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2003 DIGILAW 1399 (PNJ)

Dinesh v. State of Haryana

2003-10-08

HARJIT SINGH BEDI

body2003
JUDGMENT H.S. Bedi, J. (Oral) - This appeal arises out of the following facts : PW3 Saraswati wife of Ramphal was sleeping in one of the rooms of her residential house during the night intervening 12/12.4.1993. Her minor daughter-Rekha (PW-4), aged about 12 years, was lying besides her on a separate cot. At about 11.00 P.M. Dinesh accused armed with a knife came into the room, put a knife on Saraswatis chest, gagged her mouth with a piece of cloth and threatened to kill her. He then dragged her to his Baithak and committed rape on her. On an alarm raised by Rekha, her grand father Diwan Singh (PW-5) and her uncles Ram Karan and Mohinder came to the spot and then rushed to the Baithak of the accused, but he pushed the prosecutrix out of the room and bolted the door from the inside. Saraswati narrated the entire story to Diwan Singh and her brothers-in-law. Ramphal, the husband of the prosecutrix, reached home the next day and the matter was thereafter reported to the police (on 13.4.1993 at 4.30 P.M.) and on its basis, the FIR (Exh. PC) was recorded at the instance of Saraswati. She was also sent for medical examination, which was conducted by PW-9 Dr. (Mrs.) Shanta Gupta. The accused was arrested on 16.4.1993 and was medically examined by Dr. Krishan Kumar (PW-1). On the completion of the investigation, the accused was charged for offences punishable under Sections 458, 342, 366, 376, 506 and 190 of the Indian Penal Code and as he pleaded not guilty was brought to trial. 2. The prosecution in support of its case relied inter alia on the evidence of PW-1 Dr. Krishan Kumar, who had examined the accused and had found nothing to suggest that he was not capable of performing sexual intercourse; PW-3 Saraswati, the prosecutrix, PW-4 Rekha, allegedly an eye-witness to the dragging of her mother; and PW-5 Diwan Singh, the father-in-law of the prosecutrix. 3. The prosecution case was then put to the accused and his statement recorded under Section 313 of the Code of Criminal Procedure wherein he pleaded innocence and stated that as his father-Sat Narain had a quarrel with Ram Karan, the brother-in-law of the prosecutrix and had also given him hockey blows, a false case has been registered against him on that account. 4. 4. The trial Court in its judgment dated 21.9.1994 observed that merely because the FIR had been lodged after a delay of 17 hours, there was no reason to discard the statement of the prosecutrix as a woman would not put her chastity to stake so as to settle scores with an enemy. It was also held that a case of consent on the part of the prosecutrix could not be said to have been proved merely for the reason that she was 35 and the accused was 20 years of age as there was no suggestion on the part of the defence that the two were in any manner involved with each other. The trial court accordingly convicted and sentenced the accused as under :- Under Section 452 Indian Penal Code to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/- and in default thereof to undergo further rigorous imprisonment for three months. Under Section 342 Indian Penal Code to undergo rigorous imprisonment for six months and to pay a fine of Rs. 100/- and in default thereof to undergo further rigorous imprisonment for one month. Under Section 366 Indian Penal Code to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/- and in default thereof to undergo further rigorous imprisonment for three months. Under Section 506 Indian Penal Code to undergo rigorous imprisonment for three months and to pay a fine of Rs. 100/- and in default thereof to undergo further rigorous imprisonment for one month. 5. However, all the sentences were ordered to run concurrently. Hence this appeal. 6. Mr V.S. Rathore, the learned counsel for the appellant, has argued that the judgment of the trial Court suffered from a glaring infirmity inasmuch as that though several persons including the closest relations of the prosectrix had come to the scene almost at the time when the rape was being committed but no FIR had been lodged till 4.30 p.m. on 13.4.1993. He has also argued that the evidence of Rekha (PW-4) destroyed the substratum of the prosecution story as she had stated that she had not seen the accused taking her mother from the place where she was sleeping. He has also argued that the evidence of Rekha (PW-4) destroyed the substratum of the prosecution story as she had stated that she had not seen the accused taking her mother from the place where she was sleeping. It has finally been argued by the learned counsel that the very nature of the story clearly suggested that the sexual intercourse, even if it had taken place, was with consent and as such, no case of rape was made out. 7. Mr. GPS Nagra, the learned Assistant Advocate General, Punjab has, however, fully supported the judgment of the learned trial Court. 8. As all three arguments of the learned counsel for the appellant are intermingled, it would be appropriate to discuss them together. 9. Admittedly, the incident had happened at about 11.00 P.M. on 12.4.1993. It is the prosecution story that Dinesh accused had entered the room where Saraswati lay asleep, had put a knife on her chest and dragged her to his Baithak, some distance away. It is also the prosecution story that Rekha had raised an alarm, which had brought Diwan Singh, Ram Karan and Mohinder, to the house of the accused and they had rescued Saraswati from his clutches. To my mind, therefore, the very fact that the FIR had been lodged after 17 hours does create a suspicion with regard to the prosecution story. Rekhas evidence, in this situation, becomes extremely significant. In her cross- examination, she stated that her grand father and her uncles had reached the room within 5 minutes of her raising an alarm and had gone to the house of the accused and had returned home after 5-7 minutes and within another 5-7 minutes had gone to sleep for the rest of the night whereas she and her mother had returned to their room to sleep and it was only when her father had returned home, the next day that the FIR had been lodged. To my mind, this story smacks of clear improbabilities for the reason that had the rape been committed, Diwan Singh and his sons would not have rested at night and their first reaction would have been to lodge an FIR or at least raise some protest in the village but they showed complete indifference as they returned to their respective rooms for the night. 10. I have also perused the site plan, Exh. 10. I have also perused the site plan, Exh. P8 prepared at the instance of the prosecutrix, in which the room where she and her daughter were sleeping has been shown at point A whereas the Baithak in which the rape had been committed is at point B, located at a distance of 160 feet. The prosecution story that Saraswati had been dragged from point A to point C through the Gali Share Aam, which was surrounded by several other residences belonging to her close relative including Ram Karan and then raped at point C is difficult to accept. It stretches credibility that such exercise could have been carried out without any body hearing some kind of noise as she was being dragged from point A to point C. It bears notice that the incident had happened in the month of April of the year when the farmers are in the process of harvesting the Rabi crop and on account of warm weather, often sleep outside. The prosecutrix was 35 years of age and the accused 20 is also an admitted fact. Thus, it appears to me to be a case of consent even assuming that sexual intercourse had taken place. 11. It has, however, been urged by the State counsel that as no such plea has been taken by the accused during trial, it was not open to this Court at this stage to arrive at such a conclusion. 12. The learned counsel for the appellant has, however, placed reliance on Shahbeg v. The State of Punjab, 1983 RCR (Criminal) 361 and Pappu v. The State of Punjab, 1985(2) RCR(Criminal) 126 to contend that even if such a plea had not been taken in defence, it was still open to the Court to infer that a case of sexual intercourse with consent was made out on the basis of the prosecution evidence. 13. The observations aforesaid are fully applicable to the facts of the present case. It is true that a woman would not ordinarily put her chastity at stake by making a false allegation of rape but though this may be the general rule, exceptions thereto are not lacking. 14. To my mind, therefore, the appeal must succeed. 15. The appeal is accordingly allowed. The appellant is acquitted of all charges. Appeal allowed.