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2009 DIGILAW 485 (PNJ)

Kishori Lal v. State of Haryana

2009-03-16

HARBANS LAL

body2009
JUDGMENT Harbans Lal, J. - This appeal is directed against judgment dated 9.3.1998/order of sentence dated 10.3.1998 passed by the Court of learned Additional Sessions Judge, Karnal, whereby he convicted and sentenced the accused Kishori Lal to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- and in default of payment of the same to undergo further rigorous imprisonment for two months under Section 376 of Indian Penal Code. 2. Succinctly put facts of the prosecution case are that the prosecutrix X (name of the victim is not being indicated to prevent her social victimisation in view of Premia alias Preen Parkash v. State of Rajasthan, 2008(5) RAJ 490 (SC), is married to Kashmiri Lal. On 6.10.1996 at about 8:30/8:45 P.M., when Kashmiri Lal returned from his day long toil, he asked his wife to prepare tea for him. The tea leaves and sugar etc., being not available in the house, she went to the shop of Shiv Dyal. She brought the same. Again she went to fetch milk. It had grown dark by such time. She proceeded through periphery. The accused, who was standing under the Neem tree enquired as to where she was going. On her disclosure that she was moving to bring milk, he caught hold of her from her hand and dragged her towards Kup (rick) and gagged her mouth by stuffing her scarf, which drowned her shrieks into silence. He broke open the string of her salwar and committed rape on her. On returning home, she disclosed this occurrence to her husband. By that time, it was too late. On the next morning, when they were on their way to the police station, they came across ASI Azad Singh, who recorded her statement on its basis,,the formal FIR was registered. This ASI got her medico legally examined, visited the place of occurrence, prepared the rough site plan showing the place of occurrence, recorded statements of witnesses. The accused was produced by Sukhwinder Singh Ex-Sarpanch on 8.10.1996. He was also got medico legally examined. After completion of investigation, the charge-sheet was laid in the Court of Illaqa Magistrate, who committed the case to the Court of Sessions for trial of the accused. 3. On commitment, the accused was charged under Section 376 of Indian Penal Code to which he did not plead guilty and claimed trial. He was also got medico legally examined. After completion of investigation, the charge-sheet was laid in the Court of Illaqa Magistrate, who committed the case to the Court of Sessions for trial of the accused. 3. On commitment, the accused was charged under Section 376 of Indian Penal Code to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution has examined PW 1 prosecutrix, PW2 Kashmiri Lal, PW3 Dr. Bimla Gore, PW4 Dr. Lajya Ram, PW5 Constable Prem Kumar, PW6 Shiv Dyal, PW7 Head Constable Parkash Chand, PW8 Constable Mukand Lal, PW9 ASI Dharam Pal, PW 10 ASI Azad Singh and closed its evidence. 4. When examined under Section 313 of Criminal Procedure Code, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He has put forth that "I have a dispute with the prosecutrix on a common wall. The Prosecutrix demanded money, which I refused and on that account, I have been falsely involved by the prosecutrix." In his defence, he examined, Sukhwinder Singh DW1, Dula Ram DW2 and closed his defence evidence. 5. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction/sentence, he has preferred this appeal. 6. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 7. Learned counsel for the appellant attacked the prosecution edifice by urging with great eloquence that as is borne out from the record, there was a dispute between the appellant and the prosecutrix over a common wall and in this respect, the prosecutrix was demanding money from him and on his refusal to do so, he has been roped in falsely in this case. Furthermore, she has specifically denied his involvement in the crime. She has not supported the prosecution version. She being 28 years of age and a mother of three children, in all probabilities could be a consenting party. It is in her evidence that she was dragged towards the koop and while she was being raped she offered resistance and suffered bruises on her knees. She has not supported the prosecution version. She being 28 years of age and a mother of three children, in all probabilities could be a consenting party. It is in her evidence that she was dragged towards the koop and while she was being raped she offered resistance and suffered bruises on her knees. She was also given teeth bites on her left cheek, but as per the medical evidence, no such injury was found on her body. As per the FSL report, the alleged semen present on the clothes of the prosecutrix has not been connected with the semen of the appellant. Moreover, the presence of semen on the underwear has not been tested in the laboratory. There is no other statement of any eye witness to the alleged incidence. The place of alleged occurrence is only at a distance of 100 feet away from the house of the prosecutrix. It is highly improbable and unbelievable that at the time of alleged incident, i.e. 8:30 P.M., no other person in the village would have witnessed the same. So much so, the milk can (dolu) has also not been recovered. There is inexplicable delay of as many as 12 hours in reporting matter to the police. 8. To controvert these submissions, Mr. Amit Kaushik, Assistant Advocate General, Haryana argued that a careful delving into the prosecutrix evidence would reveal that she has not resiled from statement in its entirety and she has supported the prosecution version on material aspects of the case. That being so, no fault can be found with the findings returned by the learned trial Court. 9. On giving a deep and thoughtful consideration to the rival contentions, the view I am disposed to take is that the contentions raised on behalf of the appellant outweigh the State counsels submissions for the discussion to follow hereunder :- 10. The prosecutrix has testified that "In October, 1996, somebody committed rape on me. The accused present in Court did not commit rape on me. It was dark in the night and I could not identify the person. I did not state to the police that accused committed rape on me." Of course, when she was cross- examined by the learned Public Prosecutor, she deposed that the statement Ex.PA bears my signatures but in the next vein she deposed that I was not read over the contents of Ex.PA. I did not state to the police that accused committed rape on me." Of course, when she was cross- examined by the learned Public Prosecutor, she deposed that the statement Ex.PA bears my signatures but in the next vein she deposed that I was not read over the contents of Ex.PA. I am illiterate and thus cannot read." It is in her further such cross-examination that "Although I stated to the police that I was going to purchase the milk and it was dark, but I did not state that accused person in Court was standing under a Neem tree and stopped me and enquired as to where I was going. I gave name of the accused to the police in my statement Ex.PA by mistake." In her next breath, she stated that "I had correctly recorded to the police that accused caught hold of my hand and dragged me towards Batoras and koop. He gagged my mouth with my shawl. Thus, I could not shout. He then broke string of my Salwar and committed rape on me. It is also correct that I disclosed the incident to my husband after coming to house. I stated to my husband that Kishori Lal accused had committed rape on me. The accused committed rape on me against my will." When she was again cross-examined by the learned defence counsel, she made a volt-face by stating that "I could not identify the person who committed the rape on me. When the accused gave me call "Chachi" where I was going, I could not identify his voice. Since I could not identify the person, I named the accused to my husband. Police recorded my statement in the police station. Accused seems to be the same person who committed rape on me but I am not interested in pursuing the case." It is quite clear and unambiguous that from moment to moment she went on changing the stands. Palpably, her evidence is too fragile and frail to believe. She floundered and staggered here and there. She being a married woman having three children could be expected to become a consenting party. She appears to be floating witness. It is in her evidence that "while resisting I suffered minor bruises on my knees and also suffered teeth bite on my left cheek". Whereas Dr. Bimla Grore PW3 who examined the prosecutrix medically has belied this evidence. She being a married woman having three children could be expected to become a consenting party. She appears to be floating witness. It is in her evidence that "while resisting I suffered minor bruises on my knees and also suffered teeth bite on my left cheek". Whereas Dr. Bimla Grore PW3 who examined the prosecutrix medically has belied this evidence. There is unexplained inordinate delay of as many as 12 hours in reporting incidence to the police. As per Ex.PC, FSL report, human semen was detected on Salwar, Nara (string) and swab. The occurrence took place on 6.10.1996. As revealed by this report, the analysis in the laboratory was carried out on 4.4.1997 which is obviously after about six months qua which no explanation worth the name has been given. As per this report, the parcels containing the aforesaid clothes were forwarded to the FSL on 15.10.1996, obviously, after 9 days. There is nothing on the record to show that during this long interregnum, the spermatozoas over the said clothes would have survived for analysis. It is in the evidence of Dr. Lajya Ram PW4 that on 8.10.1996, he medico legally examined Kishori Lal (referring to the accused) and that he handed over to the police the underwear of the accused. It is in his cross-examination that "When inter-course is committed with force, a person may suffer some abrasion or contusions but no such contusion or abrasion was observed on this patient during medical examination." The record is quite barren to show that the underwear of the accused was also sent to the Forensic Science Laboratory for comparison of smegma present, if any, over it with the smegma available on the stated clothes of the prosecutrix. It is in the cross-examination of Kashmiri Lal PW2 husband of the prosecutrix that "the house of accused adjoins our house and that the accused is related to me in relationship as nephew and is not my real nephew. The police had recorded statement, but I do not know what was recorded by the police." He being not an eye witness, his testimony is of no assistance, when looked in the background of the demeanour of the prosecutrix in the Court. It is in the statement of Sukhwinder Singh DW1 that "I know the accused as he belongs to my village. He did not make extra judicial confession to me". It is in the statement of Sukhwinder Singh DW1 that "I know the accused as he belongs to my village. He did not make extra judicial confession to me". It is inferable from this evidence that the prosecution had made an attempt to project that the accused had made extra judicial confession before this witness qua the commission of offence. This endeavour has obviously been foiled. It is in his further evidence that "there have been disputes regarding wall between accused and the prosecutrix and despite Panchayat, the matter could not be settled." It is in his cross-examination that "On oral request I had gone to settle the matter as Sarpanch, however, no proceedings were recorded in the panchayat register. I did not produce the accused before ASI Azad Singh on 7.10.2006 nor I told the said police officer that the accused had made extra-judicial confession before me, and offering him to be produced before police." It is also in the testimony of Dula Ram DW2 that "Kishori Lal has raised a wall on Shamlat land. There was dispute on the said land between Kashmiri Lal and accused. Even a panchayat was convened regarding dispute." It is apt to be borne in mind that the accused has also come up with the plea that he had a dispute with the prosecutrix on a common wall and she demanded money which he refused to give and on that account, he has been falsely involved by the prosecutrix. On assessing the defence evidence, it transpires that there was some dispute regarding wall between the accused and the prosecutrix and the latter was demanding money to settle the same. In re : Rajoo and others v. State of M.P., 2009(1) RAJ 49, the Apex Court has held that "the statement of prosecutrix should be evaluated at par with that of injured witness who will not tell a lie, but it can never be presumed that her statement is a gospel truth. Rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication. The truth and falsehood are so inextricably inter-twined that it is impossible to discern where one ends and the other begins." 11. The accused must also be protected against the possibility of false implication. The truth and falsehood are so inextricably inter-twined that it is impossible to discern where one ends and the other begins." 11. Reverting back to the present one, it emanates from the statement of the prosecutrix that it is so inextricably mixed that it is impossible to discern where her one version ends and the other begins. At one time, she said that the accused is not the person who had committed rape on me and at the other time, she went on to say that he seems to be the person who had committed rape on me. Thus, she went on tilting some times in favour of the prosecution and at other times in favour of the accused. So, axiomatically, on her given statement reasonably two views are possible. In view of Main Pal and another v. State of Haryana and others, 2004(2) Apex Criminal 613, when two views are possible on the adduced evidence, the one which favours the accused ought to be adopted. In the instant case, it emerges out that either is a case of consensual sexual intercourse or the accused- appellant has been falsely implicated. Thus, both the views tilt in favour of the accused appellant. 12. In the ultimate analysis, it boils down that the prosecution has not been able to bring home guilt against the accused-appellant beyond a shadow of reasonable doubt. Sequelly, this appeal is accepted setting aside the impugned judgment/order of sentence. The accused-appellant is hereby acquitted of the charged offence. Appeal allowed.