- (1.)BY this appeal the Appellant challenges the judgment dated 28 th November, 2006 wherein the Appellant has been held guilty of offence under Section 376 IPC and the order dated 29 th November, 2006 whereby he has been directed to undergo Rigorous Imprisonment for a period of 14 years and a fine of Rs. 2000/- and in default of payment of fine to undergo further Simple Imprisonment for a period of six months.
(2.)LEARNED amicus curiae for the Appellant contends that the Appellant has been convicted on the allegations of commission of offence of rape on 10th February, 2003 on two minor girls PW1 and PW6 aged 12 years and 11 The alleged incident was reported belatedly on 14 th years respectively. February, 2003. The hymen of PW6 who was aged 11 years was found to be intact and as per PW2 Dr. Shakun Tyagi there was no clinical evidence of rape when she was examined on 14th February, 2003. Though the hymen of PW1 aged 12 years was ruptured however there was no other sign of rape and thus PW3 Dr. Anita after examining the PW1 the prosecutrix in the cross-examination admitted that there was no clinical evidence of rape except hymen being torn. There were no external injuries on the body of either of the two prosecutrix or the Appellant. In case the alleged offence had been committed by the Appellant, it was not possible that there would have been no injuries on the body or the private parts of the Appellant or the two prosecutrix. Admittedly as per the prosecution witnesses PW1, PW4 and PW18, the Appellant was handed over to the Police on 13 th February, 2003 where after he was beaten and implicated in this case. As per PW6 the Appellant was handed over to the Police on 12th February, 2003. The version of the prosecutrix is not corroborated by her teacher PW7. There is no evidence to prove that the semen stains found on the clothes of PW1 and PW6 belonged to the Appellant. Even if the allegations of the prosecutrix are taken on their face value, at best an offence under Section 354 IPC is made out. Reliance is placed on Mohd. Mian Vs. State 37 (1989) DLT 39 and Pappu Vs. State of Delhi 2009 (111) DRJ 313 (DB). It is lastly contended that during the trial, there was violation of the constitutional right of the Appellant as he was not defended by a lawyer. In view of the absence of legal aid, there is no cross-examination of PW12, PW20 and PW21 of which PW20 & PW21 were the investigating officers and thus very crucial witnesses. In Mohd. Hussain alias Zulfikar Ali Vs. State (Govt. of NCT of Delhi) 2012 (2) SCC 584 the two Judge Bench of the Honble Supreme Court relying upon Zahira Habibulla Sheikh Vs. State of Gujarat (2006) 3 SCC 374 held that in case an accused is tried in the absence of lawyer, the same amounts to violation of Article 21 of the Constitution of India. A counsel has to be provided in a substantial and meaningful sense. Legal aid should be given to the accused and not merely offered. Since the two Honble Judges differed in the conclusion, the matter was referred to the larger Bench and in Mohd. Hussain alias Zulfikar Ali Vs. State (Govt. of NCT), Delhi AIR 2012 SC 3860 the three Judge Bench remanded the matter for retrial. Similarly, in Mohd. Ajmal Mohd. Amir Kasab alias Abu Mujahid Vs. State of Maharashtra AIR 2012 SC 3565 the Supreme Court held that even if the accused does not ask for a lawyer or remains silent, the same is not sufficient. The accused must voluntarily make an informed decision. An informed decision is a decision where the Court informs the consequences and the danger of the waiver and it must clearly be noted that the accused understood the consequences of waiver. Reliance is placed on Godinez, Warden Vs. Moran 509 US 389 (1993). On an application moved by the Appellant, the prosecutrix was recalled for examination and despite the counsel being not available for cross-examination, the Appellant was asked to cross-examine the witnesses. Hence the impugned judgment is liable to be set aside on this count itself.
Learned APP on the other hand contends that the testimony of two prosecutrix PW1 and PW6 is consistent. Since the prosecutrix are much below 16 years of age consent is immaterial. As per the FSL report Ex.PW21/A semen stains of Group ,,A were found on the kurta and salwar of PW1, underwear of PW6 and the clothes of the Appellant. Since the hymen of PW1 was ruptured, the same is sufficient to prove that sexual intercourse was committed with her. Further there is no motive attributed for false implication to the two prosecutrix. In the statement of the Appellant recorded under Section 313 Cr.P.C. no defence has been taken and the Appellant has chosen to remain silent. An amicus curiae was offered to the Appellant, however the Appellant specifically refused to take an amicus curiae which is evident from the order dated 1st September, 2006. Hence the Appellant now cannot take the plea that he was denied legal aid. Reliance is placed on Mohd. Hussain alias Zulfikar Ali Vs. State (Govt. of NCT), Delhi AIR 2012 SC 3860 to contend that even if this Court comes to the conclusion that the right of legal aid was denied to the Appellant and he was not in a position to take the informed decision, the matter is required to be remanded back.

(3.)I have heard learned counsel for the parties and perused the record. Briefly the case of the prosecution against the Appellant is that FIR No. 45/2003 under Section 376/354/511 IPC was registered at PS Prasad Nagar on the complaint of PW1 that the Appellant allegedly committed rape on two minor girls PW1 and PW6 aged 12 years and 11 years respectively on 10th February, 2003 in a house at Karol Bagh in the evening hours at 6.00 PM where he was living as a tenant. PW1 the complainant on whose statement the FIR was registered stated that she was studying in 5 th standard and her father was doing the work of repairing of mobiles. On 10th February, 2003 she was in her class when her friend ,,K told PW1 that her uncle gives money to her. PW1 along with ,,K went to the house of her uncle at Bapa Nagar i.e. the Appellant herein. ,,K went inside the house and after some time called PW1. The Appellant asked ,,K to prepare tea, who went outside to fetch milk and thereafter prepared tea for all. The Appellant removed the clothes of ,,K and his own clothes and committed wrong acts with ,,K. Thereafter the Appellant committed the same act with PW1 as he committed with ,,K. The Appellant asked both the girls to wear clothes and handed over Rs. 10 to ,,K and Rs. 5 to PW1. Thereafter they went to their respective homes. For two-three days PW1 did not go to the school. On Thursday when she went to the school her teacher asked why she reached home very late at 7.30 PM on Monday PW1 told the teacher that ,,K had taken her to the house of Appellant and narrated the incident. Parents of PW1 were called through the chowkidar and they were informed about incident by the teacher. PW1 came back to her house with her parents and thereafter all of them went to the house of the Appellant where he was not found and it was found that he was in the factory. The Appellant was apprehended from the factory by the mother of PW1 where he was given beatings and thereafter handed over to the Police. PW1 states that thereafter she was sent back with her maternal uncle from the factory by her mother. On 14th February, 2003 PW1 was first taken to the Police station where enquiries were made and she gave the clothes she was wearing on the date of incident i.e. the school dress consisting of salwar, kamij and underwear. Her statement was recorded as Ex.PW1/B which she signed and her clothes were seized vide memo Ex.PW1/A. She stated that ,,K is also known as ,,P.