on 2nd April, 2004 at about 10. 30 PM, when the prosecutrix and her younger sister were coming from a hotel after taking food, the appellant, who used to sell cassettes near Hanuman temple, Connaught Place, slapped the sister of the prosecutrix as well as the prosecutrix and took her to a park behind the temple. After removing his pant and underwear and salwar of the prosecutrix, he committed rape with her. When the prosecutrix raised alarm on account of pain, one Rajesh Kumar from Prayas, an NGO having an office there, reached there and the appellant, who was trying to run away from the spot, was apprehended.

(3.) THE prosecutrix came in the witness box as PW-8 and stated that she along with her younger sister used to indulge in begging and live on the footpath of hanuman Mandir, Connaught Place, since her parents died about three years prior to this incident, and her grandmother brought her to Hanuman Mandir and left after dropping them there. This witness was cross-examined by the learned addl. PP and during cross-examination, she initially denied that when she along with her sister was coming from the hotel at about 10. 30 PM, the appellant slapped her sister and took her to the park behind temple, but later she admitted that the appellant had slapped her as well as her younger sister and had taken her to the park behind the temple and in the park, he had committed sexual intercourse with her after removing her salwar as well as his pant and underwear. She also admitted that as she felt pain on account of the bad act done by the appellant with her, she raised alarm and the appellant was apprehended by Rajesh Kumar and others, who reached there on account of the alarm raised by her. She also admitted that she as well as the appellant were taken to the Police Station and she, thereafter, was taken to the hospital and was medically examined. She also admitted that her statement was recorded before Metropolitan Magistrate. She further admitted that being afraid of the appellant, she did not identify him, but later on identified him before the Court. During cross-examination by the learned defence counsel, she stated that the appellant had taken her to the park behind the temple. She denied the suggestion that no bad act was done with her. Thereafter, this witness was again cross-examined by the learned Addl. PP and she stated that on the day of this incident, the appellant was apprehended on the spot by Rajesh Kumar of Prayas. She specifically admitted that the appellant was seen by her earlier also and he had done bad act with her. During cross-examination by the learned defence counsel, she denied the suggestion that by bad act means relationship of brother and brother. She also denied the suggestion that the appellant had not done any bad act with her and that she had implicated him in a false case. She, however, admitted that her statement recorded by the police had been read over to him.