SACHIN ALIAS KALU Vs. STATE OF DELHI

JUDGEMENT

(1.) This is an appeal against the judgment of conviction and order on sentence in case FIR No. 228/2003 PS Maya Puri under Section 376 IPC whereby the Appellant has been convicted for the offence punishable under Section 376 IPC and sentenced to undergo RI for 10 years and a fine of Rs. 10,000. In default of payment of fine, he has to undergo RI for one year.

(2.) The case of the prosecution in brief is that on 15th September, 2003 at about 3 p.m., when the prosecutrix was going to the toilet, the Appellant, who happens to be her cousin, took her to his jhuggi where he committed rape on her. The Prosecutrix came to her house and informed her mother, who noticed blood around her private parts and on the underwear. The Complainant i.e., the mother of the Prosecutrix, immediately went to the jhuggi of the Appellant where she noticed blood stains on the bed sheet and mattress. An information was sent to the Police Station and on the police reaching, both the Prosecutrix and the Appellant were medically examined. The clothes of the Prosecutrix and the accused, mattress and bed sheet were seized as exhibits. Subsequently, the statement of the Prosecutrix was also recorded under Section 164 Cr.PC.

(3.) Learned counsel for the Appellant challenging the judgment of conviction, contends that as per the evidence of Dr. Pankaj PW 15, it is apparent that no rape had been committed with the Prosecutrix because on medical examination of the Prosecutrix the doctor found, "Fourchette and hymen was intact. No mark of the injury seen over the body. Blood stain seen over thighs and underpants. No active bleeding seen. None of the fingers could be introduced into hymen." Thus, according to learned counsel as the hymen was intact and there was no mark of injury over the body of the Prosecutrix, the offence of rape has not been committed as there is no evidence of penetration. It is further contended that even as per Dr. Sameer Kapoor PW1, it is opined that the possibility of rape cannot be ruled out. Thus, according to him in case of doubt, the benefit of doubt has to go to the convict/Appellant and not to the prosecution. It is stated that there is no presumption in favour of the prosecution. As per the defence the girl was stated to be little over five years of age. The Appellant was suffering from boils on his private parts and that is why there were blood stains on his clothes, bed sheet and the mattress. The Complainant being the cousin sister sat on the lap and this resulted in blood stains even on her clothes. It is stated that because of the enmity between the families, this false case has been foisted upon the Appellant.