Saleem Qureshi vs State
2014 Latest Caselaw 4854 Del

$~13
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                  Date of Decision: September 26, 2014

+                        CRL.A. 1247/2012

      SALEEM QURESHI                                      ..... Appellant
                  Represented by:              Mr.Avninder Singh, Advocate

                         versus

      STATE                                               ..... Respondent
                         Represented by:       Ms.Aashaa Tiwari, APP

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)

1. The appellant is the father of baby 'Z'. He was charged for having raped his daughter baby 'Z'. He has been convicted vide impugned decision dated March 18, 2011. Vide order on sentence dated April 05, 2011, he has been sentenced to undergo imprisonment for life.

2. The FSL report Ex.PW-15/A records the opinion of the Forensic Science Laboratory, to which the clothes of baby 'Z' and vaginal swab of baby 'Z' were sent that semen could not be detected either on the clothes of baby 'Z' or in the vaginal swab.

3. Therefrom an argument has been advanced that at best it is a case of digital rape.

4. Counsel highlights that the offence took place on April 04, 2009, before the Penal Code was amended on February 03, 2013.

5. The MLC of baby 'Z', Ex.PW-9/A, records inter-alia :-

       (i)     Lips swollen, bruise.
      (ii)    Bruises present on face.

(iii) Scratch marks present over labia minora.

      (iv)    Oozing from scratch marks present
      (v)     Bite marks present on libia.

6. Learned counsel for the appellant does not dispute that the MLC which shows that baby 'Z' was examined at Guru Teg Bahadur Hospital at 11.00 P.M. on April 04, 2009, was sexually defiled. But counsel urges that the MLC would establish at best the appellant having inserted his finger in the vagina of his daughter.

7. Baby 'Z' has appeared as PW-1. Being found to be capable of understanding the questions put to her, the Court recorded her statement on November 26, 2009. She was more than 4 years and less than 5 years of age when the incident took place and had just crossed 5 years when she deposed in Court. She deposed that on the day in question her father removed his and her clothes and inserted his finger in her vagina. Then her father lay down over her body. Her father bit her on the lips. Her father scratched her face. Then her father did a wrong act by : 'susu wali jaghe galat kaam kiya tha......susu wali jaghe mere susu wali jahe mai daali'. She has also deposed that her father licked her 'susu wali jaghe'.

8. Drawing our attention to baby Z's statement recorded under Section 164 Cr.P.C. before the learned Metropolitan Magistrate on April 15, 2009 Ex.PW-8/A, learned counsel urges that as per said statement baby 'Z' did not state that her father firstly inserted his finger in her vagina and then his sex organ. Learned counsel urges that said statement would bring out not a penile penetration but a penetration by a finger.

9. The statement of baby 'Z' under Section 164 Cr.P.C. is in Hindi and

translated it reads as : 'My father took me in the lap and lay down on me. He first inserted a finger between my legs. Then he licked me. Then he inserted inside me.'

10. We reproduce what she said in her own words :-

'Papa Mujhe Godi Me Le Gaye or Papa Mere Upar Late Gaye or Unhone Pahle Mere Neeche Wali Jagah Per Ungli Daali Fir Chaatne Lage or Fir Ander Daal Diya'.

11. The statement can be bifurcated as follows:-

      (i)     Papa Mujhe Godi Me Le Gaye;
      (ii)    Or Papa Mere Upar Late Gaye;

(iii) Or Unhone Pahle Mere Neeche Wali Jagah Per Ungli Daali;

      (iv)    Fir Chaatne Lage;
      (v)     Or Fir Ander Daal Diya

12. The last sentence : 'Or Fir Ander Daal Diya' is obviously referring to the sex organ of the father being inserted in the vagina, for the reason in the previous part of the sentence she has spoken of the father having inserted his finger in her vagina.

13. From the testimony of appellant's wife PW-2, it is apparent that the appellant had returned to the house after deserting her and his four daughters four years ago. Baby 'Z' was then 10-15 days old. When he returned to his wife and children in the month of April, 2009 baby 'Z' was a little over 4 years of age. Her testimony would evidence that in the house when she had left the children under the care of the appellant, on her return she saw baby 'Z' in pain. She was crying. Blood was oozing from her vagina.

14. Nagma PW-3 the elder sister of baby 'Z' has proved that when she heard the cries of baby 'Z' she went to the room and saw the appellant standing naked and blood was oozing from the vagina of her sister.

15. We have bothered ourselves to note the contents of the MLC of baby 'Z'. The same corroborate what baby 'Z' has said. The bite marks on the lips and the libia corroborate her statement that her father bit her on the lips, licked her private parts and bit her there. The scratch marks at the libia minora and blood oozing from the scratch marks suggests a penetration in the vagina. We have noted the testimony of baby 'Z'. We have also noted her statement recorded under Section 164 Cr.P.C. She has categorically deposed that her father first inserted his finger in her vagina and then his male sex organ.

16. Merely because semen could not be detected in the vaginal swab or the clothes of the baby 'Z' would not mean that there was no penetration from the male sex organ. It may be possible that before the appellant ejaculated, the shrieks of the minor girl made him extract his penis from the vagina.

17. We affirm the appellant's conviction for the offence of having raped his minor daughter and as regards the sentence to undergo imprisonment for life, we cannot overlook the fact that appellant left the family four years back when baby 'Z' was hardly 10-15 days old. He returned to the house in the month of April and raped baby 'Z' the same month. The acts of perversity were not only to rape the infant but even indulge in a lip lock kiss (evidenced by the fact that the lips of baby 'Z' were swollen), licking and biting the private parts of baby 'Z' (evidenced by bite marks present on labia), attempting to open the vaginal orifice (evidenced by the scratch marks present over labia minora) obviously to facilitate penile penetration.

18. The appeal is dismissed.

19. Copy of this order be sent to the Superintendent Central Jail Tihar for his record.

20. TCR be returned.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE

SEPTEMBER 26, 2014 skb