SAMEY SINGH Vs. STATE

JUDGEMENT

(1.) The appellant was initially charged for an offence under Section 376, IPC, but ultimately the Trial Court convicted the appellant under Section 376 read with Section 511, IPC. The brief facts necessary to dispose of this appeal are recapitulated in the succeeding paragraphs

(2.) The case of the prosecution is that the appellant, the prosecutrix and her family lived in the same building. The appellant worked with the father of the prosecutrix in the Delhi Milk Scheme. The prosecutrix was about 6 years of age at the time of this unfortunate incident. The case of the prosecution is that on 12.9.1975, when the prosecutrix was alone in her apartment, the appellant approached and asked her to bring a bidi packet for him but she declined. Thereafter, the appellant took her to his room and opened her pyjama and had sexual intercourse with her. The prosecution story further reveals that there was bleeding from her vagina and her pyjama became blood stained and the accused tried to wipe out the blood and thereafter placed the pyjama behind a trunk in her house. The appellant also made the prosecutrix wear another pyjama. In her statement, she stated that she had narrated the entire incident to her mother after three days. The First Information Report in this case was lodged on 16.9.1975 though the alleged incident had taken place on 12.9.1975.

(3.) The prosecution examined 17 witnesses. The Trial Court noted a significant fact that according to the medical evidence, the doctor who examined the prosecutrix Sunita, could not be produced as he had left the services of the hospital. The medical report, however, revealed that "her hymen was intact and there was non mark of injury on the vagina". There was thus no actual penetration or complete sexual intercourse. The Trial Court observed that in these circumstances, the appellant cannot be held guilty of the offence under Section 376, IPC, and instead convicted the appellant under Section 376, Indian Penal Code read with Section 511, IPC, and sentenced him to one year's R.I.