Mahinder & Anr v. State(Nct of Delhi)

judgment.

(MANOJ KUMAR OHRI) JUDGE

August 8th , 2019 na

* IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A. 549/2015 Reserved on : 22.07.2019 Date of Decision : 08.08.2019 IN THE MATTER OF: MAHINDER & ANR ..... Appellants Through: Mr. Sumeet Verma and Mr. Mahinder Pratap Singh, Advocates for appellant No.1 Mr. Biswajit Kumar Patra, Advocate for appellant No.2 versus STATE (NCT OF DELHI) ..... Respondent Through : Ms. Manjeet Arya, APP for State CORAM: HON'BLE MR. JUSTICE MANOJ KUMAR OHRI 1. The present proceedings are instituted challenging the judgment of conviction dated 19.12.2014, passed by ASJ-01(West), Tis Hazari Courts, Delhi arising out of SC No.28/13 in FIR No.84/10 registered under Sections 363/368/342/376 (G) IPC at P.S. Hari Nagar, Delhi whereby the appellants were convicted for an offence punishable under Section 376 (2) (g) IPC and vide order on sentence dated 22.12.2014, the appellants were directed to undergo RI for ten years each with a fine of Rs.5,000/- each, in default of which, the appellants were directed to undergo SI for a further period of fifteen days. The benefit of Section 428 Cr.P.C. was granted to the appellants. 2. The facts of the prosecution, as noted by the trial court, are: "In brief, the case of the prosecution is that on 26.3.10 Shri Manish Pandey, the father of the prosecutrix aged about 13 years, lodged the missing report of the prosecutrix. On the basis of that missing report, the FIR has been registered. During investigation, on 27.3.10 the prosecutrix was recovered from the house of the accused Mahender and Smt. Sheela at Tilangpur, Kotla Vihar, Phase-I, Delhi. The police recorded the statement of the prosecutrix and also got recorded her statement U/S 164 Cr.P.C.. The prosecutrix was got medically examined from DDU Hospital. The prosecutrix in her statement alleged that on 23.3.10 at Dukh Niwaran Temple, she was ganged rape by the accused persons namely Mahender and Vinay Mishra. She was forcibly taken by the accused Mahender to his house and where she was wrongfully confined by the accused Smt. Sheela, who is the mother of the accused Mahender. On 27.3.10, the accused persons Vinay Mishra and Mahender were arrested. On 21.4.10, the accused Smt. Sheela surrendered in the court and she was arrested with the permission of the court. Accused persons were got medically examined from DDU Hospital. 2. After investigation of the case, the police has filed the charge-sheet U/s 363/368/342/376 (G) IPC against the accused persons. Charge U/s 376 (2) (g) IPC has been framed against the accused Mahender Singh and Vinay Mishra and a charge U/s 368 IPC has been framed against the accused Mahender Singh and Smt. Sheela. The accused had pleaded not guilty to the charges". 3. During the trial, the prosecution examined a total of 17 witnesses. The prosecutrix was examined as PW-1. Dr. Rishi and Dr. Yogendra Nath Maurya were examined as PW-3 and PW-6 respectively to prove the MLC of the prosecutrix. Dr. Ajay Sharma (PW-9) proved the MLC of the accused Mahinder and Vinay Mishra. Dr. Sushma Setia (PW-2), Principal from Sarvodaya Vidhayala, Hari Nagar proved the age of the prosecutrix on the basis of the school records. Mr. Manish Pandey, father of the prosecutrix was examined as PW-16. 4. The other witnesses, who were examined, were police officials associated with the various parts of the investigation. MATERIAL WITNESSES 5. Dr. Sushma Setia, Principal from Sarvodaya Vidhayala, Hari Nagar appeared as PW-2 and proved the school record of the prosecutrix as Ex.PW2/A to Ex. PW2/D. As per the school record, the date of birth of the prosecutrix is 02.06.1997. The incident had taken place on 23.03.2010. As such, the prosecutrix was aged about 13 years of age on the day of the incident. 6. The prosecutrix was examined as PW-1. She deposed that she was 13 years of age and was studying in class 8th in Sarvodaya Vidhyalaya, Clock Tower, Hari Nagar, Delhi. She deposed that on 23.03.2010, she has gone with her father to a park where she met her friend, Shivani. Thereafter,