Dinesh vs State (Nct) Of Delhi
2013 Latest Caselaw 386 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : 24th January, 2013
                                   DECIDED ON : 28th January, 2013.


+                                  CRL.A.No.427/2010

       DINESH                                    ..... Appellant
                             Through : Mr.A.J.Bhambhani, Advocate.


                             Versus


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


        CORAM:
        MR. JUSTICE SANJIV KHANNA
        MR. JUSTICE S.P.GARG


S.P.GARG, J.

1. The appellant-Dinesh impugns the judgment dated

09.10.2009 and order on sentence dated 13.10.2009 of learned Additional

Sessions Judge by which he was convicted for committing offence

punishable under Section 376 (2)(f) IPC and sentenced to undergo

rigorous imprisonment for ten years with fine of `5,000/-

2. Allegations against the appellant were that he committed rape

upon the prosecutrix 'X' (assumed name) aged three years in his house on

22.03.2008 at about 04:00 P.M. The prosecution examined ten witnesses.

In his statement recorded under Section 313 Cr.P.C. the appellant pleaded

false implication. He examined himself in defence and stated that he had

taken 'X' to his house on 22.03.2008 at about 11:00 A.M. Since his

parents and nephew were present in the house, he took her to an abandon

house situated near his residence and there inserted finger in the vagina of

the girl. She cried and the blood oozed out from her vagina. He left her to

her house. After seeing the blood coming out from the vagina, her mother

thought that he committed rape/sexual assault upon her.

3. Counsel for the appellant urged that the Trial Court did not

appreciate the evidence in its true and proper prospective and fell in grave

error in relying upon the testimony of PW-3 who was an interested

witness. The Trial Court ignored the vital discrepancies emerging in the

testimonies of the prosecution witnesses. The prosecution witnesses have

given inconsistent version whether the prosecutrix was conscious or

unconscious at the time of occurrence or if there was blood/stool at the

spot. No injuries were found the body of the prosecutrix and the

accused's genetalia. Had the accused, a grown up adult to raped the

prosecutrix, she must have sustained vital internal injuries. It was a case

of outraging the modesty of the child. Learned Additional Public

Prosecutor urged not to interfere in the impugned judgment as it is based

upon cogent appraisal and appreciation of the evidence brought on record.

Testimony of the prosecutrix's mother is in consonance with medical

evidence.

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

examined the Trial Court record. The victim is admittedly a child aged

three years. The accused resided in the neighbourhood of the victim's

parents and was known to them. On 22.03.2008 he took the child to his

room on the pretext to play. When PW-3 heard the shrieks of the child

she went to the room and found the accused naked. The accused had not

disputed these facts and has admitted in his statement under Section 313

Cr.P.C. that he had inserted only finger in the vagina of the child and it led

to bleeding. The accused did not deny his presence with the victim inside

the room where he was caught red handed.

5. PW-3 (Smt. Birwati) is a crucial witness. DD No.38 (b)

Ex.PZ-1 was recorded at police station Nangloi on 22.03.2008 at 04:40

P.M. on getting information that a child aged about 4-5 years was raped.

PW-3 in her statement (Ex.PW3/A) gave vivid account of the incident as

to how and under what circumstances her daughter was ravished by the

accused. The accused was apprehended at the spot and was given

beatings by public. The occurrence took place at about 04:00 P.M. First

Information Report was lodged at 07:00 P.M. There was no delay in

lodging the First Information Report and it rules out possibility of any

fabrication. While appearing before the court, PW-3 proved the version

given by her to the police at the first instance. She categorically deposed

that on the day of incident at about 04:00 P.M., the accused who resided

in her neighbourhood took 'X' on the pretext to give her food. On hearing

the shriek of her daughter, she went to the accused's house. When she

opened the door, she saw that the accused was lying on her daughter and

had removed her garments from the lower portion. The accused had also

pulled down his underwear. He was moving to and fro on her daughter

and committing rape. Her daughter was not conscious at the time. She

pushed the accused away and picked up her daughter who was bleeding

from her private parts. When she raised alarm, the accused was

apprehended and beaten. In the cross-examination, she explained that

parents and nephew of the accused lived with him. However, at the time

of occurrence, no other person was present in the house. She denied that

the accused had only inserted finger in her vagina.

6. Testimony of PW-3 inspires confidence as she had no ulterior

motive to make false statement against the accused who was her

neighbour. There is no history of hostility with the accused. Had it been

so, PW-3 must have not permitted the child to accompany with the

accused. She was not aware of the evil design of the accused. The

accused did not attribute any motive to the witness to falsely implicate

him. It is not believable that she being the mother would falsely levied

allegations of rape to bring her own daughter in disrepute.

7. PW-8 (Dr.Jyoti Bansal) proved MLC (Ex.PW8/A) by which

X was medically examined on 22.03.2008. On local examination, a tear

was seen in the posterior vaginal wall. Blood was also present. She

advised the patient to be admitted in labour room for observation and

repair under general anthesia. In the cross-examination, she was

categorical that injuries reflected in the MLC could be sufficient for

sexual intercourse in this case. She explained that in case of a forceful

and vigorous sexual intercourse with a three year old child by a fully

grown male, the damage may extend to perineum, anus or even the

muscle. However, she volunteered to add that in case of lesser

penetration or lesser use of force, there may not be any damage or much

less extensive damage. She further clarified that there is difference

between penetration caused by finger or by penis. She was certain that

the tear in the posterior vaginal wall usually could not be caused by

insertion of finger. She was of the opinion that in case of insertion by

finger such tear in the posterior vaginal wall or bleeding could not occur

and it is possible only in case of insertion of penis. There are no reasons

to discard the expert opinion.

8. Ocular testimony of PW-3 is in consonance with medical

evidence and there is no conflict between the two. Minor discrepancies

highlighted by the counsel are not material to discredit the testimony of

PW-3. The prosecution had produced 'X' to examine in the court but due

to her tender age she was not able to understand and give rational answers

to the questions put to her.

9. The order on sentence also does not require any intervention

as minimum sentence prescribed under Section 376 (2) (f) IPC has been

awarded to the accused. There are no adequate and special reasons to

award less than the minimum sentence prescribed under the Act. The

victim was a child aged about three years. The accused was a grown up

person who resided in the neighbourhood of the family. He betrayed the

trust of his neighbours and ravished a minor innocent kid who was

unaware of the consequences of the heinous act.

10. In the light of the above discussion, the appeal lacks merits and is dismissed. The conviction and sentence of the appellant are maintained.

11. Trial Court record be sent back forthwith.

12. Crl.M.B.No.536/2010 stands disposed of as being infructuous.

(S.P.GARG) JUDGE JANUARY 28, 2013 sa