DEVANAND @ DEVA Vs. STATE

JUDGEMENT

(1.) By the present appeal, Devanand @ Deva challenges the impugned judgment dated 31st August 2016 convicting him for the offences punishable under Sections 452/328/376 IPC in FIR No. 62/2015 registered at PS Karawal Nagar and the order on sentence dated 29th September 2016 directing him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- and in default whereof to undergo simple imprisonment for a period of two months for the offence punishable under Section 376 IPC , undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,500/- and in default whereof to undergo simple imprisonment for a period of thirty days for the offence punishable under Section 328 IPC and undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,500/- and in default whereof to undergo simple imprisonment for a period of thirty days for the offence punishable under Section 452 IPC.

(2.) Assailing the conviction, learned counsel for the appellant has taken defence of false implication as the complainant and her husband demanded loan from the appellant which he refused. It is contended that before lodging the complaint to the police, husband of the complainant made a call to the appellant and the said fact has been accepted by the complainant and her husband in their cross-examinations. It is further contended that DD No. 59B dated 16th January 2015 records that a man with his family is lying in unconscious condition. However, the husband of the complainant admitted that he went to his place of work on 16th January 2015 and that he made a call to the appellant on the same night. It is further contended that as of 27th January 2015 eight samples were sent to FSL for examination and five samples were sent back by FSL under objection. The objection raised has not been put on record. The investigating officer stated that she does not remember anything about the said objections. Therefore, the possibility of tampering cannot be ruled out.

(3.) Per contra, Learned APP for the State submits that during the cross-examination of husband of the complainant, suggestion was made on behalf of the appellant that the appellant established physical relation with the complainant with her free will and consent and the consent of her husband. Therefore, the fact that the appellant had sexual intercourse with the complainant is not disputed. He further contended that semen was detected on the samples and clothes of the complainant that were sent for examination to FSL. He stated that on examination the gastric lavage of the complainant, her husband and the Frooti bottle were found to contain Ethyl Alcohol. There being sufficient evidence to corroborate the statement of the prosecutrix, the appeal be dismissed.