Rajesh vs State Of Delhi
2013 Latest Caselaw 846 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : February 04, 2013
                                DECIDED ON : February 20, 2013

+                                CRL.A.No.598/2000

       RAJESH                                  ..... Appellant
                           Through : Mr.M.L.Yadav, Advocate.

                           Versus

       STATE OF DELHI                        ..... Respondent
                    Through : Mr.M.N.Dudeja, APP for the State.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Rajesh impugns his conviction in Sessions

Case No.66/1999 arising out of FIR No.188/99 registered at Police Station

Mansarover Park by which he was found guilty for committing offence

under Section 376 IPC and sentenced to undergo RI for ten years with fine

of `5,000/-.

2. Allegations against the accused were that on 09.08.1999 at

10:30 A.M. at house No.C-26, Gali No.13, Nathu Colony, Shahdara,

Delhi, he committed rape upon „X‟ (assumed name) aged about three

years. The prosecution examined 11 witnesses. In his statement under

Section 313 Cr.P.C. the accused pleaded innocence. He stated that he was

falsely implicated as X‟s father was compelling his mother to sell their

house to enable them to extend and rebuilt their house. On appreciation of

the evidence and considering the rival contentions of the parties by the

impugned judgment the accused was convicted and sentenced. Being

aggrieved, the accused as preferred the present appeal.

3. Contention of the learned counsel for the appellant is that the

Trial Court did not appreciate the evidence and documents on record in its

true and proper prospective and fell in grave error to base its conviction

on the sole testimony of X‟s mother. She did not claim that the

prosecutrix was sexually assaulted. She did not clarify what she meant by

„gandi baat‟. No injuries were found on the body of the prosecutrix. Her

hymen was intact. At the most, it could be a case under Section 354 IPC

i.e. outraging the modesty of the child. No independent public witness

was associated at any stage of the investigation. Learned Additional

Public Prosecutor urged that the conviction does not call for any

interference. There was no delay in lodging the report. Statement of the

mother of the prosecutrix has been corroborated by medical evidence.

4. I have considered the submissions of the parties and have

examined the record. The case of the prosecution is based upon

circumstantial evidence. „X‟ was not examined under Section 161 Cr.P.C.

Her statement under Section 164 Cr.P.C. was also not recorded. She was

not produced in the court as she being a child was unable to understand

the questions put to her and give rational answers. PW-6 (Kamlesh), „X‟s

mother, did not witness the occurrence.

5. The incident took place on 09.08.1999 at about 10:30 A.M.

Daily Diary (DD) No.10/A (Ex.1/C) was recorded at 12:05 noon at Police

Station M.S.Park on getting information that a child aged three years was

raped and the person who had committed it was apprehended. The

investigation was assigned to Head Constable Gyanender who with

Constable Narender reached the spot and met „X‟ and her mother. The

accused was also present there. „X‟ was taken to hospital for her medical

examination. Statement of Kamlesh, „X‟s mother, was recorded and Head

Constable Gynender lodged First Information Report after preparing

rukka (Ex.PW-1/A) at 02:30 P.M. There was no delay in lodging the First

Information Report. In her statement (Ex.PW-6/A), Kamlesh gave

detailed account as to how and under what circumstances Rajesh

committed rape upon „X‟. Since the rukka was sent promptly there was

least possibility of false fabrication.

6. PW-6 Kamlesh is a crucial witness. In her statement before

the Court, she deposed that Rajesh was the son of her husband‟s maternal

uncle. On 09.08.1999 at about 10:30 A.M. she was present in the room on

the ground floor. The accused went to the roof of her house for taking

kite. While going upstairs, he took „X‟ with him and returned after five

minutes. Her daughter came down weeping. She consoled her daughter

and inquired why she was weeping. She told her that Rajesh committed

rape (uske saath gandi baat ki hai). At the first instance, she failed to

understand. She again asked „X‟ who repeated the same. Thereafter, she

went upstairs and saw that bed sheet of the double bed in the bed room

was lying folded/scattered. „X‟ told her that Rajesh had done „gandi baat‟

on the said double bed sheet. She immediately checked the under-

garments of her daughter and found a little blood on it. She came down

and went to the house of the accused and caught hold of him. She

informed PCR at 100 number. She handed over his custody to police.

Her statement (Ex.PW-6/A) was recorded. In the cross-examination, she

disclosed that her daughter was three years old and used to speak without

fluency (tutlakar). She used to understand what she said but others could

not. She explained that on finding blood stains on the undergarments of

the child, she doubted that the accused had committed rape. She denied

that they wanted to purchase the house of the accused and due to enmity,

she implicated him.

7. On scrutinizing the testimony of the prosecutrix‟s mother, it

reveals that no material discrepancies have emerged to discard her

version. No ulterior motive was attributed to her for falsely implicating

the accused. Nothing has come on record that the relations between the

accused and the family of the „X‟ were hostile on any issue. On the day

of incident PW-6 (Kamlesh) had permitted the accused to go upstairs of

her house to get kite. She had not restrained her „X‟s to accompany him.

Apparently, she did not doubt the evil design of the accused. The accused

was last seen with the child and within five minutes, the child sustained

injuries on her body. During this period „X‟ remained in the company of

the accused and none else intervened. It was for the accused to explain

under Section 106 of the Evidence Act as to how and under what

circumstances the child sustained injuries on her private organ. The

accused did not offer any explanation. PW-6 was specific that soon after

the occurrence, „X‟ told her that the accused had done „gandi baat‟ with

her. She explained that by „gandi baat‟ she meant „rape‟. Material facts

deposed by Kamlesh remained unchallenged and uncontroverted in cross-

examination.

8. The prosecutrix was medically examined at 01:45 P.M.

MLC (Ex.PW-8/A) mentions that the child was brought with the alleged

history of rape at 10:30 A.M. Name of the accused to be the perpetrator of

the crime also finds mention. In the MLC (Ex.PW8/A), the doctor noticed

„laceration at the fourchette'.. PW-8 (Dr.Savita) proved the MLC

prepared by her. She fairly stated that hymen was intact and the patient

was not bleeding. She further admitted in the cross-examination that

laceration wound could be caused because of fraction on any rough

surface like cot. The child was in the company of the accused when she

got laceration at fourchette. The accused did not explain as to how „X‟

got laceration on fourchette. As per Modi‟s „A Textbook of Medical

Jurisprudence And Toxicology 24th Edition‟, "the fourchette and posterior

commissure are not usually injured in cases of rape, but they may be torn

if the violence used is very great. The extent of injury to the hymen and

the genital canal depends upon the degree of disproportion between the

genital organs of both the parties and the violence used on the female. In

small children, the hymen is not usually ruptured, but may become red

and congested along with the inflammation and bruising of the labia. If

considerable violence is used, there is often laceration of the fourchette

and the perineum." There is thus no inconsistency between the oral and

medical evidence. As per CFSL report (Ex.PW10/D-1, D-2 and D-3)

human semen „AB‟ group was detected on Ex.3b (Pant) which proved that

the accused had discharged at the time of committing the act. Blood was

detected on Ex.1 (underwear), Ex.3a [one T-Shirt (Banian)], Ex.5 (bed

sheet). The report of Central Forensic Science Laboratory is in complete

consonance with the statement of the prosecutrix‟s mother. There is no

substance in the submission that no sexual intercourse took place with the

child. The fact that hymen was intact is not determinative either way. It

cannot be said that no such act had taken place because hymen was intact.

Intercourse in this case was with a small child aged three years. There

might not be full penetration. Even a slight penetration in the vulva is

sufficient to constitute the offence of rape and rupture of the hymen is not

necessary.

9. I have no reasons to discard the statement of „X‟s mother

who had no ulterior motive to falsely implicate the accused who was their

relative and with whom they had no animosity. Her testimony appears

truthful and trust-worthy being without any embellishments and

exaggerations. Her own daughter was ravished and her honour was at

stake. It is improbable that „X‟s parents would set up such a false case for

alleged trivial benefit to buy the property of the accused. In the light of

the above discussion, I am of the view that the conviction of the accused

is based upon fair and cogent appraisal of the evidence and no interference

is called for. The appeal lacks merit and is dismissed. The conviction and

sentence of the appellant are maintained. The appellant is directed to

surrender and serve the remainder of his sentence. For this purpose, he

shall appear before the Trial Court on 27.02.2013 The Registry shall

transmit the Trial Court records forthwith to ensure compliance with the

judgment.

(S.P.GARG) JUDGE February 20, 2013 sa