Kishan Lal vs State
1999 Latest Caselaw 1081 Del

ORDER

M.S.A. Siddiqui, J.

1. This appeal is directed against the order of conviction and sentence passed by the Additional Sessions Judge, Shahdara in Sessions Case No. 20/98 convicting the appellant under Sections 376/ 377/ 506 IPC. The appellant has been sentenced for seven years under Section 376 IPC and a fine of rupees five thousand or in default to undergo further rigorous imprisonment for one year, for five years rigorous imprisonment under Section 377 IPC and a fine of rupees two thousand or in default to undergo further rigorous imprisonment for six months and one year rigorous imprisonment under Section 506 IPC and a fine of rupees one thousand or in default to undergo further rigorous imprisonment for two months.

2. Briefly stated, the prosecution case is that the appellant is the step-father of the prosecutrix, Kumari Rajani, (PW-1), aged 10 years. As per prosecution case, the appellant repeatedly committed rape on the prosecutrix. Further, occasionally he used to have carnal intercourse against the order of the nature with the prosecutrix on several occasions. The appellant also criminally intimidated the prosecutrix. On 7.7.1997, the prosecutrix lodged the FIR at the Police Station Welcome. Investigation pursuant to the said FIR culminated into submission of a charge-sheet under Sections 376/377/506 IPC against the appellant. On challan being filed, the charges under Sections 376/377/506 IPC were framed against the appellant.

3. The appellant abjured his guilt and alleged that a false case has been foisted on him. He has not examined any witness in support of his defense. On assessment of the evidence adduced by the prosecution, the learned Additional Sessions Judge convicted the appellant under Sections 376/377/506 IPC and sentenced him as indicated above.

4. Assailing validity of the impugned order of conviction and sentence, learned counsel for the appellant has contended that the prosecutrix Kumari Rajani, (PW-1) and Smt. Saroj (PW-3) have not supported the prosecution case and the learned Additional Sessions Judge has committed a Patent illegality in convicting the appellant. In my opinion, the aforesaid submission of the Learned counsel merits acceptance. The prosecution has mainly relied on the evidence of prosecutrix Kumari Rajani (PW-1) and her mother Smt. Saroj (PW-3). Surprisingly, Smt. Saroj (PW-3) has not supported the prosecution case and she has been declared hostile by the prosecution. Nothing has been elicited in her cross-examination to show or suggest that either she was hostile to the prosecution or intimidately connected with the welfare of the appellant. Eliminating the evidence of Smt. Saroj (PW-3) there remains the sole testimony of the prosecutrix Kumari Rajani (PW-1). In her evidence in chief, she has supported the prosecution case but in her cross-examination she has unequivocally admitted that since the appellant had threatened to oust her from his house, she had concocted a false case against him. In my opinion, the aforesaid admission of the prosecutrix knocks the bottom out of the prosecution case. Unfortunately, the learned Additional Sessions Judge has over-looked the said admission of the prosecutrix and unjustifiably accepted the prosecution case. However, in view of the aforesaid admission of the prosecutrix, the impugned order of conviction and sentence cannot be sustained in law.

5. For the foregoing reasons, the appeal is allowed and the impugned judgment and order of conviction and sentence is set aside. The appellant is acquitted of the offence charged under Sections 376/377/506 IPC. The appellant is in custody, he be set at liberty forthwith, if not wanted in any other cause. Fine, if paid, shall be refunded to the appellant.