RAMESH SARKAR Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) THE instant appeal has been preferred by the convict Ramesh Sarkar from jail assailing the judgment and order dated 21.2.2013 rendered by learned Third Additional Sessions Judge, Udham Singh Nagar (Rudrapur) in Sessions Trial No. 68 of 2011. The said trial pertains to police station Rudrapur, wherein the appellant Ramesh Sarkar was found guilty for the offences of section 376/511 IPC wherefor he has been sentenced for five years' rigorous imprisonment in addition to fine of Rs. 2,000/ -. It appears that the appellant was arrested on the next day of incident on 9.12.2010 and ever -since his arrest, he is in detention.

(2.) ACCUSED /appellant Ramesh Sarkar and father of the prosecutrix reside in close vicinity. Their houses are diagonally opposite, as it appears from the spot map Ex.Ka.4.

(3.) PROSECUTION evidence is based mainly on the testimony of prosecutrix Ms. Usha. She was examined in the court in presence of her mother on 23.1.2013. Learned Trial Judge, in order to assess her capability to understand the nature of questions, prima facie, satisfied itself that she was capable to answer the questions. Having gone through her testimony, it appears that in her deposition, she has not supported the averments, as have been made in the report lodged by her father. In the F.I.R., as has been stated above, the averment has been made that she was playing in a public thoroughfare and the appellant tried to rape her after putting off her undergarments, while in her chief -examination itself, she has narrated her presence in the house of her Mausi (sister's mother). It has further been stated by her that Ramesh (appellant) after holding her hand, took her to his house where none other was present. In his (Ramesh's) house, he removed her underwear. She further deposes that at the time of putting off her underwear she kept mum but soon after the above statement, she has further deposed that the blow of a baton was given on her foot by accused when she was not putting off her underwear. She immediately escaped from the spot. The statement of prosecutrix, by itself, is self -contradictory and does not inspire confidence at all. It reflects that she was not abiding uniformity in her own statement. So looking to the said statement of prosecutrix, it is difficult to assess her capability to understand the nature of questions and to answer them in a proper manner. This Court is mindful that her statement was recorded in presence of her mother, so to an extent, the possibility cannot be ruled out that her deposition was under the influence of her mother.