Umesh Giri v. State

judgment.

¶28No order as to costs.

I.S.MEHTA, J

(JUDGE)

S.MURALIDHAR, J (JUDGE)

NOVEMBER 01, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 1st November, 2017 7. + CRL.A. 683/2017 UMESH GIRI ..... Appellant Through: Mr. Aditya Vikram, Adv. versus STATE ..... Respondent Through: Mr. Radhika Kolluru, APP. SI Amit Kumar, P.S. IP Estate. 8. + CRL.A. 814/2017 EHSAAN ..... Appellant Through: Ms. Inderjeet Sidhu, Adv. versus STATE ..... Respondent Through: Mr. Radhika Kolluru, APP. SI Amit Kumar, P.S. IP Estate. CORAM: JUSTICE S.MURALIDHAR JUSTICE I.S.MEHTA I.S.Mehta, J (Oral) 1. Before us are the appeals, i.e. CRL.A. 683/2017 & CRL.A. 814/2017, for setting aside the impugned judgment on conviction dated 07.06.2017 and order on sentence dated 09.06.2017 passed by the learned Additional Sessions Judge/SFTC-2, (Central), Tis Hazari Courts, Delhi in case No. 28971/2016 in FIR No.411/2016 under Section 376-D IPC registered at police station I.P. Estate, New Delhi wherein the appellants are convicted for the offence committed under Section 376-D IPC. 2. The brief facts placed before us, are that, on the basis of the information received vide DD. No. 5PPJPN, Ex-PW6/A, Sub- Inspector Manoj along with Constable Satish reached the spot near Mata Sundari College gate, and met the victim 'S' and the caller (Benami) of the DD. No. 5PPJPN. Consequently, after making the enquiry an FIR No. 411/2016 under Section 376-D IPC was registered at Police Station I.P. Estate. The accused Umesh Giri who was caught hold by the said caller, was handed over to SI Manoj at the spot and the victim 'S' also identified one of the rapist at the spot, i.e. Umesh Giri. A women Constable was called at the spot and the victim 'S' disclosed that two men committed rape on her person and one of them is accused Umesh Giri. The victim 'S' was sent for medical examination to the LNJP Hospital where the medical examination of the victim 'S' was conducted vide MLC No. EDI 010954 and later her statement was recorded. 3. The accused person Umesh Giri was interrogated and during the interrogation he admitted his guilt and made disclosure statement consequently, the co-accused Ehsaan too was interrogated and arrested, he too admitted his guilt. 4. Thereafter, after completion of the investigation, charge-sheet under Section 173 Cr.P.C. was filed before the Court below. Subsequently, on 04.11.2016 charge under Section 376-D IPC was framed against the appellants/accused. 5. Both the appellants/accused persons did not prefer to lead defence evidence. Consequently, the learned Additional Sessions Judge/SFTC-2, (Central), Tis Hazari Courts, Delhi vide judgment on conviction dated 07.06.2017 convicted the appellants for the offence under Section 376-D IPC and vide order on sentence dated 09.06.2017 sentenced the appellants to undergo Rigorous Imprisonment for life in case No. 28971/2016 in FIR No.411/2016 under Section 376-D IPC registered at police station I.P. Estate, New Delhi. 6. The appellants aggrieved from the aforesaid judgment on conviction dated 07.06.2017 and order on sentence dated 09.06.2017 preferred the present appeals on the following grounds:- i. That the Court below went wrong in material facts placed on record. ii. That the PW8-Benami witness is an interested witness and his statement could not be relied upon in absence of examination of public witnesses. iii. That PW2-Prosecutrix 'S' was planted under a conspiracy hatched by the PW8 for extortion of money. iv. That IO failed to prepare the site plan at the instance of the victim 'S'. v. That there is no external injury found on the person of the victim 'S'. vi. That the prosecution failed to discharge its case beyond reasonable doubt and the prosecution case suffers from material contradiction. 7. The learned counsel for the appellants has submitted that the appellants have not committed rape on the person of the victim. The MLC of the victim, i.e. Ex.PW2/A, gives a different story. 8. The learned counsel for the appellants has further submitted that there is a material contradiction between the