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2010 DIGILAW 1712 (PNJ)

Sultan Singh Alias Sultana v. State Of Haryana

2010-05-18

H.S.BHALLA

body2010
Judgment H.S.Bhalla, J. 1. The facts required to be noticed for the disposal of this appeal are that a case was registered against the present appellant under Sections 376 and 506 of the Indian Penal Code. He was convicted and sentenced vide judgment/order dated 23.1.1999/25.1.1999 as under : Under Section 376 Indian Penal Code RI for seven years and fine of Rs. 5000/- and in default of payment of fine, to further undergo RI for one year. Under Section 506 Indian Penal Code R.I. for one year and fine of Rs. 500/- and in default of payment of fine, to further undergo RI for one month. 2. Aggrieved against the said judgment/order, the appellant has knocked the door of this Court through the present appeal. 3. As per the prosecution case, on 3.12.1996, Chanchal Kaur prosecutrix got recorded her statement Ex. PA with the police to the effect that on that day at about 11.00 a.m. she and her father were collecting fire-wood from the field near Gurdwara of Nabiabad. All of a sudden, a bull loosened and ran away. Her father chased the said bull and she remained standing in the field all alone. In the meanwhile, the appellant came there, caught hold of her and opened the string of her salwar and after laying her on the ground, committed rape with her. He also threatened that if she would raise any noise, he would kill her with knife. After rape, she raised alarm which attracted her father to the spot and on seeing him, the appellant ran away. Blood was coming out of her body and she narrated the whole occurrence to her father. Her father searched for the appellant but could not trace him. On the basis of this report, a case was registered against the appellant. The prosecutrix was medico legally examined and the appellant was arrested, who was also medico legally examined. Site plan of the place of occurrence was prepared. After the completion of the investigation, the challan was presented against the accused appellant. 4. Charge sheet was framed against the appellant to which he did not plead guilty and claimed trial. In order to prove its case, the prosecution examined 10 witnesses. The accused was examined under Section 313 Cr.PC wherein he denied the allegations levelled against him and pleaded his false implication. 4. Charge sheet was framed against the appellant to which he did not plead guilty and claimed trial. In order to prove its case, the prosecution examined 10 witnesses. The accused was examined under Section 313 Cr.PC wherein he denied the allegations levelled against him and pleaded his false implication. He took the stand that he had been working as labourer in the field of Didar Singh for the last more than two years. While he was spraying pesticide in the field, he became unconscious and was got admitted in the Hospital and was discharged after 10-12 days. At that time, Didar Singh had spent Rs. 12000/- on him and he was demanding that money and on his refusal to pay the same being a poor person, he was falsely implicated in this case in connivance with the prosecutrix. He also examined Balbir Singh as DW 1, Kapoor Singh as DW 2 and Harminder Singh as DW 3 in his defence. 5. The learned trial Court after going through the records, convicted and sentenced the appellant, as noticed above. 6. I have heard the learned counsel for the appellant, learned Assistant Advocate General, Haryana for the State and have gone through the records. 7. The entire case of the prosecution revolves around the statement of the prosecutrix, therefore, at the first instance, before laying my hands on the other evidence available on the record, I would like to go through the statement of the prosecutrix who is aged about 18-19 years. As per the version put forward by the prosecutrix, she accompanied her father to the fields to collect fire-wood on their cart. Her father had tethered the Bull and they started collecting fire wood. However the Bull got loosened and freed from the cart. Her father chased the Bull and as such she kept alone in the field. In the meantime, Sultan Singh accused came there and caught hold of her and forcibly lay her on the ground. He then broke the string of her salwar and committed rape upon her without her consent and against her will. She further disclosed that it was a sugarcane field and when she raised alarm, her father came there and on seeing her father, the accused ran away. He then broke the string of her salwar and committed rape upon her without her consent and against her will. She further disclosed that it was a sugarcane field and when she raised alarm, her father came there and on seeing her father, the accused ran away. In order to further appreciate the point involved in this case, the relevant portion of her statement is reproduced as under : "The sugarcane field was at a distance of about two kilas from the place where I was collecting firewood.............. I had accompanied my father to collect firewood for the first time on that day........... It is correct that the wheat was being sown during those days..... Accused might have taken five minutes in the whole occurrence. It might have taken five minutes more for the accused to have taken me forcibly to the fields of sugarcane from the place where I was collecting firewood. I tried to save myself from the clutches of the accused by giving fists and blows and however I could not succeed. I tried to save myself from the clutches of the accused in the sugarcane fields as well, however, he threatened me to kill with his knife. However, no scratches were there on the body of the accused or on my body..... Accused had taken me to the sugarcane fields by dragging. However, my clothes were not torn. I am married in Delhi. I had come to the house of my parents about 8-9 days prior to this occurrence. 8. The father of the prosecutrix also stepped into the box as PW 7, who has deposed that his daughter (prosecutrix) is married at Delhi and during the course of cross examination, he was unable to tell the address of his son-in- law at Delhi. 9. Dr. (Mrs) S. Ajmani was examined as PW5 and she has categorically deposed that there was no mark of external injury on her body and in her opinion, the prosecutrix was habitual of sexual intercourse. She has also deposed that the possibility of scratches having appeared on various parts of a person if he is dragged on the ground upto a distance of about one killa cannot be ruled out. She has also deposed that the possibility of scratches having appeared on various parts of a person if he is dragged on the ground upto a distance of about one killa cannot be ruled out. She also admitted that if a person is dragged in a sugarcane field having pointed residue of sugarcane, the possibility of some scratches having appeared on the body of a person cannot be ruled out. The Doctor has also admitted that if rape is committed upon an uneven surface, possibility of some scratches having appeared on the person of the prosecutrix cannot be ruled out. 10. After scrutinizing the medical evidence and as well as the statement of the prosecutrix, who is married and young woman, it is stands proved on record that she was a consenting party. Moreover, if she was dragged on a ground upto a distance of one killa, she was bound to suffer some bruises or minor injuries on some part of the body. It is the case of the prosecution that the offence was committed in a sugarcane field. Moreover, the version given in the FIR is totally different as has not disclosed the exact location of the offence at that time. The prosecutrix has further stated that she was threatened with a knife before the commission of the crime but the prosecution could not recover the said knife. Moreover, Joga Singh is also stated to be an independent and eye witness of the occurrence but for the reasons best known to the prosecution, said Joga Singh has not been examined by the prosecution. It does not appeal to reasoning at all that the appellant will take the risk of committing such an act particularly when the father of the prosecutrix was nearby. 11. Further, it is the case of the prosecution that the accused put one hand on the mouth of the prosecutrix while with another hand, he dragged her to the field where he committed rape upon her. 11. Further, it is the case of the prosecution that the accused put one hand on the mouth of the prosecutrix while with another hand, he dragged her to the field where he committed rape upon her. In Partap Misra and others v. State of Orissa 1977 Criminal law Journal 817, it has been held by the Honble Apex Court that the opinions of the medical experts showed that it was very difficult for any person to rape single handedly a grown up and an experienced woman without meeting the stiffest possible resistance from her and the absence of any injury either on the accused or the prosecutrix was a clear pointer to the fact that she had not put any resistance to the alleged rape leading to the irresistible conclusion that she was a consenting party. In view of this, I find that it would have been virtually impossible for the accused to put one hand on the mouth of the prosecutrix and with another hand, he would drag the prosecutrix, who is admittedly 25 years and a young married woman, and after dragging her with one hand to the field, would commit rape upon her. It appears that the prosecutrix herself was a consenting party in performing sexual intercourse with the accused and that is why no resistance was put up and as such no injury marks were found on any part of the body including her private parts. 12. Moreover, the Honble Apex Court in Dinesh Jaiswal v. State of M.P. 2010(1) R.A.J. 704 : 2010(2) RCR (Criminal) 139 has held that a prosecutrix must be believed irrespective of the improbabilities in her story and the version of the prosecutrix can be believed if the story put forward by her prima facie inspires confidence. But in the instant case, as noticed above, the version put forward by the prosecutrix does not appears to be plausible and rather the circumstances show that she was a consenting party to the sexual intercourse. 13. The admission of the prosecutrix in her cross examination reproduced above, further proves beyond doubt that the story put forward by the prosecution is wholly unsustainable. 13. The admission of the prosecutrix in her cross examination reproduced above, further proves beyond doubt that the story put forward by the prosecution is wholly unsustainable. It is significant to note that the victim was dragged in an sugarcane field and raped but even then, she did not receive any injury anywhere on her body, as is clear from medico-legal report Ex.PD, and even the abrasions were not found by the Medical Officer who stepped into the witness box and categorically deposed that the prosecutrix did not complain of any pain, she was young female moderately built and nourished about 19-20 years of age. The Medical officer further deposed that there as no mark of injury anywhere on the body and hymen was absent and no fresh tear was seen. 14. Moreover, the prosecutrix has categorically deposed and at the cost of repetition, I would like to observe that no resistance was shown by her at the time of committing the crime. I am conscious of the fact that the absence of the injuries on the person of the prosecutrix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case. In the instant case, the facts and circumstances are beating the drum that the prosecutrix was a consenting party. The other important feature of the case is that the father of the prosecutrix and one Joga Singh reached the spot on hearing the alarm raised by the prosecutrix and on seeing the accused allegedly fled away but they did not straight away chased the accused. All this clearly spells out that the prosecution has tried to build a castle on sandy foundation which is bound to collapse. Having regard to the above features of the case, the probability of the case having done the sexual intercourse with the prosecutrix with her consent cannot be ruled out. 15. In view of the infirmities pointed out and the erroneous approach of the trial court in construing the suggestion as an implied admission, on the part of the accused, the conviction as recorded above clearly beats drum of acquittal. 16. For the foregoing reasons, the conviction and sentence as recorded by the trial court cannot be sustained and the impugned judgment is set aside. 16. For the foregoing reasons, the conviction and sentence as recorded by the trial court cannot be sustained and the impugned judgment is set aside. The appellant is acquitted of the charge framed against him by giving him the benefit of doubt. Fine, if paid, be refunded to the accused appellant. His bail bonds stand discharged.