JUDGEMENT
MUKTA GUPTA -
(1.)THE Appellant impugns the judgment dated 2nd July, 2010 whereby he has been convicted for offence punishable under Section 376 IPC and the
order on sentence dated 3rd July, 2010 directing him to undergo rigorous
imprisonment for a period of 7 years and to pay a fine of Rs. 1000/- and in
default of payment of fine to further undergo simple imprisonment for 15
days.
(2.)LEARNED counsel for the Appellant contends that the FIR was an afterthought doctored version lodged at the instance of the mother of the
prosecutrix to grab the property of the Appellant. Material witness i.e. Raj
was not examined. The statements of the defence witnesses have not been
considered by the learned Trial Court. Despite the fact that the prosecutrix
was a minor, no injury was found either on the body or on the private parts
of the prosecutrix or that of the Appellant. Recovery of articles like slacks
of the prosecutrix is doubtful, as when the same was produced in the Court
the same was in cut condition. Gadda, blanket and setti were not seized.
Though the mother of the prosecutrix stated that blanket was recovered,
however the same was not produced in the Court. In the statement under
Section 164 Cr.P.C. the prosecutrix stated that she was raped on 8 th August,
2007 whereas as per the FIR she was allegedly raped on 9 th August, 2007. PW10 Shri Sanjay Jindal stated that he recorded the statement correctly and
thus the date of incident is doubtful. The prosecutrix thus completely
demolished the case of prosecution. Further her statement is not
corroborated either by the medical evidence or by her mother i.e. PW4's
statement. The prosecutrix admitted in her cross-examination that after the
alleged incident she came back home and told her sister about the said act,
while her mother had gone to see a house on rent along with the Appellant.
Prosecutrix further stated that after her mother came back along with the
Appellant, his wife and sister-in-law also came to house and left after some
time which is a very unnatural course of conduct. The prosecutrix further
stated that when she reached the house, her mother was present there and had
left after some time. The Appellant came to take her mother to show her the
room. She further stated that the Appellant reached her house after 5-6
minutes of her reaching the house and thereafter her mother left with the
Appellant happily. The slacks of the prosecutrix which is a very vital piece
of evidence had no semen stains on it as per the FSL report. There is
discrepancy with regard to the blue cloth, as some witnesses state that there
was one cloth and the others say that there were two clothes. It is also not
known from where the cloth was recovered. The conduct of the mother is
quite unnatural as she states that she slept normally in the house and it is
only after consultation with her relatives she made a complaint to the Police
on 10th August, 2007. There is discrepancy as to when the statement
resulting in registration of FIR was recorded. Admittedly the mother of the
prosecutrix had given betadine vaginal wash to the prosecutrix as was noted
by PW5 Dr. Chabi Shukla. The defence witnesses DW4 stated that he had
seen the prosecutrix and her mother in the market on the day of alleged
incident dated 9th August, 2007 while purchasing the vegetables. The
prosecutrix and her mother have not supported the prosecution case with
regard to manner and time of registration of FIR, conducting of MLC, arrest
of Appellant, seizure of the cloth and slacks. The mother of the prosecutrix
PW4 stated that all papers were signed at Police Station and not at the place
of arrest nor at the place where the cloth was seized. The residential area of
the Appellant is widely populated however no public witness was associated
at the time of arrest. The constable who went to arrest the Appellant has not
been examined. The defence witness clearly stated that the Appellant was
detained in Police Station. PW4 denied that the Appellant was arrested in
her presence. In view of the material contradictions and improvements, the
impossibility of the prosecution version and false implication being writ
large, benefit of doubt be extended to the Appellant.
Learned APP for the State on the other hand contends that PW3 the prosecutrix has clearly stated that the Appellant wiped off the fluid with the
cloth. This cloth was duly seized by seizure memo Ex. PW4/A on 10 th
August, 2007 and as per the FSL report Ex.PX the same had semen stains on
it. There is no discrepancy in the seizure of blue colour cloth and merely by
witnesses saying that two pieces of clothes were seized, the recovery cannot
be shrouded in mystery. The prosecutrix who was a minor clearly deposed
about the act of the Appellant which falls within the definition of rape.
There are no contradictions in the testimony of the witnesses and the version
of the prosecution witnesses is not impossible.
(3.)HEARD learned counsel for the parties and perused the record. Briefly the case of the prosecution based on the statement of the prosecutrix PW3
aged 11 years is that she was living with her mother and two elder sisters and
her mother PW4 used to treat the Appellant as her brother. Her mother
wanted to shift from the house they were living on rent and thus she sent the
prosecutrix to call the Appellant at about 7.15 PM on 9 th August, 2007. The
prosecutrix returned to her house weeping. She was not able to walk
properly. On enquiry she informed her mother that the Appellant had raped
her. After discussions with her relatives PW4 informed the Police which
information was recorded vide DD No. 14A Ex. PW-9/A at 11.40 hours on
10th August, 2007 in Police Station Sarai Rohilla. The same day statement of the mother of the prosecutrix was recorded as Ex. PW-1/A on the basis of
which FIR was registered. The prosecutrix was medically examined and
vaginal swab with the undergarment of the victim were seized. The
investigating officer went along with the prosecutrix and her mother to the
spot i.e. the factory of the Appellant which was found locked. The wife of
the Appellant was called at the spot to open the lock of the factory. While
searching of the factory premises where the alleged rape took place was
being conducted, the investigating officer recovered two clothes pieces of
blue colour allegedly used by the Appellant after committing rape for wiping
his private parts and semen on the person of the prosecutrix. The same were
seized vide memo Ex.PW4/A. On 11th August, 2007 the Appellant was
apprehended from Daya basti at the instance of the complainant. The
Appellant was medically examined and his blood sample was taken vide
memo Ex.PW9/D. The statement of the prosecutrix was recorded under
Section 164 Cr.P.C. wherein she reiterated her version made to the Police.
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