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2002 DIGILAW 1263 (PNJ)

Subhash Chand v. State Of Haryana

2002-11-20

R.L.ANAND

body2002
Judgment R.L.Anand, J. 1. Subhash Chand son of Shri Prem Chand, has filed the present appeal and it has been directed against the judgment and order dated 16.2.1989, passed by the Court of learned Sessions Judge, Kurukshetra, who convicted the appellant under Section 376 of the Indian Penal Code and sentenced him to undergo R.I. for a period of five years. 2. The allegations against the appellant are that on 16.10.1988 he allegedly committed rape upon Raj Rani, aged 8 years, daughter of PW6 Bachan Singh and Smt. Parkash Kaur PW5, at about 12 noon in a room in the fertilizer depot premises in the area of Pipli. The appellant was arrested under Section 376 IPC vide FIR No. 213 dated 16.10.1988, registered in Police-Station, Sadar Thanesar. On the completion of the investigation of the case, accused was challaned in the Court of area Magistrate who vide order dated 30.11.1988 committed the accused-appellant to the Court of Session to face the trial. He was charged under Section 376 IPC by the learned trial Court. The charge- sheet was read over and explained to the appellant to which he pleaded not guilty and claimed trial. 3. In order to prove the charge, the prosecution examined PW1 Lady Dr. Mrs. Satinder Doda who on 17.10.1988 at about 10 A.M. conducted medico legal examination of Raj Rani prosecutrix. PW-2 is Dr. B. Allawadi, Radiologist who after conducting the x-ray examination of the prosecutrix, declared that she was aged about 10 to 12 years. PW-3 Dr. Subash Chander Grover medico legally examined the accused-appellant and issued MLR Ex.PC/1 and stated that there was nothing to suggest that the appellant could not commit sexual intercourse. PW-4 Raj Rani, prosecutrix, was unable to answer the questions put to her by the Court and therefore, she was discharged. PW-5 Smt. Parkash Kaur and PW-6 Shri Bachan Singh are the parents of the prosecutrix. PW-7 is Mukesh Kumar Draughtsman who prepared the scaled site plan Ex.PF of the place of occurrence while PW-8 S.I. Gian Singh is the Investigating Officer. 4. During the course of investigation, accused was arrested on 18.10.1988 and he was wearing Pajama Ex.P.1 which was got removed from his person and a sealed parcel was prepared. On 19.10.1988, accused-appellant was interrogated about his clothes and he suffered a disclosure statement Ex.PK and in pursuance of that he got recovered kuchha Ex.P.2. 4. During the course of investigation, accused was arrested on 18.10.1988 and he was wearing Pajama Ex.P.1 which was got removed from his person and a sealed parcel was prepared. On 19.10.1988, accused-appellant was interrogated about his clothes and he suffered a disclosure statement Ex.PK and in pursuance of that he got recovered kuchha Ex.P.2. The Thanedar made a sealed parcel thereof and it was taken into possession vide memo Ex.PK/1. 5. On the closure of the evidence of the prosecution, the statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied those allegations and stated that he has been falsely implicated in this case. 6. The learned trial Court for the reasons given in the impugned judgment, has convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence, the present appeal. 7. I have heard Shri D.S. Bali, learned counsel appearing on behalf of the appellant and Shri D.P. Singh, learned Addl. A.G. appearing on behalf of the State and with their assistance have gone through the record of the case. 8. The FIR in this case was got recorded by Shri Bachan Singh, father of the prosecutrix. He was not the eye witness of this case. The case set up by Shri Bachan Singh in the FIR was that he was a resident of Pipli and survives himself by begging alms. He had six children. On the day of incident at about 8.00 A.M. he left his wife Parkash Kaur and the remaining children at his house and went to village Bohli for collecting alms. He returned back to his house at about 4.00 P.M. after collecting alms and saw that his daughter Raj Rani alias Rajji was lying on a cot outside the house and was weeping. His wife Parkash Kaur told him that she had sent Raj Rani alias Rajji about 12 noon for bringing sugar from the shop. She came back empty handed at about 1.30 P.M. and she was weeping. Parkash Kaur asked her as to what was the matter upon which Raj Rani told her mother that Subhash who was working at the Fertilizer shop had committed forcible intercourse upon her. She came back empty handed at about 1.30 P.M. and she was weeping. Parkash Kaur asked her as to what was the matter upon which Raj Rani told her mother that Subhash who was working at the Fertilizer shop had committed forcible intercourse upon her. Then she saw her daughter and found that her clothes were stained with blood and her vagina was torn and blood was oozing out of it. On hearing this, the complainant took his daughter Rajji and his wife to Civil Hospital, Kurukshetra where the doctor asked the complainant to lodge a report in the police-station. Thereafter, he along with his wife and daughter Rajji returned to the house. He left his wife and daughter at the house and came to the police-station for lodging the report. It is also alleged by the complainant that Subhash Chand son of Prem Chand is Balmiki by caste and he was working on a fertilizer shop situated adjacent to his house, for the last about three years. Thus, the source of information to the complainant is his wife Smt. Parkash Kaur and she too got the information about ate alleged rape from his daughter Ms. Raj Rani alias Rajji. 9. The point which survives for determination in this appeal is whether it stands proved that the appellant committed rape on Raj Rani or not ? 10. The testimony of Raj Rani is very vital for us for determining this point. Raj Rani alias Rajji appeared as PW4 and the learned trial Court made the following observation :- "The witness is unable to understand the sanctity of oath. My father is a beggar. A person who tell lie gets Pun. A person who tells the truth also gets Pun. The name of my mother is Ma. The name of my father is Pappa. The witness is unable to answer questions put by the Court. Hence, she is discharged." 11 If this is the position of the prosecutrix how it can be believed that she had narrated the entire incident to her mother that the appellant was responsible for committing rape upon her. 12. On the contrary, the case set up by Smt. Parkash Kaur is that her daughter told her that Subhash had committed rape upon her in the room of fertilizer depot. If this was the position, Ms. 12. On the contrary, the case set up by Smt. Parkash Kaur is that her daughter told her that Subhash had committed rape upon her in the room of fertilizer depot. If this was the position, Ms. Raj Rani alias Rajji at least could point to her finger towards the appellant in the Court that he was responsible for the commission of the rape. In the absence of this vital link, it is difficult for me to believe the testimony of Smt. Parkash Kaur because her source of information with regard to the rape upon her daughter was the daughter itself who has not named the appellant while appearing in the Court irrespective of the fact that she was a girl of 8/10 years. The link between Raj Rani and Parkash Kaur is broken. Then no importance can be attached even to the statement of Shri Bachan Singh who got a derived information from his wife Smt. Parkash Kaur. At the trial stage, the case set up by Shri Bachan Singh is that on his inquiry Raj Rani had also told him that the appellant had committed rape on her in a room of fertilizer depot at Pipli. When Raj Rani was not in a position to tell about the occurrence before the trial Court, how it is possible that she had narrated the incident to her mother or father. 13. The learned trial Court while recording the conviction against the appellant has mainly relied upon the circumstantial evidence i.e. the clothes of the prosecutrix as well as clothes of the accused. In para No. 7 of the judgment it has been observed by the trial Courts as under :- "7. The slides and salwar and Kamiz were examined in the Laboratory and vide report Ex.PG and Ex.PG/1 it was found that salwar and shirt were stained with human blood of "B" group. Similarly kuchha of the accused on Laboratory examination was found to be stained with human blood of "B" group vide repot Ex.PG/1. It shows that blood of the prosecutrix had stained the kuchha of the accused. Group of blood of accused was not "B" because his pajama was found to be stained with blood of "O" group. Similarly kuchha of the accused on Laboratory examination was found to be stained with human blood of "B" group vide repot Ex.PG/1. It shows that blood of the prosecutrix had stained the kuchha of the accused. Group of blood of accused was not "B" because his pajama was found to be stained with blood of "O" group. This is strong incriminating circumstance against the accused indicating that the accused had committed sexual intercourse on the prosecutrix during the course whereof blood oozed out from the private parts of the prosecutrix and had stained the kuchha of the accused." 14. In my opinion this is not a conclusive proof to establish that accused was responsible for the commission of the rape. At the most this was a corroborative piece of evidence to the testimony of the prosecutrix who unfortunately has not pointed out any incriminating finger towards the appellant. In the absence of any evidence of the prosecutrix that appellant was responsible for the rape, I am inclined to give the benefit of doubt to the accused-appellant. Resultantly, the appeal is hereby allowed impugned judgment and order are set aside and the appellant is acquitted of the charge. Appeal allowed.