CRA No.948-SB of 2000 -1 v. State of Haryana

Judgment

1. The appellant has come in appeal against the judgment and order dated 18.09.2000 (hereinafter referred to as ‘impugned judgment’) passed by the learned Additional Sessions Judge, Jagadhri, (hereinafter

referred to as ‘trial Court’) whereby the appellant has been convicted for the offence punishable under Section 376 IPC and awarded the sentence to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.2,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of two months.

2. The brief facts of the case, as emanating from the prosecution version, are that on 10.05.1999, the prosecutrix along with her husband, Narinder Kumar and mother-in-law, Soma Devi, came to CRA No.948-SB of 2000 -2- the Police Station and made a statement that at about 4.30/5.00 a.m., she had gone to answer the call of nature. When she was easing herself, accused-Raj Kumar caught hold of her from the back and made her to fall on the ground. He gagged her mouth by inserting her ‘chunni’ and dragged her in grass (bushes) and forcibly took off her ‘salwar’ and raped her. At that time, she became unconscious and on regaining consciousness, she came back to her house without the ‘salwar’. In the meanwhile, the accused had fled away from the spot. On reaching house, the prosecutrix narrated the whole incident to her husband who brought her ‘salwar’ back. Thereafter, the prosecutrix along with her husband went to the house of accused-Raj Kumar to make complaint about the incident but the family members of the accused did not pay any heed to them. They did not report the matter to the Police as Sito Devi, mother-in-law, of the prosecutrix was away to her daughter’s house at Village Ratoli and due to apprehension of threat at the hands of the accused and his family. On return of Sito Devi, the Panchayat was convened and on its asking, the matter was reported to the Police.

3. After completion of the investigation and upon presentation of the challan, the accused was charge-sheeted under Section 376/506 IPC to which he pleaded not guilty and claimed trial.

4. In order to substantiate its case against the accused, the prosecution examined as many as 13 witnesses, namely, PW1-Dr. B S Deswal; PW2-Dr. Neenu Kalra; PW3- HC Zile Singh; PW4-Constable Som Nath; PW5-Constable Ram Kumar; PW6-Rajesh Sharma; PW7- UGC Raj Kumar; PW8-HC Jasmer Singh; PW9-Sh. Ajay Tewatia, JMIC; PW10-Prosecutrix; PW11-Sona Devi, mother-in-law of the prosecutrix; CRA No.948-SB of 2000 -3- PW12-Narinder Kumar; and PW13-Inspector Mam Chand Walia.

5. When examined under Section 313 of the Code of Criminal Procedure, the accused denied the incriminating circumstances appearing against him in the prosecution evidence and pleaded innocence. In his defence, the accused examined Ram Kumar, Record Keeper, as DW1 and Shashi Bhushan, Retired DRA, as DW2.

6. After hearing learned counsel for both the parties, learned trial Court convicted and sentenced the accused for the offence and term, as noticed at the outset of this judgment.

7. Feeling aggrieved from the judgment of conviction and order of sentence, the appellant has preferred this appeal before this Court; which was admitted vide order dated 09.10.2000.

8. Learned counsel for the appellant has submitted that a day before the alleged occurrence, an altercation took place between the parties as the complainant party was in an unauthorized possession of the land owned by the appellant. He has further submitted that this unauthorized possession is acknowledged by the complainant herself. Thus, the learned counsel contends that the FIR in the present case is a pressure tactics to dissuade the appellant from raising the issue of encroachment.

9. Learned counsel has further stated that there are material contradictions in the statements of the prosecutrix and her husband, Narinder Singh, PW12, with regard to the duration the complainant stayed away from the house. It has specifically come in the statement of the prosecutrix that the appellant took more than 30 minutes to commit the crime. It has also come in her testimony that she became CRA No.948-SB of 2000 -4- unconscious as soon as rape was committed upon her and she regained consciousness after one hour whereas Narinder Singh, PW12, has specifically stated that his wife came back within 20 minutes and he was awake during this period.

10. Learned counsel has further referred to the statement of the complainant wherein she has stated that she received injuries inside her mouth on account of her mouth being gagged with ‘dupatta’ and on other parts of the body. He has argued that as per the statement of Dr. Neenu Kalra, PW2, who medico-legally examined the prosecutrix on

10.05.1999, no abrasion, bruise or injury on the person of the prosecutrix were noticed. Learned counsel has further referred to the photographs on record to make out an argument that as the place of occurrence is uneven and having thick bushes, hence, non-receipt of injury in such conditions would be impossible.

11. Learned counsel has further referred to the FSL report, dated 10.5.1999, Ex.PD, wherein the results of Serological Tests of semen on the clothes have remained inconclusive. He has contended that the same was not got matched and, therefore, it cannot be said that rape was committed on the complainant.

12. On the other hand, learned State counsel submitted that no woman would level false allegation of rape as it invites stigma. He has further submitted that the appellant has committed the act out of vengeance as there had been an altercation between the parties prior to the occurrence.

13. I have heard learned counsel for the parties and perused the record. CRA No.948-SB of 2000 -5-

14. As per the case of the prosecution, the accused gagged the mouth of the complainant with her ‘dupatta’. The complainant was dragged into bushes where the alleged act of physical abuse was committed upon her. However, Dr. Neenu Kalra, PW2, who medico- legally examined the prosecutrix has stated that no abrasion, bruise or injury were noticed on the person of the prosecutrix at the time of conducting medico-legal examination. As per Ex.PD/11, which pertains to the serological test of semen on the clothes, viz., Pant, Langot, Salwar, Lady’s Shirt and Salwar, remained inconclusive. The prosecution has also not been able to explain as to why two ‘salwars’ were sent to FSL for the serological test. Moreover, as the test report remained inconclusive, it cannot be said that the complainant was physically abused and act of rape was committed upon her by the accused.

15. Apart from the non-explanation of sending two ‘salwars’ for serological test, there are material contradictions in the statements of the prosecutrix and her husband, Narinder Kumar, PW12. It has come in the testimony of the husband that he accompanied his wife to the house of the appellant in a naked position which appears to be an exaggeration, coupled with the fact that as per the statement of the prosecutrix that the appellant took more than 30 minutes in assaulting her physically and thereafter she became unconscious, whereas PW12 has stated that the prosecutrix came back home within 20 minutes of the occurrence. This witness has specifically stated that he was awake when his wife left home and came back.

16. It is further relevant to note that as per the report prepared by CRA No.948-SB of 2000 -6- Dr. B S Deswal, PW1, no injury was noticed on the person of the appellant. At the time of alleged occurrence, the prosecutrix was 30 years of age whereas the appellant was of 19 years. Both the complainant and the appellant come from the labour class and women coming from the labour class are generally stout, physically strong and it has not come on record as to why no resistance was offered by her particularly, when there is no allegation that the accused was armed with any weapon. As regards, the argument raised by learned counsel for the State that no woman would like to suffer such a stigma, does not have a universal application, particularly when the strained relationship between the parties is not in dispute. In such a situation, possibility of false implication cannot be ruled out. Hon’ble the Supreme Court, in Pandurang Sitaram Bhagwat Vs. State of Maharashtra, 2005(1) RCR (Criminal)858, has observed as under:- “21. The exact place of occurrence and the manner in which the purported offence of outraging the modesty was committed by the Appellant, furthermore, materially differ. Whereas PW-2 asserted that the Appellant came inside the house and embraced her from the back, when she was watching T.V. sitting; PW-4 stated that the incident took place when she was proceeding towards the kitchen. The observations made by the learned appellate court is based on surmises and conjectures. The said discrepancy even if ordinarily could not have been the basis of passing a judgment of acquittal, but in this case, as noticed hereinbefore, the conduct of both PW-2 and PW-3 being CRA No.948-SB of 2000 -7- suspect, it would not be safe to rely on a part of their statements as prosecution witnesses”

17. I also do not agree with the assertion of the learned counsel for the State that no lady would record a false FIR as she would not put her character at stake. Mere this ground has no universal truth but each case has to be examined on the touchstone of the factual matrix thereof.

18. In view of the material contradictions in the statements of the complainant and Narinder Kumar, PW12, and there being no positive medical evidence to the effect that rape was committed upon the prosecutrix by the appellant and keeping in view the hostilities between the parties, I am of the considered view that the prosecution has not been able to establish its case beyond reasonable doubt.

19. Resultantly, the appeal in hand is allowed and the appellant is acquitted after giving him the benefit of doubt. The impugned judgment of conviction and order of sentence passed by the learned trial Court is hereby set aside. The appellant is stated to be on bail. His bail bonds shall stand discharged. November 30, 2010 atulsethi (JITENDRA CHAUHAN) JUDGE Note : Whether to be referred to reporter ? Yes/No