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2005 DIGILAW 1141 (PNJ)

Sombir v. State of Haryana

2005-10-28

M.M.AGGARWAL

body2005
JUDGMENT M.M. Aggarwal, J. - This is an appeal against the judgment dated 27.10.1993 passed by the Additional Sessions Judge, Bhiwani whereby the appellant Sombir was convicted and sentenced to undergo RI for seven years and to pay of Rs. 500/-, in default of payment of fine, he was to undergo RI for a period of six months for the offence under Section 376 Indian Penal Code. 2. Prosecution case against the appellant is that on 21.6.1991, Sunita aged about 15 years had gone to Bani (small forest), adjoining her village Mandoli, for easing herself. When she was sitting under a tree, the accused Sombir appeared and gagged her mouth with Lugri (a cloth used by ladies for covering their head) and made her fall on the ground and committed sexual inter-course forcibly with her against her will and consent. She tried to get herself free from the grip of the accused and raised cries and even gave a bite on the hands of the accused. Then Vidya Devi, mother of Sunita prosecutrix and Jiwani, her Tai came on the scene and after seeing these ladies, accused ran away. Prosecutrix Sunita was brought to the house. A search of the accused was made but in vain. Then the matter was reported to the police. Case was registered. Prosecutrix was sent for medical examination and after investigation, accused-appellant was sent for trial. Case was found to be proved after trial. Accused-appellant was convicted and sentenced as aforesaid. 3. Counsel for the appellant had argued that as per allegations, occurrence took place on 21.6.1991 at about 10 A.M. but the matter was reported to the police on 9.15 P.M. and that there was delay in lodging the FIR. It was also argued from the statement of PW-10 Dr. Sadhna Verma that there was no injury. No blood was found and FSL report about swab taken from vagina was also negative. 4. From the statement of PW Sunita prosecutrix, who appeared as PW-8, it was pointed out that as per her statement, she had no sexual inter-course earlier to the date of occurrence whereas on medical examination Dr. Sadhna PW-10 had found the vagina, admitted two fingers easily, hymen was absent. 5. It was pointed out by counsel for the appellant that Sunita, who had appeared as PW-8, stated that she cried only after the rape was already there. Sadhna PW-10 had found the vagina, admitted two fingers easily, hymen was absent. 5. It was pointed out by counsel for the appellant that Sunita, who had appeared as PW-8, stated that she cried only after the rape was already there. If that was so, then the statement of her mother Vidya Devi cannot be relied that she had seen the accused committing rape. 6. As per school record produced by PW-4, Shamsher Singh, the date of birth mentioned is 10.10.1977. Dr. Ram Chandra, who is a Dental Surgeon had opined the age after x-rays to be 12 years to 16 years. Sunita had stated that Jasbir is younger to her by six years and that Jasbir was aged about 11. If that is believed then she would be 17 years of age. I find that it is not a case of consent and therefore age is not relevant. From the statement of PW-9, Vidya Devi, it would come out that when she along with her Jethani Jiwani had gone to collect Dung-cakes then had heard the cries of Sunita and they ran towards that place and when they reached near the Jaal tree where pit was there, they found the accused lying on Sunita and committing rape and then accused had run away. She had stated that Sunita was brought to the house and then she had sent her son Jasbir to the field to call her husband, who came at about 4.00 P.M. Then a search of Sombir accused was made. He was not found and then the matter was reported. Sunita prosecutrix in her statement as PW-8 stated that when she had gone to answer the call of nature then Sombir accused over- powered her and then she cried. The accused had gagged her mouth with Odhni and even her bangles were broken. She had given biting on the hand of the accused. This accused after his arrest was examined by PW-1 Dr. Ishwar Singh on 26.6.1991 and following injuries were found on his person : "Two abrasions on the anterior aspect upper 1/3rd of right forearm. Size was 2.5 c.m. x 0.5 c.m. and 3 c.m. Scar formation was present which was brown in colour". 7. This accused after his arrest was examined by PW-1 Dr. Ishwar Singh on 26.6.1991 and following injuries were found on his person : "Two abrasions on the anterior aspect upper 1/3rd of right forearm. Size was 2.5 c.m. x 0.5 c.m. and 3 c.m. Scar formation was present which was brown in colour". 7. The contention of counsel for the accused-appellant had been that the appellant had gone to attend the marriage and he was not in the village and there were statements of DW-1 and DW-2 in this connection. 8. This contention does not inspire confidence. No girl of 16-17 years of age will involve herself and make false allegations of rape. In this case, there is corroborating statement of her mother Vidya Devi and also medical evidence. It is not necessary that there should be injury on the person of the prosecutrix. Even if vagina admitted two fingers, it cannot be said that she was already having inter-course with others or it was a case of consent. There is no extraordinary delay in reporting the matter to the police. 9. Under these circumstances, I hold that the prosecution case against the accused-appellant is duly proved. There is no merit in the appeal and the same is accordingly dismissed. Bail bonds of the accused-appellant shall stand cancelled. He shall be taken to custody to undergo the remaining sentence. Appeal dismissed.