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2004 DIGILAW 962 (PNJ)

Mohan Singh v. State of Haryana

2004-08-25

HARJIT SINGH BEDI

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JUDGMENT H.S. Bedi, J. (Oral) - This appeal out of the following facts :- Narinder Kaur, the prosecutrix, was married to Gurbachan Singh about 20/22 years prior to the date of the incident and out of that marriage, three sons, Prem Singh then aged 17 years, Balwinder Singh 15 years and Sukhwant Singh 13 years had been born. The prosecutrix had, however, been ill for about 5-6 years and despite efforts to get her treated for her ailment, no improvement had taken place. The accused, Mohan Singh, who was a Tantrik was accordingly approached for help. On 28.7.1989, Mohan Singh came to the house of the prosecutrix and told her that as a part of the treatment, he would perform a Havan which would continue for three days. The prosecutrix was also directed to provide the Havan Samgri as per the demands made by him. The Havan was accordingly started and after the first day, Mohan Singh left for his home and returned the next morning to continue with the proceedings. The accused returned again on the third day and performed the Havan in the presence of Gurbachan Singh, Narinder Kaurs husband. The Havan continued till about 3/4.00 P.M. after which certain articles were handed over by Mohan Singh to Gurbachan Singh and he was told to throw them at a distance of 20 killas from the house. As directed, Gurbachan Singh left the room after shutting the door. The accused thereafter caught hold of the prosecutrix and committed rape on her. On her alarm Mangal Kaur, who was living in an adjoining room, came rushing to the spot. Mohan Singh thereupon left the prosecutrix, but before doing so tied certain strings on her abdomen and arm, with the result she allegedly became unconscious and remained so for 5/6 days. On Gurbachan Singhs return home he found that his wife was unconscious, on which he went to village Makhu Majra to call Mohan Singh, but he refused to help out. Narinder Kaur regained consciousness on 4.8.1989 and at that stage disclosed as to what had happened. A report was thereafter lodged on 8.8.1989 at 3.30 p.m. The accused was arrested and on the completion of the investigation, 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. A report was thereafter lodged on 8.8.1989 at 3.30 p.m. The accused was arrested and on the completion of the investigation, 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. To substantiate its allegations, the prosecution examined PW-2 Lady Dr. Mithlesh Rano, who had medically examined the prosecutrix on 8.8.1989 and opined that rape could have been committed on her; PW-3 Narinder Kaur, the prosecutrix; PW-5 Gurbachan Singh, her husband; and PW-6 ASI Banarsi Singh, the Investigating Officer. Mangal Kaur was, however, given up as won over. 3. The prosecution case was then put to the accused and his statement recorded under Section 313 of the Code of Criminal Procedure, in which he denied the allegations levelled against him and pleaded false implication. He also gave a counter story to the effect that Pappu, the son of the prosecutrix, had taken his cycle and as he had not returned it, he had gone to the house of the prosecutrix and on opening the door of her room, he had seen her having sexual intercourse with one Joga Singh, on which she had panicked and had got him implicated in a false case. In defence, the accused examined Ranbir Singh Sarpanch of village Makhu Majra, who stated that the accused was a cultivator by profession and was not a Tantrik. 4. The trial Court, on a consideration of the evidence, held that there was no reason to disbelieve the evidence of the prosecutrix, which had been fully corroborated by her husband. The Court observed that the delay in the lodging of the FIR stood explained as the prosecutrix had remained unconscious upto 4.8.1989. It was also observed that the defence story projected by the accused clearly showed that he had admittedly visited the house of the prosecutrix and in that eventuality, this again was a corroborative circumstance. The trial Court accordingly convicted the accused under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months. Hence this appeal. 6. It is true that in cases of rape, the general tendency (and rightly so) is to believe a prosecutrix. 1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months. Hence this appeal. 6. It is true that in cases of rape, the general tendency (and rightly so) is to believe a prosecutrix. At the same time, however, it could not be denied that rape has grave moral repercussions for the accused as well. In this background, it has been argued by Mr. K.C. Rajput, the learned counsel for the appellant, that there was a delay of eleven days in the lodging of the FIR and this delay had not been properly explained. He has also pleaded that Gurbachan Singh (PW-5), the husband of the prosecutrix, had returned home soon after the rape had been committed and had found Mangal Kaur present at the spot, but as per his statement, Mangal Kaur had not told him about the rape having been committed. It has also been pleaded that in these circumstances even if semen had been found on the swabs taken by the prosecution, it would not conclusively connect the accused with the commission of the crime as the prosecutrix was a married woman and could have had sexual intercourse with her husband. The learned State counsel has, however, pointed out that the prosecutrix was to be treated in the capacity of an injured witness and that by itself was a circumstance which would go to show the veracity of her story. It has also been pleaded that the delay in the lodging of the FIR had been explained, as soon after the rape had been committed, Narinder Kaur had been rendered unconscious and had remained in that condition upto 4.8.1989 and could not, therefore, lodge a report. 7. I have considered the arguments advanced by the learned counsel for the parties and have gone through the evidence in the light of the background noted above. 8. It is true that the prosecutrix has often to be treated as an injured witness, but to my mind there are two circumstances in this case, which clearly cast a doubt on the prosecution story. The first being the delay in the lodging of the FIR. Admittedly the incident had happened on 29.7.1989, whereas the FIR had been lodged on 8.8.1989. The first being the delay in the lodging of the FIR. Admittedly the incident had happened on 29.7.1989, whereas the FIR had been lodged on 8.8.1989. The prosecution would have it that after the rape had been committed, the prosecutrix had been rendered unconscious as some thread had been tied to her abdomen and arm and that she had regained conscious on 4.8.1989. It is clear from the evidence that no medicine of any kind had administered to the prosecutrix and it is, therefore, difficult to believe that merely because two threads had been put on her body, she would have been rendered unconscious. It is to be noted that the malady that the prosecutrix was suffering from, was not a mental problem, but a pain in the stomach; secondly, even assuming that the prosecutrix had been unconscious till 4.8.1989, there is no explanation as to why the FIR had been lodged four days thereafter, i.e. on 8.8.1989. To my mind, there is absolutely no justification for this delay. 9. There is another significant aspect which in fact flows from the conduct of Mangal Kaur. She was an immediate neighbour of the prosecutrix, living in the adjoining room and she had come on the scene as the rape was actually being committed and it was she, who had put the salwar on the person of the prosecutrix after she had been raped and had allegedly become unconscious. It has, however, come in Gurbachan Singhs statement that Mangal Kaur had not told him that rape had been committed. This story itself is rather unusual. Mangal Kaur, who could have been a good witness was, however, not examined and was given up as won over. 10. The trial Court has held that the swabs which had been taken were smeared with semen, but there is no evidence to connect the accused with the semen. It bears reiteration that Narinder Kaur was a married woman and habitual to sexual intercourse. The possibility that she had sexual intercourse with her husband during the period in question cannot, therefore be ruled out. In this view of the matter, the appeal is allowed. The accused is acquitted of the charge levelled against him. Appeal allowed.