MAHENDER Vs. STATE
LAWS(DLH)-2013-9-379
HIGH COURT OF DELHI
Decided on September 23,2013

MAHENDER Appellant
VERSUS
STATE Respondents

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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