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2007 DIGILAW 1132 (PNJ)

Idrish v. State Of Haryana

2007-05-15

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. This appeal is directed against judgment dated 27.3.1999 and order dated 30.3.1999 of the Additional Sessions Judge, Gurgaon (hereinafter described as `the trial Court) vide which the appellant has been convicted for an offence punishable under Section 376 of the I.P.C. and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- and in default of payment of fine, to further undergo imprisonment for one year. 2. One Smt. Jarina wife of Hanif is the complainant (Referred to hereinafter as `the prosecutrix), who lodged the F.I.R. with the allegations that on 30.12.1995 at about 3.00 P.M. when she was cutting the grass in her field, Idrish son of Yashin alias Aasin (appellant herein) was summoned to help her in order to lift the grass and taking advantage of the situation, he felled her down to the ground and committed sexual inter-course upon her without her consent. One Dina son of Hussain, who was allegedly present at a distance of about two acres, is supposed to be an eye witness for whose help she had cried out for, but he had not responded to her cries. 3. At the time of lodging of the F.I.R. on 31.12.1995, the prosecutrix was accompanied by her husband. 4. The police investigated the matter and prima facie, found the complicity of the appellant and accordingly, a challan pursuant to the provisions of Section 173 of the Cr.P.C. was presented against him. 5. The trial Court charge-sheeted the appellant for an offence punishable under Section 376 of the I.P.C. to which he pleaded not guilty and claimed trial. 6. During the course of trial, Dina, the alleged eye witness, who was stated to be in close proximity when the alleged offence was committed, was summoned pursuant to the provisions of Section 319 of the Cr.P.C. It is to be noticed here that he was acquitted of the charge by the trial Court vide the impugned judgment. 7. In order to prove its case, the prosecution examined as many as five witnesses including the prosecutrix and Dr.Vandana Narula, who had medically examined the former. The report of the Chemical Examiner was also proved on record as Ex.PG. 8. The appellant, in his statement recorded under Section 313 of the Cr.P.C., pleaded false implication and did not qualify his defence any further. 9. The report of the Chemical Examiner was also proved on record as Ex.PG. 8. The appellant, in his statement recorded under Section 313 of the Cr.P.C., pleaded false implication and did not qualify his defence any further. 9. The trial Court, on appraisal of the evidence before it, came to the conclusion that sexual act had been committed upon the prosecutrix against her consent and thereafter proceeded to convict the appellant for an offence punishable under Section 376 of the I.P.C. and sentenced him in the manner detailed in the first paragraph of this judgment. 10. Dis-satisfied with the aforesaid verdict of the trial Court, the appellant is in appeal. 11. It is contended by the learned counsel for the appellant that the prosecutrixs statement does not inspire any confidence as she is not only inconsistent about her age, but is also at variance while giving her marital status, apart from the contradictions which appeared in her narration of the version. This coupled with the medical testimony which does not establish any injuries on her person goes to show that even if the sexual act had taken place, it was by consent. In any eventuality, there is nothing on record to connect the appellant with the commission of offence as the only medical evidence on record is in the shape of the report of the Chemical Examiner which proves the presence of semen on the clothes worn by the prosecutrix and possibly the same could have been because of her marital status. 12. On the other hand, learned counsel for the State refuted the contentions raised by the learned counsel for the appellant and urged that there is ample evidence on record to show that the prosecutrix had been subjected to sexual inter-course against her consent and, therefore, the conviction and sentence awarded to the appellant by the trial Court are perfectly in order. 13. I have heard the learned counsel for the parties and have gone through the whole record carefully. 14. A perusal of the statement of the prosecutrix, who stepped into witness box as PW1, reveals that it is a bundle of contradictions. She has failed to state her age and marital status correctly despite the fact that she has studied upto 5th standard. 14. A perusal of the statement of the prosecutrix, who stepped into witness box as PW1, reveals that it is a bundle of contradictions. She has failed to state her age and marital status correctly despite the fact that she has studied upto 5th standard. She has also given a very implausible version while saying that although she was accompanied by her husband when she went to the police station to lodge the F.I.R., but she did not disclose the details of the incident to him and told him about the same only three days later. Her statement is incoherent, inconsistent, untrustworthy and uninspiring to say the least and, therefore, it deserves to be discarded. 15. This coupled with the medical testimony which reveals no injury on her person also casts a shadow of doubt on the version of the prosecution. 16. That apart, the occurrence is said to have taken place in an open field in the month of December at about 3.00 P.M. when a co-villager, namely, Dina, was allegedly present in his field at a distance of about two acres. At that point of the year, there is no thicket in the fields. The wheat crop, if exists, is too small and so is the sarson crop. As per the version of the prosecutrix, sarson crop was standing in the fields at the time of the alleged occurrence. In view of this, it can be said that the sarson crop would have not been more than the height of one feet. This would have apparently left the place of occurrence exposed to the eyes of public and if a co-villager was present in the vicinity, it would be seemingly improbable for a person to commit such an act in the open. 17. Besides, the Investigating Officer has failed to collect any evidence which could establish a struggle amongst the standing crop of sarson. The prosecutrix has stated that the struggle had left some broken bangles at the spot. Neither the spot was examined by the Investigating Officer to establish the flattening of the grass as a result of the struggle nor such pieces of bangles were collected from there. The prosecutrix has stated that the struggle had left some broken bangles at the spot. Neither the spot was examined by the Investigating Officer to establish the flattening of the grass as a result of the struggle nor such pieces of bangles were collected from there. In nut-shell, the evidence led by the prosecution is woefully short and this coupled with the unreliable testimony of the prosecutrix leaves this Court with no option but to acquit the appellant by giving him the benefit of doubt. 18. Consequently, this appeal is accepted, the impugned judgment and order passed by the trial Court are set aside and the appellant is acquitted of the charge framed against him.