MUKESH Vs. STATE

JUDGEMENT

(1.) THE appellant Mukesh Kumar was convicted under Section 376, Indian Penal Code and sentenced to imprisonment for life and fine in the sum of Rs. 1,000/- by Shri S.R. Goel, Addl Sessions Judge, Shahdara who further directed that the fine, if realised, shall be paid to the victim of the rape Surekha Devi. Feeling aggrieved with his conviction and sentence Mukesh Kumar has come up in appeal.

(2.) THE prosecution case, stated briefly is that on 20th March, 1981 the prosecutrix Kumari Surekha, then aged about seven years, was playing in the park which is adjacent to her house at about 2.30/3.00 P.M. along with her brother and other children, and the appellant Mukesh who was also sitting in the park, caught the prosecutrix and made her sit on his legs and after removing her petticoat which she was wearing, thrust his penis into her vagina after opening the string of his pajama which he was wearing. On this the prosecutrix cried. The children; who were playing in the park called Smt. Gulab Devi (PW6) sister of the father of the prosecutrix to the park, and when she reached there the appellant had already left that place. Smt. Gulab Devi took the proseutrix to the police post Welcome, Seelampur and the statement (Ext, PW/5A) of Gulab Devi was recorded by S.I. Rajbir Singh of the said police post, and the same was sent by S. I Rajbir Singh along with his endorsement (Ex. PW1/A) to police station Shahdara for the registration of the case against the appellant under section 354/323/337 Indian Penal Code on the basis of which F.I.R Ext. PW5/B was recorded. The prosecutrix was when sent to L.N. J.P. Hospital, New Delhi. for medical examination through Constable Suraj Bhan and Jagannath father of the prosecutrix. At L.N. J.P. Hospital the prosecutrix was examined at 7.20 P.M. on that very day i.e, 20th March, 1981 by Junior Dr. (Mrs) Krishna Tiwari with the alleged history of rape by appellant Mukesh and she found that the prosecutrix was slightly bleeding. On P.V. examination this doctor had found hymen of the prosecutrix torn posteriorly at 6 o' Clock position, bleeding P.V. and she gave her report Ext. PW2/A. The prosecutrix was operated open by Dr. Geeta Gupta who gave her reports Ext. PW2/B and Ext. PW2/C.

(3.) THE petticoat (Ex P-1) and Jersy (Ex.P-2) which were worn by the prosecutrix were also taken into possession by the police. The appellant was arrested on the same day from his house by S.I. Rajbir Singh under section 354 I.P.C. and was re-arrested by Inspector Dal Chand on 25th March, 1931 when the offence was changed from the one under section 354 IPC. to the one under section 376 I.P.C. On 28th March, 1981 Inspector Dal Chand got removed the underwear (Ext. P-3) which the apparent was wearing and took into possession after converting it into sealed parcel. The reports of the C.F.S.L. and serologist Ext. PW12/B and Ext. PW12/C respectively were obtained. The appellant was then challaned under section 376 I.P.C.