JUDGMENT

S.P. Garg, J. Aggrieved by a judgment dated 01.08.2006 of learned Addl. Sessions Judge in Sessions Case No.24/2006 arising out of FIR No.454/2001 PS Kamla Market by which the appellant-Rakesh Ranjan Verma was convicted for committing offences under Sections 376/342 IPC, the present appeal has been filed by him. By an order dated 04.08.2006, he was sentenced to undergo RI for seven years with fine Rs.10,000/- under Section 376 IPC and RI for one year with fine Rs.1,000/under Section 342 IPC. Both the sentences were to operate concurrently.

2. The case in brief as stated in the charge-sheet was that on the night intervening 16/17.12.2001 at about 03.00 a.m. the appellant committed rape upon the prosecutrix `X' (changed name) after wrongfully confining her at his jhuggi No.C-51/R-126, Thomson Road, Railway Colony, Delhi. The police machinery was set in motion on 18.12.2001 and the Investigating Officer lodged First Information Report after recording victim's statement (Ex.PW-1/A). `X' was medically examined; she recorded her 164 Cr.P.C. statement. The accused was arrested. Statements of the witnesses conversant with the facts were recorded. Exhibits collected during investigation were sent to Forensic Science Laboratory for examination. Upon completion of investigation, a charge-sheet was filed against the appellant in the Court. The prosecution produced thirteen witnesses to prove its case. In 313 Cr.P.C. statement, the appellant denied his involvement in the crime and pleaded false implication. Sushil Kumar Sahni appeared in defence as DW-1. The trial resulted in his conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been preferred.

3. I have heard the learned counsel for the parties and have examined the file. Appellant's counsel urged that the Trial Court did not appreciate the evidence in its true and proper perspective. Material contradictions and infirmities in the statements of the witnesses were overlooked without cogent reasons. Initially, in her complaint (Ex.PW1/A), the victim had not alleged if she was subjected to rape. Later on, she deviated from her earlier version and Section 376 IPC was added in the FIR. `X' even had attempted to implicate CRPF officials to have ravished her and the victim's father had taken her to the `camp' where she was asked to identify the perpetrator of crime. The FSL report (Ex.PW-3/A) does not implicate the appellant as no sperms were seen in vaginal smear. It was emphasized that `X' was above 16 year of age on the day of incident and as per the ossification report her age was in between 17-18 years. `X' had alleged that at the time of commission of rape, string of her salwar was broken. However, when the `salwar' was produced before the Court, the string was found intact. `X' did not suffer any injury on her private organs. The appellant had got no opportunity to make submissions before the Trial Court at the time of final disposal due to absence of his lawyer. Learned Addl. Public Prosecutor urged that `X' was below 16 years of age as her date of birth was 12.10.1986 as proved by PW-10 (Harish Chander). `X' had no ulterior considerations to falsely implicate the appellant.

4. Admitted position is that `X' and the appellant were acquainted with each other before the occurrence. The appellant lived in the neighbouring jhuggi in the same locality. The occurrence took place on the night intervening 16/17.12.2001 after `X' had gone at around 03.00 a.m. to answer call of nature outside her jhuggi. It is alleged that the appellant dragged her to his jhuggi and after wrongfully confining her committed rape upon her against her wishes. On perusal of the statements of the various witnesses examined by the prosecution, it can be inferred with certainty that the physical relations between `X' and the appellant (if any) in the jhuggi were consensual. After `X' had left her jhuggi at around 03.00 a.m. purportedly to answer the call of nature, she did not