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2000 DIGILAW 578 (PNJ)

Rekh Bahadur v. State Of Haryana

2000-05-26

A.N.JINDAL, AMAR DUTT

body2000
Judgment Amar Dutt, J. 1. Rekh Bahadur has filed the present appeal to challenge the conviction and sentence imposed upon him by the Additional Sessions Judge, Panipat on 23/24.11.2001. 2. Briefly stated, the facts of the prosecution case as brought out in the testimony of its witnesses are that Vishnu Bahadur PW12 was employed as a labourer in Hargo Textile, Panipat. He used to live in the factory along with his wife, six years old son Umesh and two years old daughter Bhawani. The appellant was employed as a Chowkidar in the factory. On 3.10.1997 when Vishnu Bahadur returned to his house at 4.00 P.M., he found that his daughter is not present in the house and Rekh Bahadur, Chowkidar was not available in the factory. Along with Hukam Bahadur, he started searching for his daughter and near the water tank of Haryana Urban Development Authority, Panipat he found her. She was bleeding and thereupon Vishnu Bahadur and Yash Pal Singh PW13 went to the Police Station. Yash Pal Singh, who was working as a J.E. with Chattar Singh Saini, Contractor of Delhi made a statement to the effect that on 3.10.1997 at 4.00 P.M. he along with Kesra Ram, Ramesh and Naresh Kumar was sitting inside the boundary wall of their office and godown which is situated near the Haryana Urban Development Authority park. In the meantime, they saw a small girl of about four years coming weeping from the side of the M.J.R. School road. On getting up, they saw the girls frock smeared with blood and she was having blood stains on her legs and private parts. According to his statement, the girl appeared to be Nepalese and some unknown person seems to have committed rape on her at some unknown place in the jungle. After search, Vishnu Bahadur son of Hari Lal, the father of the girl had come present and disclosed the name of the girl as Bhawani and on the basis of the statement of Yash Pal Singh, ASI Ram Chander PW14 had recorded the FIR. After registration of the FIR, ASI Ram Chander had gone to the spot where the father of Bhawani had met him and statement of Vishnu Bahadur was also recorded. ASI Ram Chander thereafter had accompanied Vishnu Bahadur and child to their quarter and there the statements of Kamla and Man Bahadur were recorded. After registration of the FIR, ASI Ram Chander had gone to the spot where the father of Bhawani had met him and statement of Vishnu Bahadur was also recorded. ASI Ram Chander thereafter had accompanied Vishnu Bahadur and child to their quarter and there the statements of Kamla and Man Bahadur were recorded. The child was got medico legally examined at the Civil Hospital, Panipat from Dr. Abha Bhawan PW10. Doctor had taken the swabs and prepared the slides, which were sealed by ASI Ram Chander with the seal of RS and both the parcels along with samples were taken into possession through memo Ex.PW7/A, which was attested by Head Constable Rambir. The parcel was deposited with MHC on the same day. In the evening of 6.10.1997 ASI Ram Chander was present near the Truck Union in connection with patrol duty, where Hukam Bahadur produced the appellant, who was interrogated and got medico legally examined. After medical examination of Rekh Bahadur, the Doctor handed over to ASI Ram Chander one parcel containing underwear worn by the appellant, which was taken into possession through recovery memo Ex.PD. The appellant was arrested and put in the lock up. On 7.10.1997 on pointing out of Kamla and Hukam Bahadur a rough site plan Ex. PL was prepared. Investigating Officer also recorded the statement of owner of the factory. On completion of the investigation, a challan was presented against the appellant before the Illaqa Magistrate, who committed the same to the Court of Sessions for trial as offences disclosed therein were exclusively triable by that Court. 3. On going through the papers sent up with the challan, the trial Court found that prima facie a case was made out against the appellant under Section 376 IPC and, accordingly, framed the charge under that Section and when the appellant pleaded not guilty to the charge, the prosecution was called upon to lead its evidence. 4. To bring home the charge, the prosecution examined SI Shamsher Singh as PW1, Constable Mangat Ram as PW2, HC Randhir Singh as PW3, Constable Ram Phal as PW4, Constable Jagbir Singh as PW5, Navneet Kumar as PW6, Head Constable Rambir Singh as PW7, Constable Ram Niwas as PW8, Dr. Arun Sehgal as PW9, Dr. Abha Bhawan as PW10, ASI Ram Kumar as PW11, Vishnu Bahadur as PW12, Yash Pal Singh as PW13 and ASI Ram Chander as PW14. 5. Arun Sehgal as PW9, Dr. Abha Bhawan as PW10, ASI Ram Kumar as PW11, Vishnu Bahadur as PW12, Yash Pal Singh as PW13 and ASI Ram Chander as PW14. 5. After completion of the prosecution evidence, when the incriminating circumstances appearing in the prosecution evidence were put to the appellant, he denied all of them and asserted as under :- "I have been falsely implicated in this case. I and Vishnu Bahadur and Hukam Bahadur were neighbours and due to suspicion I have been falsely implicated in this case." In defence, appellant, however, chose not to lead any evidence. 6 After hearing the arguments, the trial Court came to the conclusion that appellant had raped Bhawani and taking into consideration the entire gamut of circumstances brought on record in which the crime was alleged to have been perpetrated convicted him under Section 376 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5000/-. In default of payment of fine, he was ordered to undergo further imprisonment for six months. Hence, the present appeal. 7. We have heard Mr. Surender Deswal, learned counsel for the appellant and Mr. B.S. Rana, learned Senior Deputy Advocate General, Haryana and perused the record. 8. The prosecution version in the present case has been unfolded in the testimonies of Vishnu Bahadur and Yash Pal Singh. The prosecution had also examined Navneet Kumar as PW6, who is owner of the factory where Vishnu Bahadur and Rekh Bahadur were employed. In addition to this, the prosecuting agency brought on record the evidence pertaining to the medico legal examination of Bhawani as well as the appellant and tendered in evidence the report Ex.P1 of the Forensic Science Laboratory, Madhuban. Statement of Vishnu Bahadur, father of Bhawani does not in any way help us to fix the identity of the person, who is alleged to have raped Bhawani. There is no mention of the appellant in the statement of Vishnu Bahadur PW12 and it is only in his re- examination that Public Prosecutor, who had by then realised the folly committed by him had been able to elicit the following information :- "Rekh Bahadur had committed rape with my daughter. I was told by my daughter that Rekh Bahadur had committed rape with her." 9. I was told by my daughter that Rekh Bahadur had committed rape with her." 9. The defence counsel did not lag behind and brought on record the following fact in further cross examination :- "I did not disclose to the police that my daughter had told me that Rekh Bahadur accused committed rape with her. It is wrong to suggest that no rape was committed by the accused with my daughter and the accused has been falsely involved in this case." 10. Bhawani had not been examined by the prosecution possibly on account of tender age of the witness. Prosecuting Agency had tried to corroborate the prosecution version through the medical evidence, which only brings out on record the fact that :- "Pernemum was torn upto anal margin. Posterior vaginal wall and left lateral vaginal wall tears were present in mucosa and muscles." Finally, Doctor gave an opinion to the effect that :- "I have seen the report of FSL Ex.PI and after going through the report, I am of the opinion that possibility of intercourse cannot be ruled out." but in cross-examination, she went on to say to the effect that :- "It is correct that such injuries are possible due to fall on a sharp edged weapon." 11. In these circumstances, the entire case would normally have turned upon the result of the examination of the swabs and slides taken from the vagina and the smears found on the frock. The Ex.P1-report of the Forensic Science Laboratory is to the following effect :- "Laboratory examinations were carried out to detect the presence of semen/blood on the exhibits. Blood thus detected was subjected to serological tests to determine its species of origin. Based upon these examinations, the results obtained have been analysed as given below :- 1. Exhibit-1 (Frock) was stained with numerous large and small blood stains. However, semen could not be detected on this exhibit. 2. Blood was detected on exhibit-2a (Slides) and exhibit 2b (Swabs). However, semen could not be detected on this exhibit. 3. Neither blood nor semen could be detected on exhibit 3 (Kachha). Note :- 1. Result of serological tests of blood are attached. 2. After examinations the exhibits along with their original wrappers have been sealed with the seal of AD (BIOL) FSLH. xxx xxx xxx xxx xxx Results of Serological Analysis of Blood Exbt. No. Name of Exhibit Origin Group 1. Note :- 1. Result of serological tests of blood are attached. 2. After examinations the exhibits along with their original wrappers have been sealed with the seal of AD (BIOL) FSLH. xxx xxx xxx xxx xxx Results of Serological Analysis of Blood Exbt. No. Name of Exhibit Origin Group 1. Frock Human. 12. The result made available by the Forensic Science Laboratory do not in any way support the conclusion that the Bhawani had been raped. If that was so, the examination of the vaginal swabs would indicate the presence of semen as also semen would be present at the frock as well as the underwear. When we look at the result of the medico legal examination of the accused, we find that although Dr. Arun Sehgal PW9 had given his opinion that there was nothing to suggest that Rekh Bahadur was incapable of doing sexual intercourse yet the absence of any injury on any part of his body especially the penis would point in the direction of prosecution story being untrue. Although we are not able to discern any motive for Rekh Bahadur being named as culprit yet there is also no explanation available as to why the police did not record the statement of Vishnu Bahadur as the first informer in the case when he is alleged to have gone to the Police Station to set into motion the investigative machinery of the State. Be that as it may, criminal jurisprudence casts a heavy onus on the prosecution to prove its case beyond reasonable doubt and in the present case, we find the same not having been discharged rather the case is replete with infirmities which are not explained, we deem it appropriate to give the benefit of doubt to the appellant. 13. For the reasons recorded above, we allow the appeal and acquit the appellant of the charge framed against him.