Bhupender vs State
2016 Latest Caselaw 3992 Del

$~R-59
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Decision : May 25, 2016

+                        CRL.A. 489/2014

      BHUPENDER                                        ..... Appellant
              Represented by:         Mr.Rajender Chhabra, Advocate

                                      versus

      STATE                                            ..... Respondent
                    Represented by:   Mr.Varun Goswami, APP with SI
                                      Gaurav, PS Jahangirpuri

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

PRADEEP NANDRAJOG, J. (Oral)

1. Charged for having committed an offence punishable under Section 376/511 IPC, with a determinative finding that the appellant raped the infant child, whom I give the pseudo name 'Alice', aged about 3 years as of September 03, 2012, the appellant has been sentenced to undergo RI for 5 years and pay fine in sum of `5,000/-; in default to undergo SI for 3 months.

2. The fate of the appellant has been sealed by the learned Trial Judge believing the testimony of Usha PW-9, the mother of Alice as also the testimony of Alice who appeared as PW-10. Lethal linkage is found in the FSL Report Ex.PW-14/D and Ex.PW-14/E.

3. The frock and the pajami of Alice which was seized by the Investigating Officer after Alice was examined at Babu Jagjeevan Ram Memorial Hospital on September 03, 2012 shows that human semen was

detected thereon. DNA generated from the semen samples matched the DNA generated from the blood sample of the appellant.

4. The day happened to be September 03, 2012. The time was around 11:00 AM. Alice took money from her mother to buy a sweet. As deposed to by Usha, she gave Alice a rupee. The child did not return. The shop which the child had to visit was at a handy distance. After 10 minutes Usha started searching for her daughter and heard her cries from within the precincts of a temple nearby. She entered the temple and from behind the Shiva Idol saw her daughter run towards her crying, with her pajami pulled down. As a mother would, she asked her daughter what had happened. A boy : the appellant was walking away. The young child pointed towards the appellant and said, pointing out towards her private parts 'susu susu'. The tigress in the mother impulsively made her catch hold of the appellant. The word spread. Ct.Ashok PW-11 took custody of the appellant. Information was conveyed to the police station. SI Mahender Singh entrusted the custody of Alice to W/HC Satvinder Kaur PW-6 who took her to Babu Jagjeevan Ram Memorial Hospital in the company of her mother. The infant child was examined by Dr.Kazmi who recorded the MLC Ex.PW-2/A, proved at the trial by Dr.Rahul PW-3, because Dr.Kazmi was not available. He referred Alice for gynaecological examination. Dr.Poonam examined the child and wrote the writing A to A-1 on the MLC Ex.PW-2/A, proved at the trial by Dr.Latika since Dr.Poonam was not available. The writings on the MLC do not record anything suggestive of a rape or the child being molested. No injuries are found on the person of the child. The frock Ex.P- 1 and the pajami Ex.P-2 were taken by the doctor after examining Alice and handed over to the investigating officer. W/SI Vineeta Prasad PW-14 was

entrusted further investigation. She collected the MLC Ex.PW-2/A of Alice and recorded statement Ex.PW-9/A of Usha, the mother of Alice, in which she disclosed facts which I have hereinbefore noted.

5. The appellant had already been apprehended, as noted above, at the spot. He was formally arrested and taken to Babu Jagjeevan Ram Memorial Hospital for being medically examined. Dr.Narender Kumar PW-13, Senior Residence (Surgery) examined him and wrote on the MLC Ex.PX-4 that there was nothing to suggest that the appellant was not capable of performing a sexual act. Undergarments, pubic hair and blood sample of the appellant was taken. Sealed and handed over to the investigating officer.

6. Having heard learned counsel for the appellant and having perused the record I find that the purity of the custody of the samples has been maintained by proving the same to be duly deposited in the malkhana and sent to the FSL Laboratory. DNA report, to which I have made a reference to, establishes that the semen discharge on the frock and pajami of Alice had DNA profile matching that of the appellant.

7. Appellant's presence in the temple and he being the man pointed out by Alice as the one who had done something with Alice concerning the private parts of Alice has been proved by Usha as well as Alice herself whose testimony would obviously be skimpy because when she deposed she was 4 years old and at the time of incident was 3 years old. Her vocabulary would be not more than 500 to 600 words.

8. That the semen discharge of the appellant was detected on the clothes of Alice, and Alice pointing out the appellant and uttering 'susu susu' are such contemporaneous utterances of Alice wherefrom the logical conclusion would be that it was the appellant who tried to fiddle around the private

parts of the girl. The only argument which I need to note is : Whether rape or an attempt to rape is made out.

9. The impugned judgment is unclear. It returns a verdict of guilt for having committed an offence punishable under Section 376/511 IPC.

10. Whilst it may be true that from the medical examination as recorded in the MLC of Alice and from the testimony of Alice and her mother it does not clearly emerge that the appellant tried to insert his penis in the vagina of young Alice, but the testimony of Alice suggests that after the appellant removed the pajami of Alice he fiddled with her private parts but what he did is not clear from her testimony. Clarity is brought by appellant's semen being found on the frock and the pajami of Alice. It would be meant that the attempt to rape was complete. Whether the conviction is for rape or for attempt to rape, the result would be the same. The appellant must suffer the custody for the period directed to be suffered.

11. I terminate by holding that the appellant, on the given evidence, is guilty of attempting to rape Alice. So convicting the appellant I maintain the sentence to undergo RI for 5 years and pay fine in sum of `5,000; in default to undergo SI for 3 months.

12. TCR be returned.

13. Since the appellant is in jail copy of this decision be sent to the Superintendent Central Jail Tihar for updation of the jail record and thereafter to be supplied to the appellant.

(PRADEEP NANDRAJOG) JUDGE MAY 25, 2016 mamta