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2003 DIGILAW 1059 (PNJ)

Mahender v. State of Haryana

2003-08-01

HARJIT SINGH BEDI

body2003
JUDGMENT H.S. Bedi, J. (Oral) - This appeal arises out of the following facts :- Mahender accused was residing in the neighbourhood of Lachhman and his wife Jamna Devi (PW-4) in Village Kotli, in the year 1999. The couple left for Lucknow for earning their livelihood, leaving behind their daughter Chameli, the prosecutrix, aged about 15 years and two other minor daughters and sons at home. About 2-3 days after her parents left, Mahender accused came to Chamelis house and after over-powering her, raped her. He also threatened that in case she conveyed this information to any body, she would be done to death. It is the prosecution story that the accused thereafter regularly visited Chamelis house and raped her frequently and on each occasion he came armed with a Barchha to intimidate her. It is also the prosecution story that Chameli became pregnant, on which she conveyed this information to the accused, who threatened kill her entire family if she disclosed this matter to any body else. When Chamelis parents returned from Lucknow after an interval of about six/seven months, she narrated, the entire episode to them and when she along with her parents went to the house of accused, they were abused by the accused and his family members on which she along with her parents rushed to the police station and lodged a complaint (Exh. PE) on 14.9.1999. An FIR (Exh. PE/2) was accordingly registered against the accused. He was arrested and medically examined and found fit to perform sexual inter-course. On the completion of the investigation, the accused was charged for an offence punishable under Section 376 of the Indian Penal Code and as he pleaded not guilty, was brought to trial. 2. The prosecution in support of its case examined, in particular, PW-1 Dr. (Mrs.) Santosh Bishnoi, who had medico-legally examined Chameli on 14.9.1999 and had found that she was carrying a fetus 28 to 30 weeks old and though her hymen was absent, there was no mark of any injury on her person; PW-2, Dr. 2. The prosecution in support of its case examined, in particular, PW-1 Dr. (Mrs.) Santosh Bishnoi, who had medico-legally examined Chameli on 14.9.1999 and had found that she was carrying a fetus 28 to 30 weeks old and though her hymen was absent, there was no mark of any injury on her person; PW-2, Dr. S.L. Aggarwal, who had examined the accused and found that there was nothing to suggest that he was unfit to perform sexual inter-course; PW-3 Sona Devi, Chamelis younger sister, who stated that about 20 months earlier, her parents had gone to Lucknow along with her elder brother, leaving her as well as her younger brothers, and Chameli in village Kotli and that Mahender accused often visited them armed with a Barchha and subjected Chameli to sexual inter- course; PW-4 Jamna Devi, Chamelis mother, who corroborated the aforesaid version; and PW-5, ASI Chand Ram, the Investigating Officer. 3. The prosecution case was then put to the accused and his statement recorded under Section 313 of the Code of Criminal Procedure. He denied the allegations levelled against him and stated that he had never visited the house of the prosecutrix and had been involved falsely on account of a property dispute between his family and the family of the prosecutrix. 4. The trial, Court in its judgment dated 10.4.2002, held that from the evidence on record, it was clear that Chameli had been more than 16 years of age at the time of the occurrence in the light of the fact that the doctor had opined that she was 17-1/2 to 18-1/2 years, on the day of the medical examination vide reports (Exhs. DD & DE). The Court also held that the delay in the lodging of the FIR stood explained in the light of the fact that there was no senior member of the family available in the village and that Chameli had been restrained by the accused from making a report by threatening her and her family and it was on this account that the FIR had been lodged belatedly and having held as above, convicted the accused under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 5000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months. 5. 5000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months. 5. I have heard Mr. G.S. Sidhu, the learned counsel for the appellant and Shri Sanjay Vashisth, Deputy Advocate General, Haryana, for the State and have also considered the findings recorded by the trial Court. 6. The fact that the prosecutrix was more than 17-1/2 years of age at the time of the medical examination on 14.9.1999, has not been seriously challenged. The only issue that, therefore, survives is as to whether the circumstances show by inference that Chameli was a consenting party to the intercourse that had been frequently performed or that the accused was a victim of false implication. It is the case of the prosecution that Chameli had not made any complaint to any body in the village for the reason that a threat had been held out by the accused towards her and her family and that in any case there was no elder in the family available in the village to whom she could have made such a complaint. To my mind, this finding appears to be erroneous on the evidence as it is clear that several persons including close relatives of the prosecutrix were living in village Kotli at the time of the incident. Sona Devi (PW-3) Chamelis sister stated that Ghunno, their earlier sister, was married in village Biggar, District Fatehabad about eight years ago, but she had been turned out of her matrimonial home and was residing with them. Jamna Devi (PW-4), Chamelis mother has admitted that Ghunno had been residing with them for the last one and a half to two years. It is clear from the evidence that the statements of these prosecution witnesses had been recorded in September, 2000, whereas the FIR has been recorded on 14.9.1999, which would show that Ghunno was in fact living in village Kotli at the time when the accused had allegedly sexually assaulted Chameli. It is clear from the evidence that the statements of these prosecution witnesses had been recorded in September, 2000, whereas the FIR has been recorded on 14.9.1999, which would show that Ghunno was in fact living in village Kotli at the time when the accused had allegedly sexually assaulted Chameli. The evidence also reveals that the prosecutriy has been at pains to withhold the information with regard to the other relatives living in village Kotli, but PW-3 Sona Devi clearly stated that the residential houses of accused Mahender and one Girdhari adjoined their house and that Girdhari was her maternal uncle in relationship, whereas Raghbir, who was her Nana, Vidya Devi her Nani and her uncle Bahadur Singh too had residences in village Kotli. In the light of this positive statement, there is no doubt whatsoever that not only Ghunno but several other close relations were available in village Kotli to whom a complaint could have been made by Chameli. The very fact that she did not make any such complaint for six months and did so only when she had no option to state the facts (when her pregnancy became apparent) clearly makes the prosecution story doubtful. It has also come in the evidence of Sona Devi (PW-3) and Jamna Devi (PW-4) that the relations between Mahenders family and their family were strained. Sona Devi stated that an altercation had taken place between her father and father of the accused some time earlier. Likewise, Jamna Devi admitted that there had been some altercation between her father and the father of the accused. The possibility of the false implication of the accused-appellant, therefore, cannot be ruled out. This appeal is accordingly allowed, the order of the trial Court is set-aside and the appellant is acquitted of the charge. Appeal allowed.