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High Court of Delhi
SURESH KAIT, J.
Ishwar
Versus
State
Crl. A. No. 585 of 2009
Decided on : 16-01-2012
Section 376 Indian Penal Code, 1860 - Rape - [RAPE] - [CRIMINAL LAW] - [Section 376 IPC] - The court analyzed the evidence and arguments presented by both the prosecution and the defense. The key legal provisions discussed were related to the definition of rape, the requirement of penetration, and the standard of proof beyond reasonable doubt. The court's decision was influenced by the lack of conclusive evidence of penetration and the inconsistencies in the testimonies of the witnesses.
Fact of the Case:
The case involved the appellant being accused of raping an 8-year-old girl in a temple. The prosecution presented evidence including witness testimonies, medical reports, and the victim's statement. The defense argued that there was no penetration and the witnesses were unreliable due to tutoring and inconsistencies.
Finding of the Court:
The court found that the allegations of rape against the appellant were not proved beyond reasonable doubt. The court altered the conviction from Section 376 IPC to Section 354 IPC, and the appellant was acquitted of the offense under Section 376 IPC but convicted under Section 354 IPC. The appellant was released from custody as the maximum punishment for the offense under Section 354 IPC was two years, which the appellant had already served.
Issues: The key issues included the determination of whether the appellant committed the offense of rape under Section 376 IPC, the reliability of witness testimonies, and the interpretation of the legal provisions related to the definition of rape and the standard of proof.
Ratio Decidendi: The court's decision was based on the lack of conclusive evidence of penetration, inconsistencies in witness testimonies, and the application of the legal principle that even slight penetration is sufficient to constitute the offense of rape under Section 376 IPC. The court also considered the weight of the victim's testimony and the standard of proof beyond reasonable doubt.
Final Decision: The appellant was acquitted of the offense under Section 376 IPC but convicted under Section 354 IPC. The court modified the order on sentence to the period already undergone, and the appellant was released from custody.
Suresh Kait, J.
The instant appeal is being filed while assailing the judgment dated 08.07.2009 whereby, the appellant has been held guilty and convicted for the offence under Section 376 Indian Penal Code, 1860.
2. Vide order on sentence dated 11.07.2009., he was sentenced to undergo RI for 10 years and to pay a fine of Rs. 7,000/-.
3. The facts in brief of the case are that on 03.11.2008 on receipt of PCR Call, vide DD No. 19A, W/ASI Rakesh Kumari reached Surya Temple, Kabir Nagar, Street No.5, Shahdra, Delhi, where H.C. Karan Singh and Ct. Anil Kumar were already present. Smt. Sarita gave her statement to W/ASI Rakesh Kumari regarding commission of rape upon her daughter Bhagyashri (name changed), aged about 8 years by the appellant, who was working as a priest in Surya Temple, Kabir Nagar, Shahdra, Delhi on 02.11.2008 in Surya Temple in between 07:00-07:30PM, when she had gone to take Prasad over there. Prosecutrix (Bhagyashri) was sent to G.T.B. Hospital for her medical examination. From the statement of Smt.Sarita & MLC of prosecutrix, case under Section 376 Indian Penal Code, 1860 was registered against the appellant.
4. As per the prosecution case, appellant was sent for medical examination to G.T.B. Hospital through H.C. Karan Singh and Ct.Anil Kumar. Blood sample and underwear of the appellant were taken into possession. Underwear of prosecutrix was also seized. Prosecutrix was produced before ld. MM, who recorded her statement under Section 164 Cr.P.C. and thereafter, exhibits were sent to FSL.
5. After completing the investigation, challan was submitted against the appellant for the offence mentioned above. The charge was accordingly framed against the appellant, to which he pleaded not guilty and claimed trial.
6. In order to bring home the guilt of the appellant, prosecution has examined as many as 15 witnesses.
7. PW1 H.C. Pargesh Kumar on receipt of Rukka on 03.11.2008 recorded the FIR Ex.PW1/B.
8. PW3 Ct. Anil Kumar joined the investigation of the case. He along with W/ASI Rakesh Kumari took the prosecutrix to G.T.B. Hospital for her medical examination.
9. After medical examination of the prosecutrix, W/ASI Rakesh Kumari had handed over the Rukka Ex.PW1/A to him. He took the same to the Police Station and got the case registered. In his presence, site plan was prepared by the Investigating Officer.
Appellant was arrested vide arrest memo Ex.PW3/A and his personal search was conducted vide memo Ex.PW3/B.
10. W/ASI Rakesh Kumari deposited 4 parcels duly sealed with seal of G.T.B Hospital and one sealed parcel sealed with the seal of R.K. to H.C. Virender (PW4) working as MHC(M), PS-Shahdra. He recorded an entry to this effect at Serial no. 2765 on Register no.19. On 25.11.2008, he sent all the four parcels to FSL, Rohini vide R.C. no. 87/21 through Ct. Virender in intact condition.
11. PW9 Sh. Sonu Agnihotri, Ld. MM has proved the statement under Section 164 Cr.P.C. as Ex.PW9/A.
12. PW10 Dr. Arifa, medically examined the prosecutrix on 03.11.2008 and prepared her MLC Ex.PW10/A.
13. PW11 Dr. P.K. Phukan examined the appellant on 03.11.2008 and prepared his MLC Ex.PW11/A.
14. PW12 Ravinder Pratap Singh, Physical Education Teacher brought the Admission Register of M.C. Primary School and deposed that as per School record, prosecutrix was admitted in M.C. Primary School, Jyoti Colony, Shahdra, Delhi on 17.07.2008 in second standard and her date of birth was recorded as 12.01.2000.
15. PW15, Sh. V. Shankar Narain, Sr. Scientific Assistant examined the four parcels which were received in FSL, Rohini, Delhi on 25.11.2008 and gave his statement Ex.PW15/A and PW15/B.
16. The statement of the appellant was recorded under Section 313 Cr.P.C. wherein he admitted that an information, vide DD No.19A, which is Ex.PW2/A, was given by wireless operator to PS-Shahdra, Delhi. According to him this information was given personally by him to the police from his mobile phone. He denied the rest of the case of prosecution.
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