Partap Singh vs State
1991 Latest Caselaw 202 Del

JUDGMENT

S.C. Jain, J.

(1) The facts giving rise to this appeal are that on 27.7.87,at about 3 p.m. Partap Singh, hereinafter called the appellant, committed rape on Kumari Suman aged about 5 years, at his house in Prem Nagar, Nangloi,Delhi. He was prosecuted for the said offence under Section 376 Indian Penal Code and the Add Session Judge who tried the case found him guilty of the said offence and convicted him under Section 376 Indian Penal Code by his judgment dated 28.4.89. After giving an opportunity of hearing on the point of sentence, learned Add Sessions Judge sentenced him to Ri for seven years by order dated 29.4.1989.

(2) Aggrieved, this appeal has been filed by the appellant. Ms. UshaKumar, learned counsel for the appellant argued that the appellant has been falsely implicated in this case on account of some enmity between the appellant and the parents of the prosecutrix. The charge under Section 376 Indian Penal Code against the appellant has not been proved beyond reasonable doubt. Mere fact that the prosecutrix was seen bleeding from her vagina just after the alleged incidents not sufficient to establish that rape was committed on the prosecutrix by the appellant. The prosecutrix who appeared as a witness as Public Witness 9 has not mentioned about any sexual intercourse with her by the appellant. The act of penetration is most essential ingredient of the offence of rape. She pointed out that there are material contradictions in the statements of the prosecutionwitnesses, namely, Meena, Public Witness 7,Pritam Singh, Public Witness 2, and Suman the prosecutrix Pw 9. Shivaji, Public Witness 3, father of the prosecutrix was not present at the time of the alleged incident. On the basis of the evidence available on record the appellant cannot be convicted under Section 376 IPC. The act of penetration should have been proved along with the presence of semen on the sexual organs of both the appellant and prosecutrix and on their undergarments. The absence of semen as per the report of Cfsl indicates the innocence of the appellant.

(3) The argument of the counsel for the appellant is devoid of force.Rape has been defined under Section 375 of the Indian Penal Code. Punishment for rape has been laid down under Section 376 IPC. A man is said to commit rape except in the cases as mentioned in Section 375, as sexual intercourse with a woman under circumstances falling under any of the six description mentioned therein. To prove the act of rape four ingredients are essential, namely, (i) the act of sexual intercourse with a woman in question, (ii) act was done in the circumstances falling under any of the five descriptions specified in Section 375,(iii) that such a woman was not the wife of the accused; or if she was his wife,she was under 15 years of age, and (iv) there was penetration. In this case,admittedly the age of prosecutrix was five years and she was a minor of tenderage. The medical report of the prosecutrix Ex. Public Witness 13/A clearly points out that she was subjected to rape. She was examined on the same day, i.e.27.7.1987. The medical report of the appellant also shows that he was capable of doing sexual intercourse. Dr. R.K. Sharma, Public Witness Ii, has proved this report and he further stated that on examination of the appellant some injuries were found on his body. Besides this report, the fact that prosecutrix was bleeding from her vagina stands established from the statements of Pritam Singh, Public Witness 2,Meena sister of the prosecutrix PW7, Nimmi, PW8, and Suman Prosecutrixherself, Public Witness 9. It is also on the record that the underwear (Ex. P 3) which the prosecutrix was wearing at that time and the underwear (P 2) which the appellant was wearing at that time were taken in possession vide memo Ex.PW 2/C and Public Witness 2/B and these were found to be blood stained and from the report of the Cfsl the blood group of both these underwear was found to be of group B. From the statement of the witnesses examined by the prosecution,Pritam Singh, Public Witness 2. Shivaji, Public Witness 3, Jai Narain, Public Witness 6, Meena, Public Witness 7, Nimmi,PW 8, Suman, Public Witness 9, Dr. R.K. Sharma, Public Witness 11 and the medical report of the prosecutor Ex. Public Witness 13/A and that of the appellant Ex. Public Witness 11/A and the report of the CFSLEx.PW 12/E and Public Witness 12/F, if stands clearly proved that the appellant was residing in front of the house of the prosecutrix and on 27.7.87,the date of incident, the appellant asked the prosecutrix to bring a glass of water for the appellant inside his room. where he committed sexual intercourse with her which resulted in bleeding from the vagina of the prosecutrix. In such circumstances it cannot be said that there was no act of penetration in this case.She was a minor giRI of tender age, i.e. about five years and she is not expected to know about the sexual intercourse and its consequences. But the fact, which is proved on record is that the appellant had sexual intercourse with the minorities of five years resulting in bleeding from her vagina. This is a barbarous act which the appellant has committed while commiting rape on this innocent giRI of five years. The trial Court has correctly appreciated the documentary as well as oral evidence on record and I do not find any infirmity in the order of the trial Court. The witnesses examined by the prosecution are reliable witnesses and there is no reason as to why they should depose falsely against the appellant. Not a single question was put in the cross-examination that they have got any enmity with the appellant or that on that account they have deposedfalsely. The statement of the prosecutrix stands corroborated from the statements of other witnesses examined in the case. When soon after the incident, the witnesses found the underwear of the prosecutrix stained with blood it was not necessary for the lady doctor to take smear from her vagina to see if sperm could be found. She was a girl of only five years and was seen having bleeding from her vagina just after the incident. What more is needed to prove this offence of rape on the part of the appellant, has not been explained by the counsel for the appellant ? The trial Court has correctly appreciated the oral as well as the documentary evidence while convicting the appellant for the offence under Section 376 Indian Penal Code and I find no justification in interfering with the judicious finding of the trial Court on this count and I confirm the same.

(4) On the point of sentence also, the appellant deserves no leniency.When the offence of rape is proved and that too on the giRI of a tender age, the sentence of imprisonment should be imposed with severity. For an offence under Section 376 Ipc, the accused can either be punished with imprisonment for life or imprisonment of either description which may extend up to 10 years.Sentencing the accused to undergo Ri for seven years by the trial Court cannot be said to be severe and it is proportional to the offence which he has committed.I confirm the finding of the trial Court on the point of sentence also. With these findings I dismiss this appeal.