PARTAP SMGH Vs. STATE

JUDGEMENT

(1.) The facts giving rise to this appeal are that on 27.7.87,at about 3 p.m. Partap Singh, hereinafter called the appellant, committed rapeon Kumari Suman aged ablout 5 years, at his house in Prem Nagar, Nangloi,Delhi. He was prosecuted for the said offence under Section 376 Indian Penal Code and theAddl Session Judge who tried the case found him guilty of the said offence andconvicted him under Section 376 Indian Penal Code by his judgment dated 28.4.89. Aftergiving an opportunity of hearing on the point of sentence, learned AddlSessions Judge sentenced him to RI for seven years by order dated 29.4.1989.

(2.) Aggrieved, this appeal has been filed by the appellant. Ms. UshaKumar, learned counsel for the appellant argued that the appellant has beenfalsely implicated in this case on account of some enmity between the appellantand the parents of the prosecutrix. The charge under Section 376 Indian Penal Code againstthe appellant has not been proved beyond reasonable doubt. Mere fact thatthe prosecutrix was seen bleeding from her vagina just after the alleged incidentis not sufficient to establish that rape was committed on the prosecutrix by theappellant. The prosecutrix who appeared as a witness as Public Witness 9 has not mentioned about any sexual intercourse with her by the appellant. The act ofpenetration is most essential ingredient of the offence of rape. She pointed outthat there are material contradictions in the statements of the prosecutionwitnesses, namely, Meena, Public Witness 7,Pritam Singh, Public Witness 2, and Suman the prosecutrix PW 9. Shivaji, Public Witness 3, father of the prosecutrix was not present at the timeof the alleged incident. On the basis of the evidence available on record theappellant cannot be convicted under Section 376 IPC. The act of penetrationshould have been proved along with the presence of semen on the sexual organsof both the appellant and prosecutrix and on their undergarments. The absenceof semen as per the report of CFSL indicates the innocence of the appellant.

(3.) The argument of the counsel for the appellant is devoid of force.Rape has been defined under Section 375 of the Indian Penal Code. Punishmentfor rape has been laid down under Section 376 IPC. A man is said to commitrape except in the cases as mentioned in Section 375, as sexual intercourse witha woman under circumstances falling under any of the six description mentionedtherein. To prove the act of rape four ingredients are essential, namely, (i) theact of sexual intercourse with a woman in question, (ii) act was done in thecircumstances falling under any of the five descriptions specified in Section 375,(iii) that such a woman was not the wife of the accused; or if she was his wife,she was under 15 years of age, and (iv) there was penetration. In this case,admittedly the age of prosecutrix was five years and she was a minor of tenderage. The medical report of the prosecutrix Ex. Public Witness 13/A cleaRIy points outthat she was subjected to rape. She was examined on the same day, i.e.27.7.1987. The medical report of the appellant also shows that he was capableof doing sexual intercourse. Dr. R.K. Sharma, Public Witness II, has proved this report and he further stated that on examination of the appellant some injuries werefound on his body. Besides this report, the fact that prosecutrix was bleedingfrom her vagina stands established from the statements of Pritam Singh, Public Witness 2,Meena sister of the prosecutrix PW7, Nimmi, PW8, and Suman Prosecutrixherself, Public Witness 9. It is also on the record that the underwear (Ex. P 3) whichthe prosecutrix was wearing at that time and the underwear (P 2) which theappellant was wearing at that time were taken in possession vide memo Ex.PW 2/C and Public Witness 2/B and these were found to be blood stained and from thereport of the CFSL the blood group of both these underwear was found to be ofgroup B. From the statement of the witnesses examined by the prosecution,Pritam Singh, Public Witness 2. Shivaji, Public Witness 3, Jai Narain, Public Witness 6, Meena, Public Witness 7, Nimmi,PW 8, Suman, Public Witness 9, Dr. R.K. Sharma, Public Witness 11 and the medical report of theprosecutrix Ex. Public Witness 13/A and that of the appellant Ex. Public Witness 11/A and the reportof the CFSLEx.PW 12/E and Public Witness 12/F, if stands cleaRIy proved that theappellant was residing in front of the house of the prosecutrix and on 27.7.87,the date of incident, the appellant asked the prosecutrix to bring a glass of waterfor the appellant inside his room. where he committed sexual intercourse withher which resulted in bleeding from the vagina of the prosecutrix. In suchcircumstances it cannot be said that there was no act of penetration in this case.She was a minor giRI of tender age, i.e. about five years and she is not expectedto know about the sexual intercourse and its consequences. But the fact, whichis proved on record is that the appellant had sexual intercourse with the minorgiRI of five years resulting in bleeding from her vagina. This is a barbarous actwhich the appellant has committed while commiting rape on this innocent giRI offive years. The trial Court has correctly appreciated the documentary as well asoral evidence on record and I do not find any infirmity in the order of thetrial Court. The witnesses examined by the prosecution are reliable witnessesand there is no reason as to why they should depose falsely against the appellant. Not a single question was put in the cross-examination that they havegot any enmity with the appellant or that on that account they have deposedfalsely. The statement of the prosecutrix stands corroborated from the statementsof other witnesses examined in the case. When soon after the incident, thewitnesses found the underwear of the prosecutrix stained with blood it was notnecessary for the lady doctor to take smear from her vagina to see if sperm couldbe found. She was a girl of only five years and was seen having bleeding fromher vagina just after the incident. What more is needed to prove this offenceof rape on the part of the appellant, has not been explained by the counsel forthe appellant ? The trial Court has correctly appreciated the oral as well as thedocumentary evidence while convicting the appellant for the offence underSection 376 Indian Penal Code and I find no justification in interfering with the judiciousfinding of the trial Court on this count and I confirm the same.