Suresh vs State
2010 Latest Caselaw 4410 Del

          *              IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                 Date of Reserve: September 9th, 2010

                                Date of Order: September 20, 2010

                               + Crl. Appeal No.104 of 1996
%                                                                          20.09.2010

         Suresh                                                   ...Appellant

         Versus

         State                                                    ...Respondents

Counsels:

Mr. O.P. Aggarwal for appellant
Mr. Sunil Sharma, APP for respondent/State.


         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?


                                           JUDGMENT

1. The present criminal appeal under Section 374 of Chapter XXIX for

Cr.P.C. has been preferred by appellant against the judgment dated 4 th May,

1996 passed by learned Additional Sessions Judge, Delhi convicting the

appellant for the offence under Section 376 IPC.

2. Brief facts relevant for the purpose of deciding the present appeal are that

the appellant was living in the neighbourhood of complainant. On the day of

incident i.e. 6th May, 1986, the complainant was sitting with her one and a half

Crl. Appeal No.104 of 1996 Suresh v State Page 1 Of 5 year old daughter just outside the house. The appellant came to her and took

complainant's daughter in his lap. Since he was a neighbour, she had no reason

to suspect. However, the appellant took her daughter to his room at first floor and

after about half an hour, he came back with the crying girl. The girl was weeping

bitterly at that time. The mother of the girl asked the appellant as to why she was

crying, on which the appellant replied that she had fallen down from his hand and

received injuries. The appellant, leaving behind the daughter of complainant,

went away. Since the girl was weeping very bitterly, she inspected the body of

her daughter to find out where she had received injuries and found that the

underwear of her daughter was soaked with blood and the blood was oozing out.

She removed underwear of her daughter and found that blood was coming out

from her vaginal orifice. The husband of the complainant was not at home at that

time. She being a village woman did not immediately rush to the police station but

on the next day after return of her husband, she went to the police station and

lodged a report. The girl child was immediately taken to the hospital for medical

examination where she was examined and doctor opined that the injuries on the

vaginal orifice were caused by penetration of fully-developed adult penis. The

vaginal orifice was found lacerated and the tender areas were found raw and

injured. There was evidence of sperms in the vagina of that child. The MLC was

proved as Ex.PW4/A. The appellant/accused was also examined at Swami

Dharmand Hospital on 8th May, 1986 and his medical examination also revealed

that there was abrasion of 3 cm over the glan on 7 o'clock position. The

underwear of the appellant and the victim were seized by the police and sent for

forensic examination. The report Ex. PB shows that human semen was detected

on both the underwear i.e. of the minor girl as well appellant. The complainant

Crl. Appeal No.104 of 1996 Suresh v State Page 2 Of 5 herself i.e. mother of the minor girl had appeared in the court as PW-3 and

testified that the appellant had taken her daughter from her to his house upstairs

and within 28/30 minutes, he came back with her daughter crying and weeping

very loudly and on enquiry from the appellant, she was told by the appellant that

she (victim) had fallen from stairs. However, on examination of her body she

found her bleeding profusely from her vaginal orifice. The only suggestion given

to this witness was that she had made false statement against the appellant due

to enmity and she wanted to entangle the father of the appellant in her fold and

since she failed, she falsely implicated the appellant. However, dewar of

complainant appeared as PW-1 and testified that on the evening of 6th May,

1986, the complainant had come to him and narrated the incident and thereafter

a report was lodged to the police station when the husband of the complainant

came. The suggestion given to this witness was that the complainant i.e. mother

of the victim child, was about 10 year younger to her husband and she wanted to

develop illicit relations with the appellant and on his refusal he was falsely

implicated in this case. In statement under Section 313 Cr.P.C, the appellant had

taken the stand that the complainant i.e. mother of the victim girl wanted to have

sexual relations with the appellant but since he did not oblige, he was falsely

implicated. To every other piece of evidence, the answer has been identical 'it is

incorrect'.

3. The learned Sessions Judge after considering the entire oral evidence and

medical evidence had come to conclusion that it was a case of rape of one and a

half year child at the hands of appellant. The medical evidence showed split

laceration of vagina and the opinion of the doctor that this injury was caused due

Crl. Appeal No.104 of 1996 Suresh v State Page 3 Of 5 to penetration of fully erected penis and the oral testimony of witness leaves no

doubt about commission of crime by the appellant.

4. In appeal, the contention of counsel for the appellant is that he was falsely

implicated by the complainant. Another stand taken by the appellant is that at the

time of incident, the age of the appellant was below 18 years and, therefore, he

was a juvenile. It is also submitted that there was no eye witness to the rape and

the circumstantial evidence produced by the prosecution was not sufficient to

prove the guilt of the appellant. It is further submitted that the medical evidence

placed on record was not admissible as a proof of rape. I think all these pleas

raised by the appellant must fail. In fact, perusal of trial court record would show

that the case of the appellant was first sent to Juvenile Justice Court and that is

how the appellant was granted bail in such a heinous crime within 15 days. It is

only when the complainant made a complaint before the Chief Justice that the

appellant was not a juvenile and an inquiry into his case was conducted and the

case transferred to the Sessions Court. Even as per the appellant's own

admission he was 16 years and 5 months of age at the time of commission of

crime. As per the prevalent law, in 1986, a person below 16 years of age only

was considered a juvenile and was to be tried before the Juvenile Court. It is only

in 2000 that the new Juvenile Justice Act came into force and the age of the

juvenile was increased from 16 to 18 years. A report to this effect sent by learned

Additional Sessions Judge, Shahdara to the learned District & Sessions Judge is

available on record. This matter was also brought before this Court vide the

Criminal Misc Petition 1658 of 1988 for cancellation of bail of the appellant

wherein this Court considered that the appellant was not a juvenile, below 16

Crl. Appeal No.104 of 1996 Suresh v State Page 4 Of 5 years of age and he was not entitled to be tried before the Children Court.

5. The case of the appellant was proved at trial beyond reasonable doubt.

The medical evidence and the oral evidence prove it beyond reasonable doubt

that the appellant committed rape on a tender age girl of one and a half year. I

find no force in this appeal. The appeal is hereby dismissed.

6. The appeal stands dismissed.

September 20, 2010                            SHIV NARAYAN DHINGRA, J
rd




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