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2003 DIGILAW 1080 (PNJ)

Mohinder Singh v. State of Haryana

2003-08-06

V.M.AGGARWAL

body2003
JUDGMENT V.M. Jain, J. - This appeal has been filed by the accused-appellant against the judgment and order dated 20.4.1991, passed by the Additional Sessions Judge, convicting the accused-appellant for the offence under Section 376 Indian Penal Code and sentencing him to undergo RI for five years and to pay fine of Rs. 1,000/- and in default of payment of fine to undergo further RI for 3 months. 2. As per the case of the prosecution, on 27.3.1989, Smt. Sarbati Devi, PW had gone to the sugarcane field for Niranjan Singh to collector golas (sugarcane foliage) left her buffaloes and that at about 12 noon when she had left for her house after taking golas and was going on the dol of the sugarcane field, in the meanwhile accused Mohinder Singh, came from behind and caught hold of her and the golas fell from her head and thereupon, the accused forcibly took her to the sugarcane field and felled her on the ground and thereafter he forcibly opened the string of her salwar and thereafter committed rape upon her. It was alleged that she raised raula "bachao bachao", whereupon accused Mohinder Singh, put his hand on her mouth. It was alleged that after committing the rape upon her, the accused ran away from there. It was further alleged that while accused Mohinder Singh was running away from the sugarcane field, he was seen by Gurdev Singh and Balbir Singh @ Bira, PWs, who had reached there on hearing her raula, and they tried to catch hold of him but failed. It was further alleged that she had gone to narrate the incident to her husband and thereafter she had come to the police station to lodge the report and that action be taken against the accused. It was further alleged that during struggle, the koka from her nose had also fallen on the ground. After recording the aforesaid statement, Ex. PF at Police Post Barara at 6 P.M., ASI Kewal Krishan sent the same to the police station on the basis of which formal FIR under Section 376 Indian Penal Code was recorded in PS Mullana at 6.30 P.M. The case was investigated by the police, the prosecutrix was got medico- legally examined, the accused was arrested in this case and after completion of the investigation, challan was submitted in the Court. 3. 3. The prosecution produced its evidence against the accused. Thereafter, the statement of the accused under Section 313 Criminal Procedure Code, was recorded in which he denied the prosecution allegations against him and stated that he was innocent and had been falsely implicated in this case due to party politics. However, he did not produce any witness in his defence. After hearing both sides, the learned Additional Sessions Judge, convicted and sentenced the accused- appellant as stated above, vide judgment and order dated 20.4.1991. Aggrieved against the same, accused-appellant Mohinder Singh filed the present appeal in this Court. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. The learned counsel for the accused-appellant has submitted before me that no reliance whatsoever can be placed on the testimony of PW-6, Smt. Sarbati Devi and PW-7 Gurdev Singh, with regard to the involvement of the accused- appellant in the crime. It was submitted that nothing has come on the record to show that the accused-appellant had forcibly committed sexual intercourse with the prosecutrix Smt. Sarbati Devi, against her will and as such the trial Court had erred in law in convicting and sentencing the accused-appellant. 6. There is considerable force in this submission of the learned counsel for the accused-appellant. PW-5 Dr. Ritu Malhotra, had medico-legally examined Smt. Sarbati Devi, prosecutrix on 27.3.1989. She did not find any fresh mark of injury caused by finger nails on the face, abdomen, thighs or any other part of the body, to indicate any struggle. It was found that Smt. Sarbati Devi was aged 35 years and had given birth to one male and one female child and the birth of the last child had taken place about 11 years back. It was found that no bruising or abrasion or laceration was found on the external genital. She proved the copy of the medico-legal report Ex. PE and stated that she had taken the vaginal swabs and salwar of the prosecutrix and the same were duly sealed and handed over to the police. She stated that since there was no sign of struggle, she had not mentioned in her report that the prosecutrix was subjected to rape. 7. PW-6 Smt. Sarbati Devi, prosecutrix, during examination-in-chief, reiterated the allegations made by her in the statement before the police. She stated that since there was no sign of struggle, she had not mentioned in her report that the prosecutrix was subjected to rape. 7. PW-6 Smt. Sarbati Devi, prosecutrix, during examination-in-chief, reiterated the allegations made by her in the statement before the police. During cross-examination, she stated that she had two children aged 15 years and 13 years. She stated that she was accompanied by at least 20-25 persons while she was working in the field of Niranjan Singh. She admitted that all those persons were also working in the fields of Niranjan Singh. She stated that the place of occurrence is about three killas from the field of Niranjan Singh. She stated that when she was going, accused Mohinder Singh came from behind and pushed her whereupon she fell down and after overpowering her, he committed rape upon her. She stated that on the day of occurrence, she was wearing a printed white suit and was not wearing any undergarment. She stated that first of all the accused had put off her salwar and thereafter he overpowered her. She stated that she could not give the time taken by the accused in committing rape but it may be half to an hour. She stated that Gurdev Singh, PW is her distant relation. She stated that on hearing her cries, Gurdev Singh, PW, who was crossing those fields came to her rescue and on seeing him, the accused ran away. She stated that Gurdev Singh, PW is Incharge of the Post Office in her village. She stated that Gurdev Singh and Balbir Singh came to her after about 10 minutes on hearing her cries. She stated that she knew the accused for the last about 10-12 years. She denied the suggestion that previously she had levelled similar allegations against one Gurmail Singh. She also denied the suggestion that after the present case she had been sent back to her parents house for about two months. She stated that she knew Pala but denied the suggestion that she had made similar allegation of rape against Pala also. She denied the suggestion that the accused had sexual intercourse with her with her consent or that she raised the cries on seeing Gurdev Singh and Balbir Singh, in order to save her skin. 8. She stated that she knew Pala but denied the suggestion that she had made similar allegation of rape against Pala also. She denied the suggestion that the accused had sexual intercourse with her with her consent or that she raised the cries on seeing Gurdev Singh and Balbir Singh, in order to save her skin. 8. PW-7 Gurdev Singh, deposed that he was coming from the fields of Pal Singh after taking grass and that at that time he heard the cries of the prosecutrix, who was crying for help from the fields of Niranjan Singh and on seeing him the accused ran away towards the fields and he tried to catch him but he ran away. He stated that in the meantime the prosecutrix had also come out of the fields, who informed him that the accused had committed rape upon her. He stated that Balbir Singh also joined him at the spot. During cross- examination, he admitted that the prosecutrix was his distant relation. He admitted that he was working in the village Post Office as Incharge on daily wages. He denied that he had deposed falsely being the distant relation of the prosecutrix. 9. From the evidence led by the prosecution, in my opinion, it could not be said that the accused-appellant had committed forcible sexual intercourse with the prosecutrix, as alleged by her. There is absolutely no corroboration to the bald testimony of PW-6 Smt. Sarbati Devi about the manner in which the occurrence had allegedly taken place. Even the medical evidence does not support the prosecutrix in this regard, inasmuch as PW-5, Dr. Ritu Malhotra, who had medico-legally examined the prosecutrix, on the same evening, did not find any material to indicate that rape was committed upon the prosecutrix. In fact, Dr. Ritu Malhotra had stated that since there was no sign of struggle, therefore, she had not mentioned in her report that the lady was subjected to rape. I am further of the opinion, that no reliance can be placed on the bald testimony of PW-6, Smt. Sarbati Devi, considering that the place where the occurrence had allegedly taken place is stated to be about three killas from the field of Niranjan Singh, where about 20-25 persons were working, as deposed by PW-6, Smt. Sarbati Devi herself. I am further of the opinion, that no reliance can be placed on the bald testimony of PW-6, Smt. Sarbati Devi, considering that the place where the occurrence had allegedly taken place is stated to be about three killas from the field of Niranjan Singh, where about 20-25 persons were working, as deposed by PW-6, Smt. Sarbati Devi herself. It is not possible to believe that during day time, accused-appellant Mohinder Singh would commit sexual intercourse with Smt. Sarbati Devi, forcibly in the sugarcane field when at a distance of three killas from the said place, about 20-25 persons were working. If Smt. Sarbati Devi had raised raula, as stated by her, those 20-25 persons would have been attracted to the spot, considering the short distance at which they were working. However, none of them had come to the spot on hearing her raula. So far as PW-7, Gurdev Singh, is concerned, he is an interested witness, being related to Smt. Sarbati Devi. The other witness namely Balbir Singh was not examined. Furthermore, PW-7, Gurdev Singh had nowhere stated anything to corroborate the allegations of PW-6 Smt. Sarbati Devi, that she was subjected to sexual intercourse forcibly at the hands of the accused. He only stated that it was prosecutrix who had come out of the field and he told him that the accused had committed rape upon her. In my opinion, in the absence of any corroboration of any kind, including medical evidence, the testimony of PW-6 Smt. Sarbati Devi would not be sufficient to hold the accused guilty in this case. On the other hand it appears to be a case of consent and the accused-appellant has been falsely implicated in this case by making it a case of forcibly sexual intercourse. In my opinion, learned trial Court failed to properly appreciate the evidence available on record and had erred in-law in holding the accused guilty in this case. 8. For the reasons recorded above, the present appeal is allowed, the conviction and sentence of the accused-appellant are set aside and the accused-appellant is acquitted of the charge framed against him. Appeal allowed.