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2008 DIGILAW 1571 (PNJ)

Raja alias Dharamraj v. State of Haryana

2008-09-12

S.D.ANAND

body2008
JUDGMENT S. D. Anand, J 1. The appellant was convicted by the learned Trial Magistrate for offences under Sections 376 and 450 IPC. For the former offence, he was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine fo Rs.10,000/-; while, for the latter offence, he was directed to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.200/-. 2. The prosecution presentation, which was upheld at the trial, may be indicated as under:- 3. The prosecutrix, a married lady, retired for the night on 9.4.1997 at 9.00 P.M. Her husband was away “to witness a fair of a cycle player”. Her parents-in-law, a brother-in-law (younger brother of her husband) and two sisters-in-law were asleep on the ground floor. The appellant entered her bed room at about 10.-10.30 P.M., stripped her and deflowered her against her wishes. Initially, her mouth was cupped by the appellant but the raula raised by her thereafter (onher being able to get her mouth released) attracted her brother-in-law Mukesh and sister-in-law Maya to the spot. The appellant, then, fled the spot. In the course of the resistance, her right hand bangles were broken and she felt pain in her right hand. On the return of her husband, she narrated the occurrence to him. For want of conveyance, during the night, the offence was notified to the police the following day. 4. The ocular version of the prosecution plea was supported by the testimony of the prosecutrix-PW7 and her brother-in-law PW-8 Mukesh. 5. PW-1 Sumit Kumar had prepared scaled site plan Ex. PA (of the spot) on the pointing of prosecutrix. 6. PW-2 HC Satbir Singh and PW-3 Constable Balwan Singh tendered their formal affidavits Ex. PB and Ex. PC respectively into evidence. 7. PW-4 Dr. N.K.Mundra had medico legally examined the appellant on 15.4.1997 and had found one healing wound, four abrasions, one multiple bruise and one bruise on his person. The Medical Officer found that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. 8. PW-5 Dr. Jaimala had medico legally examined the prosecutrix on 10.4.1997. She observed that there was no mark of injury on external private part. There also was no bleeding, as per vaginal examination. The salwar (Ex. The Medical Officer found that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. 8. PW-5 Dr. Jaimala had medico legally examined the prosecutrix on 10.4.1997. She observed that there was no mark of injury on external private part. There also was no bleeding, as per vaginal examination. The salwar (Ex. P2), worn by the prosecutrix at the time of medical examination, was taken off her person and was made into a sealed parcel. Vaginal swab Ex. P3 and specimen pubic hair Ex. P4 were also obtained from the person of the prosecutrix, were made into sealed parcels and were forwarded to the FSL for examination thereof. 9. PW-6 SI Mahender Singh had recorded formal FIR Ex. PG/1, on receipt of ruqqa Ex.PG, and had also made his endorsement Ex. PG/2 (on the ruqqa). 10. PW-9 Devinder is husband of the prosecutrix. 11. PW-10 SHO Shiv Charan had filed the report under Section 173 Cr.P.C. in this case. 12. PW-11 Constable Attar Singh testified that the appellant was got medico legally examined on 15.4.1997 and that his underwear Ex. P1 was taken into possession by the Investigating Officer, vide seizure memo Ex. P1. 13. PW-12 Constable Harnarain had attested memo Ex. PJ, vide which the packet containing Salwar, swab and pubic hair of the prosecutrix were taken into possession on 10.4.1997. 14. PW-13 ASI Hari Singh had investigated this case. 15. Ex. PM is the FSL report. 16. The appellant pleaded innocence and averred that “Yes, I have been impliated falsely in this case by the police at the behalf of the complainant. There were enimical relations between the family of complainant and the accused as a criminal case was lodged against the father of the accused by the complainant's husband's father's sister (Bua) long back under Section 354 IPC. But the father of the accused was acquitted in that case. To take revange of the old enimity the present allegations are levelled against me. I have been falsely implicated in this case. I am innocent.” 17. DW-1 Karan Singh Hooda, DW-2 Mauji Ram and DW-3 Nafe Singh were examined in defence evidence. 18. DW-1 Karan Singh Hooda had prepared site plan Ex. D1 indicating the locational placement of the house of the prosecutrix. 19. DW-2 Mauji Ram and DW-3 Nafe Singh also testified to the location of the house of the prosecutrix. 20. DW-1 Karan Singh Hooda, DW-2 Mauji Ram and DW-3 Nafe Singh were examined in defence evidence. 18. DW-1 Karan Singh Hooda had prepared site plan Ex. D1 indicating the locational placement of the house of the prosecutrix. 19. DW-2 Mauji Ram and DW-3 Nafe Singh also testified to the location of the house of the prosecutrix. 20. Learned counsel for the appellant argues that the impugned episode was nothing but a consensual affair which does not give rise to any offence because the prosecutrix, on her own showing, was a major lady at the time of commission of impugned offence. 21. The plea deserves acceptance in view of the fact that evidence available on the file is supportive of an inference that the prosecutrix was major at the relevant point of time and she was a consenting party to the act. It may be noticed, in the context, that the prosecutrix claimed to have been asleep, with her bed room door open and her bed room light burning. She was not putting up in an independent house. Her in-laws (her parents-in-law, one brother-in-law and two sisters-in-law) were also residing in that very house and were asleep on the ground floor. It would appear very unnatural that the appellant would have got the opportunity to satisfy his lust unnoticed, if prosecutrix was not consenting party to it. The locational placement of the house of the prosecutrix and the houses in the vicinity would also be supportive of that inference. In this context, the following statement made by PW-8 shall require particular notice:- “Except for the stair case of our house there is no other passage to go to the first floor from inside our house. ...... From the main street, a person going up to stair case of our house can be seen.” 22. Even otherwise, there is a noticeable variation in the inter-se statements of PW-7 prosecutrix and her brother-in-law PW-8 Mukesh. As per her testimony, the appellant entered her bed room and raped here after cupping her mouth. It was thereafter only that she got her mouth released and shouted for help. It was, then, that her brother-in-law came over there. She does not, thus, indicate that her brother-in-law came over when the appellant was in the act of raping. As per her testimony, the appellant entered her bed room and raped here after cupping her mouth. It was thereafter only that she got her mouth released and shouted for help. It was, then, that her brother-in-law came over there. She does not, thus, indicate that her brother-in-law came over when the appellant was in the act of raping. However, as against it, PW-8 Mukesh would like the Court to believe that he saw the appellant forcibly raping the prosecutrix when he reached there. 23. The prosecution has also not been able to explain the delay in lodging of the FIR with the police. The impugned occurrence had taken place at about 10.30 P.M. on 9.4.1997. The FIR in the context was lodged on 10.4.1997 at 1.00 P.M. The distance between the village of the prosecutrix and the police Station is about 18 Kilometers which cannot said to be much when it comes to analysing the attitude of the complainant in having delayed the notification of the offence to the police. 24. The aspect of delay has to be appreciated in the light of the fact that the offence was not brought to the notice of any village functionary or any other village mate during the night. In the context, the prosecutrix informed that “we did not call Sarpanch, Lambardar or any other person of our village. We did not tell the occurrence to any other person at right.” Her husband averred in the context that “We did not call any Sarpanc or Lamberdar of the village during the night.” At the same time, he conceded that “People from the neighbourhood gathered and seen us........ In the morning the Sarpanc and members panchyat had come after hearing about the occurrence.” The present is, thus, not a case where the impugned occurrence had not come to the notice of neighbours during the night. Even if the testimony of the husband of the prosecutrix is to be believed, the commission of the offence did come to the notice of the Sarpanch etc. in the morning. It was, thus, incumbent on the part of the proseuction to have examined someone from the neighbourhood or the Sarpanch etc. to own up the attribution. The proseuction prescence, however, is deficient on that point. 25. in the morning. It was, thus, incumbent on the part of the proseuction to have examined someone from the neighbourhood or the Sarpanch etc. to own up the attribution. The proseuction prescence, however, is deficient on that point. 25. Devinder P.W.9 (husband of the prosecutrix) conceded that “Smt. Phula my paternal aunt had got a case registered againt father of the accused for teasing her.” He denied a suggestion that the case indicated above ended in acquittal. However, the prosecutrix conceded, as correct, a suggestion that “father of the accused acquitted in that case.” In spite of that, both (the prosecutrix and her husband) want the Court to believe that there was no enmity between their family and the family of the appellant. It is obvious enough in the circumstances of the cse that they were making an abortive attempt to wriggle out of the allegation of having falsely implicated the appellant in this case. 26. In the light of the foregoing discussion, it is apparent that the prosecution had not been able to prove the charge against the appellant. The appellant is entitled to benefit of doubt and is ordered to be acquitted of the charge. 27. The appeal shall stand allowed accordingly. Appeal allowed.