Delhi High Court
Suresh vs State on 20 September, 2010
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: September 9th, 2010
Date of Order: September 20, 2010
+ Crl. Appeal No.104 of 1996
% 20.09.2010
Suresh ...Appellant
Versus
State ...Respondents
Counsels:
Mr. O.P. Aggarwal for appellant
Mr. Sunil Sharma, APP for respondent/State.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. The present criminal appeal under Section 374 of Chapter XXIX for Cr.P.C. has been preferred by appellant against the judgment dated 4 th May, 1996 passed by learned Additional Sessions Judge, Delhi convicting the appellant for the offence under Section 376 IPC.
2. Brief facts relevant for the purpose of deciding the present appeal are that the appellant was living in the neighbourhood of complainant. On the day of incident i.e. 6th May, 1986, the complainant was sitting with her one and a half Crl. Appeal No.104 of 1996 Suresh v State Page 1 Of 5 year old daughter just outside the house. The appellant came to her and took complainant's daughter in his lap. Since he was a neighbour, she had no reason to suspect. However, the appellant took her daughter to his room at first floor and after about half an hour, he came back with the crying girl. The girl was weeping bitterly at that time. The mother of the girl asked the appellant as to why she was crying, on which the appellant replied that she had fallen down from his hand and received injuries. The appellant, leaving behind the daughter of complainant, went away. Since the girl was weeping very bitterly, she inspected the body of her daughter to find out where she had received injuries and found that the underwear of her daughter was soaked with blood and the blood was oozing out. She removed underwear of her daughter and found that blood was coming out from her vaginal orifice. The husband of the complainant was not at home at that time. She being a village woman did not immediately rush to the police station but on the next day after return of her husband, she went to the police station and lodged a report. The girl child was immediately taken to the hospital for medical examination where she was examined and doctor opined that the injuries on the vaginal orifice were caused by penetration of fully-developed adult penis. The vaginal orifice was found lacerated and the tender areas were found raw and injured. There was evidence of sperms in the vagina of that child. The MLC was proved as Ex.PW4/A. The appellant/accused was also examined at Swami Dharmand Hospital on 8th May, 1986 and his medical examination also revealed that there was abrasion of 3 cm over the glan on 7 o'clock position. The underwear of the appellant and the victim were seized by the police and sent for forensic examination. The report Ex. PB shows that human semen was detected on both the underwear i.e. of the minor girl as well appellant. The complainant Crl. Appeal No.104 of 1996 Suresh v State Page 2 Of 5 herself i.e. mother of the minor girl had appeared in the court as PW-3 and testified that the appellant had taken her daughter from her to his house upstairs and within 28/30 minutes, he came back with her daughter crying and weeping very loudly and on enquiry from the appellant, she was told by the appellant that she (victim) had fallen from stairs. However, on examination of her body she found her bleeding profusely from her vaginal orifice. The only suggestion given to this witness was that she had made false statement against the appellant due to enmity and she wanted to entangle the father of the appellant in her fold and since she failed, she falsely implicated the appellant. However, dewar of complainant appeared as PW-1 and testified that on the evening of 6th May, 1986, the complainant had come to him and narrated the incident and thereafter a report was lodged to the police station when the husband of the complainant came. The suggestion given to this witness was that the complainant i.e. mother of the victim child, was about 10 year younger to her husband and she wanted to develop illicit relations with the appellant and on his refusal he was falsely implicated in this case. In statement under Section 313 Cr.P.C, the appellant had taken the stand that the complainant i.e. mother of the victim girl wanted to have sexual relations with the appellant but since he did not oblige, he was falsely implicated. To every other piece of evidence, the answer has been identical 'it is incorrect'.
3. The learned Sessions Judge after considering the entire oral evidence and medical evidence had come to conclusion that it was a case of rape of one and a half year child at the hands of appellant. The medical evidence showed split laceration of vagina and the opinion of the doctor that this injury was caused due Crl. Appeal No.104 of 1996 Suresh v State Page 3 Of 5 to penetration of fully erected penis and the oral testimony of witness leaves no doubt about commission of crime by the appellant.
4. In appeal, the contention of counsel for the appellant is that he was falsely implicated by the complainant. Another stand taken by the appellant is that at the time of incident, the age of the appellant was below 18 years and, therefore, he was a juvenile. It is also submitted that there was no eye witness to the rape and the circumstantial evidence produced by the prosecution was not sufficient to prove the guilt of the appellant. It is further submitted that the medical evidence placed on record was not admissible as a proof of rape. I think all these pleas raised by the appellant must fail. In fact, perusal of trial court record would show that the case of the appellant was first sent to Juvenile Justice Court and that is how the appellant was granted bail in such a heinous crime within 15 days. It is only when the complainant made a complaint before the Chief Justice that the appellant was not a juvenile and an inquiry into his case was conducted and the case transferred to the Sessions Court. Even as per the appellant's own admission he was 16 years and 5 months of age at the time of commission of crime. As per the prevalent law, in 1986, a person below 16 years of age only was considered a juvenile and was to be tried before the Juvenile Court. It is only in 2000 that the new Juvenile Justice Act came into force and the age of the juvenile was increased from 16 to 18 years. A report to this effect sent by learned Additional Sessions Judge, Shahdara to the learned District & Sessions Judge is available on record. This matter was also brought before this Court vide the Criminal Misc Petition 1658 of 1988 for cancellation of bail of the appellant wherein this Court considered that the appellant was not a juvenile, below 16 Crl. Appeal No.104 of 1996 Suresh v State Page 4 Of 5 years of age and he was not entitled to be tried before the Children Court.
5. The case of the appellant was proved at trial beyond reasonable doubt. The medical evidence and the oral evidence prove it beyond reasonable doubt that the appellant committed rape on a tender age girl of one and a half year. I find no force in this appeal. The appeal is hereby dismissed.
6. The appeal stands dismissed.
September 20, 2010 SHIV NARAYAN DHINGRA, J rd Crl. Appeal No.104 of 1996 Suresh v State Page 5 Of 5