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2003 DIGILAW 1676 (PNJ)

Tillu @ Subhash v. State of Haryana

2003-12-17

K.C.GUPTA

body2003
JUDGMENT K.C. Gupta, J. - This appeal has been instituted by Tillu @ Subhash son of Ram Roop and Naresh son of Shiv Charan against the judgment and order dated 15.3.1991 passed by the Additional Sessions Judge, Bhiwani, whereby they were found guilty and convicted under Sections 376(2)(g), Indian Penal Code, and sentenced vide order of even date to undergo R.I. for 5 years each. However, they were not convicted under Section 506, Indian Penal Code as it was stated to have been merged with the other offence. 2. Briefly stated, the facts are that on 1.9.1989, PW4 Anita prosecutrix, resident of village Bapora, had gone to her fields known as distanwala Khet along with her nephew Sudhir to bring grass. Sudhir sat under the shadow of a tree while Anita prosecutrix started uprooting the grass. It was about 10.45 A.M. 3. Subhash @ Tillu and Naresh appellants came there. Subhash caught hold of Anita and lifted her and then made her lie on the ground. Naresh appellant caught hold both of her hands with his one hand and gagged her mouth with an Angocha (a piece of cloth) with the other hand. She tried to get herself freed but in vain. First of all Subhash raped her and then he caught hold of her and gagged her mouth and then Naresh raped her. Meanwhile Sudhir also came there and on seeing him, the appellants freed Anita prosecutrix. The appellants threatened Anita and Sudhir by stating that they would be done to death if they raised alarm and told the occurrence to any body and then they left the place. 4. PW4 Anita and Sudhir returned to the house and Anita told the whole occurrence to her Jethani Bimla who advised her to wait for the return of her husband who was away to Bhiwani for doing work as she (he ?) was employed in a private concern. Her husband Krishan Kumar returned to the house on 2.9.1989 and Anita told the whole occurrence to her husband. Krishan Kumar took his wife Anita to the police station where she made a statement which was reduced in the form of FIR Ex. PE. She produced the Petticoat Ex. P1 which was taken into possession vide memo Ex. PF by PW6 ASI Sampat Ram, after making it into a sealed parcel. Krishan Kumar took his wife Anita to the police station where she made a statement which was reduced in the form of FIR Ex. PE. She produced the Petticoat Ex. P1 which was taken into possession vide memo Ex. PF by PW6 ASI Sampat Ram, after making it into a sealed parcel. ASI Sampat Ram visited the spot and took into possession pieces of broken bangles vide memo Ex. PG attested by Krishan Kumar husband of the prosecutrix. He prepared the rough site plan with correct marginal notes. He also recorded the supplementary statement of Anita in which she stated that the name of her nephew is Sunil Kumar and not Sudhir Kumar. She was sent to the hospital for medico-legal examination. PW3 Dr. Vandana Pathak medico-legally examined Anita on 2.9.1989 at 7.20 P.M. and stated that she was married about 5 years back and was having two children. She further stated that there was no evidence of any external injury on her body or external genitals. She further stated that there was no injury on her vaginal wall and no bleeding was present in the vagina. She further stated that vaginal swabs were taken and sent to the Chemical examiner for analysis. On seeing the report of Chemical Examiner she stated that sexual intercourse had taken place with Anita. She proved the reports of the F.S.L. Ex. PD and PD/1. 5. ASI Sampat Ram arrested the appellants and got them medico-legally examined from PW2 Dr. Kapil Kumar who found them fit to perform sexual intercourse. Their underwears were taken into possession by the doctor after making the same into a sealed parcel and the same were handed over to the police. After completion of the investigation, challan was forwarded by SI Mohinder Singh. The challan was initially presented in the Court of Judicial Magistrate Ist Class, Bhiwani who vide his order dated 23.8.1990 committed the case to the Court of Sessions. 6. Having made out a prima facie case, the appellants were charged under Sections 376(2)(g) read with Section 506, Indian Penal Code vide order dated 4.9.1990 to which they pleaded not guilty and claimed trial. 7. In order to prove the allegations, the prosecution examined 6 witnesses. 8. 6. Having made out a prima facie case, the appellants were charged under Sections 376(2)(g) read with Section 506, Indian Penal Code vide order dated 4.9.1990 to which they pleaded not guilty and claimed trial. 7. In order to prove the allegations, the prosecution examined 6 witnesses. 8. After close of the prosecution evidence on 15.1.1991 statements of the appellants were recorded under Section 313 Criminal Procedure Code wherein they denied the allegations of the prosecution and pleaded false implication. In defence, they examined DW1 Mitter Pal Singh. He stated that he was Sarpanch of village Bapora and Chairman of thee Market Committee Bhiwani and he did not know anything about this case and ASI Sampat Ram Investigating Officer never stayed with him on 2.9.1989 at his house in village Bapora and no investigation was conducted by him in his presence. 9. After hearing learned P.P. for the State and the learned defence counsel, the learned Additional Sessions Judge, Bhiwani vide his judgment dated 15.3.1991 found the appellants guilty and convicted them under Section 376(2)(g), Indian Penal Code and sentenced vide order of even date to undergo R.I. for 5 years each. 10. Aggrieved by the said judgment and order dated 15.3.1991, the accused have filed the present appeal. 11. I have heard Mr. S.S. Siao, Advocate amicus curiae for the appellants. Mr. Sudhir Nehra A.A.G. Haryana and carefully gone through the file. 12. A persual of the FIR Ex. PF shows that it is mentioned in it that PW4 Anita had gone to the fields along with her nephew Sudhir and not Sunil. It is not her case that she had mentioned the name wrongly as Sudhir instead of Sunil out of confusion. Her statement was not recorded on 1.9.1989 although the occurrence had taken place at about 10.25 A.M. and her statement was recorded on 2.9.1989 at about 1.25 P.M. i.e. she had much time to think. It is in evidence of PW5 Sunil that Sudhir was his elder brother and he was order to him by 6/7 years. Thus Smt. Bimla had two sons namely Sunil and Sudhir. Counsel for the appellants contended that in fact none of them was present and the name of Sudhir was lateron changed to Sunil and Sudhir at the time of occurrence was found present in the school. Thus Smt. Bimla had two sons namely Sunil and Sudhir. Counsel for the appellants contended that in fact none of them was present and the name of Sudhir was lateron changed to Sunil and Sudhir at the time of occurrence was found present in the school. It is in evidence that at that time school hours were from 7.15 A.M. to 12.00 P.M. Therefore, the name of Sudhir was changed into Sunil with a purpose. Hence, it cannot be said that Sunil was present at the spot or that he had seen the occurrence and thus, he was a procured witness. 13. PW4 Anita had told the occurrence after reaching the house of her Jethani Bimla and also told the occurrence to her husband when he returned from Bhiwani on the next day but none of them has been examined in corroborate her version. 14. The statement of PW4 Anita is not believable. She stated that at about 10.45 A.M. when she was cutting the green fodder (grass) for the cow, Sunil was sitting under the shade of a tree then the appellants came there. She next stated that Subhash was called Tillu also. She further stated that Subhash caught hold of her, lifted her and put her on the ground and Naresh caught hold of her both hands with his one hand and gagged her mouth with a Angocha with the other hand and then Subhash raped her and thereafter Subhash caught hold of her and Naresh raped her. 15. PW5 Sunil stated that when he heard the notice in a low voice of Bachao then he saw that both the appellants were doing bad work with his Chachi and when he went quite close to that place he saw that Tillu @ Subhash was doing the bad work with his Chachi while Naresh was holding both hands of her Chachi with his one hand and gagging her mouth with an Angocha in his other hand. He further stated that on seeing him, the appellants left her Chachi and then threatened his that if they raised any alarm, they would be killed. Thus, according to him, it was Tillu alias Subhash who had raped Anita while PW 4 Anita has stated that Naresh had raped her last of all while Subhash alias Tillu had raped her first of all. Thus, according to him, it was Tillu alias Subhash who had raped Anita while PW 4 Anita has stated that Naresh had raped her last of all while Subhash alias Tillu had raped her first of all. This discrepancy suggests that PW5 Sunil was not present there and the occurrence had not taken place as alleged. 16. It is stated by PW4 Anita that she did not know the names of the appellants and the same were told by her Jethani Bimla. One wonders as to how Bimla had told the names of the appellants while she was not present at the spot. Bimla has not been examined to prove that she had told the names of the appellants to PW4 Anita. Admittedly, Anita did not know the appellants earlier. Therefore, the identity of the appellants is doubtful. 17. Statement of PW6 ASI Sampat Ram is highly discrepant. He stated that Anita and her husband reached the police station at about 11.00 A.M. but the FIR was recorded on her statement at 4.25 P.M. and during that period, they had been consulting each other. It is not clear as to why ASI Sampat Ram waited for about 4/5 hours to record the statement of Anita which only shows that Anita was not sure about the identity of the appellants and this time was utilised for fixing the identity of the appellants. 18. According to the report of Forensic Science Laboratory Ex. PD human semen was detected on the Petticoat worn by Anita as well as in the vaginal swabs and further on the underwears worn by the appellants. There is another report x. PD/1 of the Assistant Chemical Examiner but he had not been able to determine the group of semen on the Petticoat as well as on the underwears worn by the appellants. In the absence of matching of the semen found on the Petticoat as well as on the underwears of the appellants, it cannot be said that sexual intercourse had taken place with Anita a married woman. 19. PW6 ASI Sampat Ram stated that Mitter Pal Singh Sarpanch was joined in the investigation and they stayed at his house in village Bapora in the night and returned on the next day. However, DW1 Mitter Pal Singh Sarpanch has categorically stated that ASI Sampat Ram never came to him nor he stayed at his house on 2.11.1989. 19. PW6 ASI Sampat Ram stated that Mitter Pal Singh Sarpanch was joined in the investigation and they stayed at his house in village Bapora in the night and returned on the next day. However, DW1 Mitter Pal Singh Sarpanch has categorically stated that ASI Sampat Ram never came to him nor he stayed at his house on 2.11.1989. He further stated that he did not join in the investigation conducted by ASI Sampat Ram. This again suggests that the entire investigation was done in a perfunctory manner. If Anita had been raped as alleged by two persons while cutting grass, then some injury must have taken place upon her person but the fact that she did not receive even a scratch, again suggest that she was not raped or the occurrence had not taken place as alleged. Thus, in view of the discussion above, I hold that the prosecution has not been able to bring home guilt to the appellants beyond reasonable shadow of doubt. Consequently, the appeal is accepted and the appellants are acquitted of the charge framed against them. Appeal allowed.