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2005 DIGILAW 792 (PNJ)

Jatinder Singh @ Rinku v. State Of Haryana

2005-07-27

SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. Appellant Jatinder Singh alias Rinku, who was 18 years old at the time of the alleged occurrence and is in custody for the last about three years, has filed this appeal against the judgment of conviction and order of sentence dated 5.7.2002 passed by Additional Sessions Judge, Yamuna Nagar at Jagadhri, vide which he has been convicted and sentenced to undergo rigorous imprisonment for a period of seven years under Section 376 IPC and to pay a find of Rs. 1,000/-; to undergo rigorous imprisonment for six months under Section 342 IPC and to undergo rigorous imprisonment for one year under Section 452 IPC. All the sentences have been ordered to run concurrently. 2. In this case, prosecution against the appellant was launched on the basis of the statement, made by the prosecutrix Saroj Bala, on 22.11.1996. On her statement, FIR was registered against the appellant under Sections 342/452/376 IPC. In her statement, she had stated that she was married to Ram Singh who was serving in Military at Jammu. She was having two children and is a household lady. About two months prior to the date of occurrence, her husband went to Jammu after availing leave. She was residing in her in-laws house along with her unmarried brother-in-law Gurnam and father-in-law Satpal. She stated that on 22.11.1996, no body was at home as her father-in-law and brother-in-law had gone to Yamuna Nagar where they were serving. They used to leave early in the morning and come back after duty at 9.00 a.m. Her children were in Anganwari. At above 11.30 a.m., accused Rinku came to her house. On arrival, he asked her as to why she did not talk to him. When she told that she had nothing to do with him, then he quarreled with her. She further stated that she went to Rajo sister of the accused and called her. When she came, accused Rinku was not found there. When Rajo left the place and the prosecutrix was standing in the court-yard, Rinku abruptly came and took her in his grip. He lifted her bodily in his lap and took her to the verandah, from where he dragged her into the room of her house and bolted the door from inside, where he committed rape upon her. When Rajo left the place and the prosecutrix was standing in the court-yard, Rinku abruptly came and took her in his grip. He lifted her bodily in his lap and took her to the verandah, from where he dragged her into the room of her house and bolted the door from inside, where he committed rape upon her. The prosecutrix further stated that after committing the rape, Rinku unbolted the door and fled away. Then she raised hue and cry, but no person came to the spot. She disclosed the entire incident to her father-in-law Satpal and brother-in-law Gurnam. When she was going to the police station alongwith them, the police party met her and on her statement, the FIR was registered. 3. On the same day i.e. 22.11.1996, the prosecutrix was medico-legally examined by Dr. Sarita Gulati (PW-2). She stated that no mark of injury, except 5 cms. abrasion on right knee, was found on the body of the prosecutrix. At the time of examination, bleeding per vagina was present. The prosecutrix gave the history of menstruation which started at 5 a.m. On 22.11.1996, therefore, she was using a pad. Her salwar, kameej, pad, underwear, vaginal swab and public hair were taken into possession and were sent for chemical examination. In the FSL report, no semen was detected on her Salwar, shirt, vaginal swab and pubic hair. During the investigation, the police recorded statements of various persons including the prosecutrix, Bhulla Ram (PW-6), who is her grand father-in-law and one Sona Devi, her neighbourer. 4. In her statement recorded under Section 161 of the Code of Criminal Procedure (hereinafter referred as `the Code), Smt. Sona Devi has stated that on the day of the alleged occurrence, she was coming to her house at 11 a.m. from the fields and accused Rinku was sitting near the house of the prosecutrix. When she asked why he was sitting there, he replied that he is sitting in search of his hens. After some time, she heard the noise from the house of Satpal. When she came out, she saw that the accused was grappling with the prosecutrix and after seeing her, he went away. Thereafter, she again went in the field for bringing grass and when she came, then she was told that the accused has committed rape with the prosecutrix. 5. When she came out, she saw that the accused was grappling with the prosecutrix and after seeing her, he went away. Thereafter, she again went in the field for bringing grass and when she came, then she was told that the accused has committed rape with the prosecutrix. 5. In support of its case, the prosecution examined 12 witnesses, including Saroj Bala, the prosecutrix as PW-11, Satpal, her father-in-law as PW-9, Bhulla Ram, her grand father-in-law as PW-6 and Dr. Sarita Gulati as PW-2, who medico-legally examined the prosecutrix. The only independent witness, namely Sona Devi, who was also cited as a witness of the alleged occurrence, has not been examined by the prosecution on the plea that she was won over by the appellant. 6. In his statement under Section 313 of the Code, the appellant denied all the allegations of the prosecution and pleaded his false implication. However, he did not lead any evidence in defence. 7. Bhulla Ram (PW-6), grand father-in-law of the prosecutrix, did not support the prosecution case. He was declared hostile and was permitted to be cross- examined by the Public Prosecutor. In his cross-examination, he has stated that he did not see the accused running out of his house at the time of his return from the work. 8. On the basis of the material available on the record, the trial Court found the appellant to be guilty of charges and he was accordingly convicted and sentenced, as stated in the first paragraph of this judgment. 9. Counsel for the appellant submits that in this case, the appellant has been convicted by the trial Court solely on the basis of the statement of the prosecutrix, which has not been corroborated by other evidence. He submits that there are material contradictions in the statement of the prosecutrix and the entire prosecution version is false and concocted, which does not stand on its own legs. Counsel for the appellant contends that testimony of the prosecutrix in this case is not reliable and the possibility of consent in the present case cannot be ruled out. Therefore, conviction of the appellant on the basis of the statement of unreliable witness is not safe. Counsel submits that statement of the prosecutrix is not corroborated even by the medical evidence. 10. Therefore, conviction of the appellant on the basis of the statement of unreliable witness is not safe. Counsel submits that statement of the prosecutrix is not corroborated even by the medical evidence. 10. On the other hand, counsel for the respondent-State submits that the contradictions in the statement of the prosecutrix are minor in nature and her statement is corroborated by the medical evidence. He submits that the conviction of the appellant is liable to be upheld. 11. In this case, the prosecutrix in her statement before the Court while appearing as PW-11 has stated that at the time of the alleged occurrence, the accused dragged her inside the room and also gave beatings. In the cross- examination, she has stated that during the course of the incident, she received injuries on her elbow, knee, head and arm. The accused had given beating to her with chappal. The chappals were hurled on her face, waist and other parts of the body. He also gave a kick blow with legs. He also pressed her neck. This part of the statement of the prosecutrix is not supported by the medical evidence. During her medical examination, which was conducted on the same day by PW-2 Dr. Sarita Gulati, no injury, except a small abrasion, was found on her body. This is one aspect of the matter. 12. Secondly, in her statement before the police, on the basis of which FIR was registered, the prosecutrix alleged that on the day of the alleged occurrence, she was alone in the house, accused came and started quarreling with her on the pretext as to why she did not talk to her. Thereupon, she went to the house of the accused and called his sister Rajo, who came to her house, but the accused was not found there. Thereafter, sister of the accused went and thereafter, the accused suddenly appeared and took away the prosecutrix in his grip and lifted her bodily in his lap and took her to verandah, but in her statement before the Court, she has stated that when she was alone in the house, the accused came to her house. She further stated that finding her alone, the accused entered the house, dragged her inside the room, gave her beatings, torn her clothes and committed rape upon her. She further stated that finding her alone, the accused entered the house, dragged her inside the room, gave her beatings, torn her clothes and committed rape upon her. In the cross- examination, she has stated that after the rape, when she was going to meet her grand father-in-law, on the way, she met sister of the accused. This fact totally contradicts version of the prosecutrix and creates doubt about the truthfulness of her statement. 13. Thirdly, it has come in the statement of the prosecutrix that her house is not surrounded with four walls. It is her case that the accused grappled her outside the room, dragged her, gave beatings by chappal and she raised alarm, but no body came on the spot. This version of her is unbelievable because she herself has admitted that between front of her house, there is a thoroughfare and in the public street no body came forward despite her raising hue and cry. As per the police investigation, one Smt. Sona Devi had come at the time of the raising of hue and cry by the prosecutrix, but she has not been examined by the prosecution. She was the material witness. 14. Fourthly, it has been further stated by the prosecutrix that at the time of the alleged occurrence, the prosecutrix gave slaps and fist blows to the accused. she also gave a bite on his back and she made all efforts to save herself, but from the medical examination of the accused, no such injury was found on his body. 15. There is another contradiction in the statements of the prosecutrix and her father-in-law Satpal PW-6. The prosecutrix in her statement has stated that after the alleged incident, she went to her father-in-law in Waryam Singh Hospital and an old lady of the village accompanied her. She accompanied her upto bus stand of Bhoot Majra and thereafter she went alone on a bus which starts at 12 or 12.15 p.m. Her father-in-law met her after half an hour, from where she accompanied him on a cycle to the police station, when the police party met them in the way and her statement was recorded, whereas PW-9 Satpal, in his statement, has stated that after the incident, his daughter-in-law Saroj came to him at 3.30 p.m. at the office of Municipal Committee, Yamuna Nagar and told him that she had been raped by Rinku. She started crying before him. Then he went to the police station with Saroj and told the incident to the police. These two contradictory versions of the prosecutirix and her father-in-law create doubt regarding the correctness of the prosecution version. 16. It is also admitted position that the at the time of the alleged occurrence, the accused was about 18 years old and was unmarried. On the other hand, the prosecutrix was more than 24 years old having two children. Her husband was serving in Army and she was living with her father-in-law, brother-in-law and grand father-in-law. At the time of the alleged occurrence, she was alone in the house. Even her children were in Anganwari, though her father-in-law in his statement has stated that at that time, her children were in the house. As per the statement of the prosecutrix, her father-in-law and brother-in-law used to go to Yamuna Nagar in the morning for doing job and come in the evening. Her grand father-in-law was not present at the time of the alleged occurrence, but in his statement before the police, he has stated that when he came to his house, he saw the accused running from his house, though when he appeared as PW-6, he did not support the prosecution version. It has also come in the statement of the prosecutrix that the accused met her for the first time on the day of the alleged occurrence. If that was the position, then how the accused asked her as to why she did not talk to him. The statement of the prosecutrix that she was not known to the accused earlier is unbelievable. In these facts and circumstances, the possibility that the prosecutrix was knowing the accused earlier cannot be ruled out and it is possible that when somebody saw the accused and the prosecutrix in the verandah in some compromising position, then the prosecutrix raised hue and cry and gave a false version. Since statement of the prosecution does not inspire any confidence, therefore, conviction of the appellant on the basis of her statement is not safe, as the prosecution version appears to be doubtful. In view of the above, the appeal is allowed and the appellant is acquitted of the charges framed against him.