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2010 DIGILAW 1716 (PNJ)

Rajesh v. State of Haryana

2010-05-18

HARBANS LAL

body2010
JUDGMENT HARBANS LAL, J. 1. This appeal is directed against the judgment dated 28.8.2007/order of sentence dated 29.8.2007 passed by the court of learned Sessions Judge, Bhiwani whereby he convicted and sentenced the accused Rajesh to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.15,000/- under Section 376 of I.P.C. and in default of payment of fine to further undergo rigorous imprisonment for two years. 2. The factual score records that on 12.9.2006, the prosecutrix (to prevent social victimization, name of the prosecutrix/victim is not being indicated in view of Premiya alias Prem Prakash Vs. State of Rajasthan 2008(4) Recent Criminal Reports 539 (SC)) made statement before Satyawan Assistant Sub Inspector in the terms that on that day at about 2.00/2.30 P.M. she carried lunch for her father to their 'bara' (enclosure). Her father was erecting 'chhan' (thatched roof) of Suraj Bhan. Finding her alone, the accused came over there and broke the string of her salwar and started having sexual intercourse with her after having stuffed her chuni (headgear) in her mouth due to which she could not raise hue and cry. Meanwhile, her father came there. On catching sight of him, the accused took to his heels. The 'chuni' was taken out from her mouth by her father. The negotiations for compromise did not make head way. On the basis of this statement, formal F.I.R. was registered. The accused was put under arrest. After completion of investigation, the charge-sheet was laid in the court for trial of the accused. 3. The accused was charged under Section 376 of I.P.C. to which he did not plead guilty and claimed trial. In order to bring home guilt against the accused, the prosecution examined PW-1 Dr. Amrita Bhardwaj, PW-2 Sub Inspector Virender Singh, PW-3 Sub Inspector Jaipal Singh, PW4 prosecutrix, PW-5 Parkash father of the prosecutrix, PW-6 Satbir Singh Draftsman, PW-7 Madan Singh, PW-8 Head Constable Rajpal Singh, PW-9 Constable Rajesh, PW-10 Dr. Neeraj Indora, PW-11 Assistant Sub Inspector Satyawan Investigating Officer and closed its evidence. 4. When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. In his defence, he examined Suraj Bhan DW-1. 5. Neeraj Indora, PW-11 Assistant Sub Inspector Satyawan Investigating Officer and closed its evidence. 4. When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. In his defence, he examined Suraj Bhan DW-1. 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 therewith, 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. To begin with, Mr. Anil Ghanghas Advocate on behalf of the appellant urged with great eloquence that a meticulous perusal of the statements recorded under Sections 161 and 164 of Cr.P.C. would reveal that it is a case of consensual intercourse as the prosecutrix was 19 years of age at the material time, but this stark fact has been ignored by the learned trial Court. It is deducible from the prosecutrix's statement that it was only on catching sight of her father that she raised hue and cry. If he had not appeared on the scene, she without any objection from her side, would have continued with the sexual intercourse being committed with her. As is borne out from the statement of the prosecutrix as well as other prosecution witnesses, a panchayat was convened, but the compromise could not be materialized. It gives an inkling that it is a deliberate attempt to involve the appellant in this case with an oblique motive. As is being alleged, the hands of the prosecutrix were tied at the time of the occurrence. If it was so, in all probabilities, she was bound to sustain marks of injuries on her body, which to the utter dismay of the prosecution are lacking in this case. Dr. Amrita Bhardwaj PW who had medico legally examined the prosecutrix has stated in categoric terms that “there is no sign of any forcible sexual intercourse which further strengthens the fact that the prosecutrix was a consenting party.” The place of occurrence being an open space is frequented by passersby. That being so, it would be going too far to say that such an occurrence would have occurred at such a place. 8. That being so, it would be going too far to say that such an occurrence would have occurred at such a place. 8. To tide over these submissions, the learned State counsel pressed into service that there is not even an iota of evidence demonstrative of the fact that the prosecutrix had given consent for the sexual intercourse. The case of the prosecution cannot be thrown out of hand, merely because of there being no mark of injury on her body. On evaluating the entire prosecution evidence, it emerges out that the appellant had sexual intercourse with her against her volition. 9. I have well considered the rival contentions. 10. In State of Karnataka Vs. Bantara Sudhakara @ Sudha & Another 2008(3) Recent Criminal Reports(Criminal)923 it has been ruled by the Supreme Court that the accused in a rape case cannot be acquitted on the ground that the victim was a consenting party, where the accused has not taken any stand that there was any consent. Adverting to the case in hand, a careful delving into the statutory statement of the appellant recorded under Section 313 of Cr.P.C. would reveal that he has not taken the plea that the prosecutrix was a consenting party, rather he has put forth that he has been falsely implicated in this case due to enmity. So in view of Bantara Sudhakara @ Sudha's case (supra), the first limb of the arguments raised on behalf of the appellant pales into insignificance. Doubtless that as is borne out from Ex.DA (statement recorded under Section 164 of Cr.P.C.) the prosecutrix has given out her age to be 19 years, but merely being major does not mean that she would have certainly been a consenting party to the sexual intercourse. As per the Forensic Science Laboratory's report Ex.P-5, human semen was detected on her salwar. She as PW-4 has testified in her cross-examination that “There was bleeding due to intercourse and salvar and chuni were stained with the same. The blood also fell on the earth. I did not receive injury as it was soft earth.” Palpably, she has rendered the account for there being no injury on her body during the forcible sexual intercourse. As ruled by Supreme Court in Karnel Singh Vs. The blood also fell on the earth. I did not receive injury as it was soft earth.” Palpably, she has rendered the account for there being no injury on her body during the forcible sexual intercourse. As ruled by Supreme Court in Karnel Singh Vs. State of Madhya Pradesh A.I.R. 1995 SC 2472 the evidence of the prosecutrix need not be tested with the same amount of suspicion as that of an accomplice. It has been further observed that find of semen on petticoat and in vagina lends assurance to the story narrated by the prosecutrix. So in the instant one, find of the human semen on her salvar lends assurance to the tale narrated by her. In Sat Pal Vs. State of Punjab 1997(1) Recent Criminal Reports(Criminal)92 it was held that in the absence of injuries on external as well as internal parts of the body of the prosecutrix, it could not be held that she gave her consent. 11. In State of Punjab Vs. Gurmeet Singh 1996(1) Recent Criminal Reports(Criminal)533 it has been held by the Supreme Court that even if there was some litigation, a father will not put forth his daughter to make wild allegations with a view to take revenge. It defies human probability. No father could stoop so low as to bring forth a false charge of rape on his unmarried daughter with a view to take revenge. Here in this case, as argued on behalf of the appellant, the wife of the appellant and wife of the uncle of the prosecutrix had contested panchayat election and for that reason, this case has been foisted upon the appellant. This contention has no legs to stand upon. It is unexpected of Parkash PW-5 father of the prosecutrix that he would have brought his daughter into disrepute and staked the honour of his family to take the revenge of his relative. Startlingly enough that even the name of her such uncle has not been divulged, which hollows this argument out. In State of Rajasthan Vs. N.K. 2000 Criminal Law Journal 2205, it has been held that “father would not ordinarily subscribe to a false story of sexual assault involving his own daughter and thereby putting at stake the reputation of the family and jeopardize the married life of a daughter.” The prosecutrix herein was statedly a bachelor at the time of this occurrence. N.K. 2000 Criminal Law Journal 2205, it has been held that “father would not ordinarily subscribe to a false story of sexual assault involving his own daughter and thereby putting at stake the reputation of the family and jeopardize the married life of a daughter.” The prosecutrix herein was statedly a bachelor at the time of this occurrence. It has been authoritatively pronounced by the Supreme Court that the absence of injuries on the body of a rape victim is not necessarily an evidence of consent or falsity of the allegation. The Courts have to display a greater sense of responsibility and be more sensitive while dealing with charges of sexual assault on women. If the prosecution has not succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of the acquittal by giving weight to irrelevant or insignificant circumstances. An unmerited acquittal encourages wolves in the society being on prawl for easy preys, more so, when the victims of crime are helpless females. Here in this case, the sum and substance of the prosecutrix's statement is that the appellant broke the string of her salwar and committed rape with her by stuffing her mouth with her chuni (headgear) after having tied her hands. It is in the evidence of Dr. Amrita Bhardwaj PW-1 that the prosecutrix was wearing white shirt and pink dupatta. Stains were present on dupatta. She had changed underwear before examination. On genital examination, white discharge was present on pubic hair. External examination admitted two fingers tightly. She was of the opinion that intercourse had been done on patient(referring to the prosecutrix). Dr. Neeraj Indora PW-10 has testified that “In my opinion, there was nothing to suggest that Rajesh(referring to the appellant) was not in a position to perform sexual intercourse.” This evidence go a long way in proving that the appellant had forcibly committed sexual intercourse with the prosecutrix. 12. Dr. Neeraj Indora PW-10 has testified that “In my opinion, there was nothing to suggest that Rajesh(referring to the appellant) was not in a position to perform sexual intercourse.” This evidence go a long way in proving that the appellant had forcibly committed sexual intercourse with the prosecutrix. 12. Surajbhan DW-1 has deposed that “On that day (referring to the date of the incident) no incident of rape took place in 'bara' of Om Parkash, which is visible from my 'bara'.” It is in his cross-examination that “neither police asked me nor I ever told the police that no rape was committed with the daughter of Om Parkash.” In all human probabilities, he would have learnt that the appellant has been arrested in this rape case. If according to him no such incident had occurred on the said date, he would have brought this fact to the notice of the investigator by making a statement. It was not difficult for the appellant to procure the services of this defence witness. This apart, the statements of the prosecutrix and her father coupled with the medical evidence establishes the guilt against the appellant whereas the statement of the defence witness has gone uncorroborated on the record. Thus, the ocular account duly supported by medical evidence tendered by the prosecution viz-a-viz the defence competes in probability. So, it crystalizes the conclusion that the charged offence stands proved to the hilt. 13. No other material point has been urged or agitated by either counsel. 14. As a sequel of the above discussion, the conviction recorded by the learned trial Court is maintained. 15. On behalf of the appellant, it has been submitted that the appellant has undergone more than three years of the actual sentence and this incident being sufficiently old, the sentence may be slashed to the already undergone. As per the custody certificate taken on record, the appellant has undergone 3 years 4 months and 6 days of the actual sentence. To my mind, in the factual scenario, the ends of justice shall be adequately met, if this submission is accepted. So, the sentence of the appellant is reduced to the already undergone (3 years 4 months and 6 days) while maintaining the fine as well as its default clause. With this modification in the order of sentence, this appeal fails and is dismissed. 16. So, the sentence of the appellant is reduced to the already undergone (3 years 4 months and 6 days) while maintaining the fine as well as its default clause. With this modification in the order of sentence, this appeal fails and is dismissed. 16. Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of. Appeal disposed of.