Delhi High Court
Rajesh @ Tinku vs State Of N. C. T. Of Delhi on 15 September, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: September 7, 2016
% Judgment Delivered on: September15, 2016
+ CRL.A. 850/2001
RAJESH @ TINKU ..... Appellant
Represented by: Mr. Ravindra Narayan and
Mr.Raghav Narayan, Advs.
Versus
STATE OF N. C. T. OF DELHI ..... Respondent
Represented by: Mr. Kewal Singh Ahuja, APP
for the State.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J.
1. Rajesh @ Tinku challenges the impugned judgment dated October 20,
2001 convicting him for offence punishable under Section 376(2)(f) IPC and
the order on sentence dated October 23, 2001 directing him to undergo
rigorous imprisonment for a period of ten years and to pay a fine of
`1,000/-.
2. Assailing the conviction learned counsel for Rajesh @ Tinku contends
that PW-8 the prosecutrix, PW-9 mother of the prosecutrix and PW-7 father
of the prosecutrix were tutored witnesses as they stated verbatim whatever
was stated before the police. As per the serology report of FSL, the blood
sample of the appellant did not match with the semen found on the introitus
of the prosecutrix. Lastly, it is contended that the learned Trial Court failed
to appreciate the testimony of PW-6 Dr. Alka Sinha who had medically
examined the prosecutrix and as per the MLC prepared by her there was no
injury on the genitals nor even bruising.
3. Learned APP for the State on the other hand contends that as per the
evidence of PW-6 Dr. Alka Sinha, though the hymen was found intact and
there were no external injuries however some discharge was found at the
introitus and as per the FSL report, it was human semen. Furthermore, when
the appellant was confronted by PW-9 mother of the prosecutrix, the
appellant ran away and was arrested later on. The conduct of the appellant in
running away shows the guilt of the offence committed by him.
4. FIR No. 232/2000 was registered under Section 376 IPC at PS Kalkaji
on the complaint of the PW-9 mother of the prosecutrix, who stated that on
March 31, 2000 around 2:30 P.M., the prosecutrix, aged 4 years, had gone
out after lunch. Around 4:30 P.M. the prosecutrix returned home crying and
told her, by pointing towards her private parts, that 'Tinku ne kuch kar diya
hai, dard ho raha hai'. Thereafter, she along with PW-7 father of the
prosecutrix went to Tinku's place who admitted his mistake. When PW-9
asked him to come to the police station along with her, Tinku pushed her
and ran away. This statement of PW-9 was recorded by PW-11 HC Tara
Chand vide Ex. PW-9/A. Thereafter, the prosecutrix was taken for medical
examination to AIIMS. On April 11, 2000, Rajesh @ Tinku was arrested
from his house i.e. House No. A-117, Transit Camp, Govindpuri on the basis
of secret information received.
5. PW-9, Smt. Kaushalya deposed in sync with her statement made
before the police. She further deposed that she and PW-7 had noticed
swelling on the vagina of the prosecutrix. They also noticed semen on the
vagina. During her cross examination, she stated that after the incident, they
left Delhi and started living in Agra because of the threats given by the
mother of Rajesh @ Tinku. Mother of Tinku started threatening after 3-4
days of the incident and she still extends threats at Agra. She denied the
suggestion that she was falsely implicating Tinku in this case because he had
seen her with some other person. She also deposed that no blood was
noticed on the vaginal part of the prosecutrix but only semen was noticed.
Semen was noticed on different parts of the body of the prosecutrix.
6. After being satisfied that the prosecutrix was able to give rational
answers and capable of understanding the questions put to her, the
prosecutrix was examined as PW-8. She deposed that 'tinku ne apne ghar
mein mere saath gandi baat ki thi' and pointed out towards her vagina. She
further stated that 'jaha par tinku ne gandi baat ki thi vaha par dard hua
tha. Maine yeh baat mummy papa ko batayi thi. Jis jagah par gandi baat ki
thi mere saath vaha se main bathroom karti hoon'.
7. PW-7 father of the prosecutrix corroborated the testimony of PW-9.
During his cross examination, he stated that when the prosecutrix informed
him about the incident, she was not wearing the underwear at that time.
8. PW-6, Dr. Alka Singh, Senior Resident, AIIMS had medically
examined the prosecutrix and prepared the MLC Ex. PW6/A. She stated that
there was no history of bleeding and no obvious sign of external injury. On
local examination, it was found that there was no bruising. Hymen was
intact and there was some discharge at the introitus. No obvious stains were
observed on the clothes. During her cross examination, she deposed that the
discharge at introitus could dry up within 3 to 4 hours and no discharge was
seen on any other part of the body. She deposed that it was not necessary
that the discharge would have fallen when the prosecutrix was brought to the
hospital as the introitus area is enclosed between the labia folds. She further
stated that if there is full penetration by a fully developed man into the
vagina of a child, the hymen is likely to be torn and there may be evidence
of bruising and other parineal injuries. She deposed that the prosecutrix had
not complained of pain in her genital parts.
9. As per the FSL report exhibited as Ex. PW-10/A, human semen was
found on three microslides having thin whitish smear which were taken
when the prosecutrix was medically examined. Though as per the FSL
report blood group of Rakesh @ Tinku was opined to be 'O' Group but no
blood grouping of semen detected on the slides prepared from the vaginal
smear had been given. In the absence of a contrary report the plea of
Rajesh that the semen did not have the same blood group cannot be
accepted. As held by the Supreme Court in the decision reported as (2010)
10 SCC 259 (para 39), ocular version is given primacy over medical report
and only if the medical report totally contradicts the ocular version, then
only it is to be rejected.
10. Further even if there was no injury or bruises on the private parts of
the prosecutrix, the same does not indicate that no offence of rape took
place. To constitute the offence of rape even partial penetration is
sufficient. The slides prepared from the vaginal smear of the 4 year old
prosecutrix were found to contain semen. Soon after the incident she
complained to her parents and was medically examined. The same is
sufficient to corroborate the version of the prosecutrix even in the absence of
the hymen being torn or injuries not being noted on private parts.
11. Thus, there is considerable evidence on record to prove beyond
reasonable doubt the offence of rape committed by Rajesh on the 4 year old
prosecutrix and the appellant has not been able to probablise his defence of
false implication even after leading the defence evidence. The impugned
judgment of conviction and order on sentence are upheld. The appeal is
dismissed. The appellant who is in custody pursuant to the non-bailable
warrants will undergo the remaining sentence.
12. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.
13. TCR be returned.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 15, 2016
'vn'
