Rajesh Tiwari v. State

SANGITA DHINGRA SEHGAL, J. ___ September, 2017 gr//

IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 727/2014 Judgment reserved on 05th September, 2017 Judgment pronounced on 15th September, 2017 RAJESH TIWARI ..... Appellant Through: Mr. Vikas Padora, Advocate Versus STATE ..... Respondent Through: Mr. Mukesh Kumar, APP for the State. CORAM: HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL CRL.A. 727/2014 1. The present appeal has been instituted by the appellant under Section 374 of the Code of Criminal Procedure, 1973, (hereinafter referred as "Cr.P.C.") against the impugned judgment dated 24.09.2012 and order on sentence dated 28.09.2012 passed by the Court of ASJ, Rohini Courts, Delhi, (FIR No. 75/2011, P.S. Aman Vihar, New Delhi), whereby the Appellant was convicted under Section 376(f) and 506 of The Indian Penal Code, 1860 (hereinafter referred to as "IPC") and for the offence punishable u/s 376(f) IPC, he has been awarded rigorous imprisonment of ten years and a fine of Rs.20,000/-, and in default of fine, to further undergo six months simple imprisonment. Further, the convict was also sentenced for three years rigorous imprisonment with a fine of Rs.5000/- for offence punishable under Section 506 IPC, in default of fine, he shall further undergo simple imprisonment for three months. 2. The case of the prosecution as observed by the Trial Court vide its order dated 24.09.2012 is that: - "………..at about 12 noon she was playing holi in the street , when her maternal uncle hereinafter called as Mausa (husband of her mother sister) asked her to bring milk and called her to his house for bringing dolchi (a kind of utensil used to carry milk) and when she reached at his Mausa house and was about to lift the dolchi, her Mausa bolted the Kundi of the door, she asked him that, " what he has done", her mother will search her", on which her Mausa slapped her and thereafter took her into kitchen, where he forcefully removed her jeans panty and kachi (underwear) and also removed his pant and got naked. She tried to raise alarm, but he pressed her mouth and thereafter forcefully committed wrong act (galatkaam) after lying down her on the mattress (gudri) on the floor of kitchen. After committing wrong act he threatened her that if she disclose anything, then he will lift her and her parents. Thereafter, she came back to her house and did not tell anything as she was afraid and her mother was also not well. She further stated that she was feeling pain in her private parts and blood was coming out when her mother woke up, she told entire incident to her mother. Her mother called one Sunita (Riste ki mausi) and thereafter, her maternal uncle (Mama) took her to the hospital." 3. During trial, the prosecution relied upon sixteen witnesses. The statement under Section 313 Cr.P.C. were recorded wherein the appellant denied all the incriminating circumstances appearing in evidence against him and claimed to be falsely implicated in the case. 4. After considering the evidence on record and the contentions of the parties, the Trial Court held the appellant guilty for the offences under Sections 376 (f) and 506 IPC. Hence, the present appeal. 5. Mr. Vikas Padora, counsel for the appellant challenged the impugned judgment being perverse, based on conjectures and surmises and is not properly supported by the evidence/material on record; that there are material contradictions in the statements of the prosecutrix and the Trial Court has erred in relying on the testimony of the Prosecutrix which culminated in the conviction of the appellant; that there were material contradictions in the testimonies of other prosecution witnesses which had been ignored; that the blood stain which was found on the alleged mattress (Gudri) was never proven by the prosecution to be that of the appellant; that the appellant has been falsely and erroneously implicated in the present case by the family members of the appellant's wife, as the marriage was a love marriage and was solemnised against their (wife's family) will; tha