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2011 DIGILAW 2089 (PNJ)

Hem Raj v. State of Haryana

2011-11-22

M.JEYAPAUL

body2011
JUDGMENT Mr. M. Jeyapaul, J.(Oral) - The accused was convicted for the offence under Section 376 and 450 IPC. He has challenged the conviction and sentence passed by the trial Court. 2. The brief case of the prosecution is that on 13.3.1999 at about 00.30 a.m. when the prosecutrix who was examined as PW5 had been to pass urine by the side of the common wall of her house after watching the television till that time, the accused who was a neighbour scaled the wall and having jumped into the compound of the house of the prosecutrix committed rape upon her. The complaint itself was lodged by the prosecutrix setting the law in motion. She made an attempt to commit suicide by taking some tablets. She was admitted to Sardarjung Hospital at New Delhi. She was examined medico-legally by Dr.Anjali Shah. Though she was not examined before the trial Court, the medico-legal report prepared by her was marked through PW6 J.B. Bhardwaj, Medical Record Technician. Dr.Anjali Shah has recorded the fact after medico-legally examining the prosecutrix that though there was no external injuries found on the person of the prosecutrix, the hymen was found torn, the vagina admitted two fingers easily. The MLR prepared by Dr.Anjali Shah was marked as Ex.PJ before the trial Court. PW2 Dr.M.C. Sehrawat examined the accused after he was produced on arrest. He having examined him gave an opinion that there was nothing to suggest that he could not perform sexual intercourse. The salwar of the prosecutrix and the underwear of the accused were sent on recovery to the chemical examiner. The chemical examiner in his report (Ex.PR) has certified that human semen was detected on the salwar of the prosecutrix and the underwear of the accused. 3. The trial Court having relied upon the testimony of the prosecutrix, in the background of the medical evidence on record recorded conviction as stated supra. 4. Learned counsel appearing for the appellant would submit that even as per the version of PW5, prosecutrix in this case, no rape was committed by the accused. At best, it could be construed that there was an attempt made by the accused to commit rape upon the prosecutrix, even as per the own version of the prosecutrix. He would also submit that the prosecutrix disowned her statement before the police official. She has also deposed that she was not medico-legally examined. At best, it could be construed that there was an attempt made by the accused to commit rape upon the prosecutrix, even as per the own version of the prosecutrix. He would also submit that the prosecutrix disowned her statement before the police official. She has also deposed that she was not medico-legally examined. Referring to the MLR marked as Ex.PJ, he would submit that no mark of injury was found on the person of the prosecutrix. Drawing the attention of this Court to the testimony of the investigating officer who was examined as PW7, he would submit that there was a possibility of the prosecutrix having intercourse with the accused by consent. Referring to the evidence of PW1, he would submit that PW1 would not have been present at the time when the accused was found within the compound of his house. He has come out with a contradictory version from that of the first version found in the statement under Section 161 Cr.P.C. The Doctor who medico-legally examined PW5 was not examined before the Court. In short, the prosecution has miserably failed to establish the offence of rape committed by the accused, he would submit. 5. I heard the submission made by learned AAG, Haryana appearing for the State. 6. PW5 who is the prosecutrix in this case is found to be the star witness. Her testimony would ultimately decide the fate of the case. PW5 during the course of chief-examination has deposed that she was committed rape by the accused. Again she self-contradicted herself and stated that infact he did not rape her, but he made an attempt to rape her. Thereafter, the prosecution, finding that the prosecutrix has come out with a contradictory version from that of her statement under Section 161 Cr.P.C., requested the trial Court to treat her as hostile. On permission, the prosecutrix was subjected to cross-examination by the prosecution. In no ambiguous terms she has stated during the course of cross-examination by the prosecution that it was correct that accused committed rape upon her. Not stopping with that she has come out with an assertion that the statement she had made earlier that the accused had not committed rape upon her was incorrect. 7. In no ambiguous terms she has stated during the course of cross-examination by the prosecution that it was correct that accused committed rape upon her. Not stopping with that she has come out with an assertion that the statement she had made earlier that the accused had not committed rape upon her was incorrect. 7. Taking advantage of the nebulous version found in the testimony of PW5, it is submitted that the charge of rape was not established through the prosecutrix who was examined as PW5. In my considered view, though the prosecutrix has come out with a self-contradictory version during the course of chief-examination, one that she was raped and the other that the accused made an attempt to rape her, when she was subjected to cross-examination by the prosecution, she was definite as to the occurrence and has come out with a strong version that she was infact raped by the accused and her nebulous statement that attempt alone was made to rape her was wrong. 8. Such a testimony of the prosecutrix will have to be tested on the touchstone of the medical evidence available on record. The Court is not happy with the way in which the prosecution conducted its trial before the trial Court. Dr.Anjali Shah might have been stationed at Delhi, but in my considered view, she was an important witness who having medicolegally examined the prosecutrix had given medico-legal report. It is true that the prosecution had for the reasons best known withheld the evidence of Dr.Anjali Shah. But the question is whether the MLR submitted by her could be relied upon by the Court in the absence of the examination of the author of the MLR. In the instant case, it is found that PW6 J.B. Bhardwaj, Medical Record Technician was examined to mark the MLR submitted by Dr.Anjali Shah as Ex.PJ in the usual course of discharging her professional duty. In my considered view, such a lapse on the part of the prosecution in not examining the Doctor who subjected the prosecutrix to examination would not throw away the case of the prosecution. The prosecution might have withheld some witnesses for the reasons best known to them, but the Court can still rely upon the testimony of the prosecutrix in the background of the available medical evidence on record and record conviction as against the accused. 9. The prosecution might have withheld some witnesses for the reasons best known to them, but the Court can still rely upon the testimony of the prosecutrix in the background of the available medical evidence on record and record conviction as against the accused. 9. The MLR (Ex.PJ) would speak to the fact that the hymen of the prosecutrix was found torn and the vagina admitted two fingers easily. It is true that the Doctor who subjected the prosecutrix to examination did not find any external injuries on the person of the prosecutrix. There are some circumstances under which a rape victim does not receive any injury. 10. In the instant case, the prosecutrix has deposed that the accused caught-hold of her hands and feet and did not permit her to struggle. The accused who had embarked upon such an activity would have used full vigor of his youth to cripple the victim before ever he accomplished the task. In addition to that, PW5 had deposed that the accused also closed her mouth. She could raise alarm only after the closure of the mouth was removed. When the accused had used all his might to commit rape upon the prosecutrix by almost crippling the victim, the question of making an attempt to bite the accused would not arise. Even otherwise, in all cases of rape the Court cannot expect the victim to bite the accused. Therefore, lack of biting marks on the person of the accused does not in any way improve the defence set up by the accused. The medical evidence in the form of MLR (Ex.PJ) completely corroborates the evidence of the prosecution that she was committed rape. Mere attempt had not been made, as was her first version in the chief-examination portion of her evidence, but her assertive version that she was committed rape finds support from the medical testimony. 11. To say the least, the investigating officer in this case had travelled beyond his brief. He was examined before the Court to speak on the records. He has blabbered before the Court saying that it was true that previously the prosecutrix might have intercourse with the accused with consent. Nothing has been collected by PW7 during the course of investigation to suggest such an earlier episode. He was examined before the Court to speak on the records. He has blabbered before the Court saying that it was true that previously the prosecutrix might have intercourse with the accused with consent. Nothing has been collected by PW7 during the course of investigation to suggest such an earlier episode. When there is no material collected by the investigating official to suggest that there was previous intimate contact between the accused and the prosecutrix, such a damaging version of the investigating officer which is not expected to him does not prove fatal to the case of the prosecution. 12. The salwar of the prosecutrix and the underwear of the accused were sent for examination alongwith other materials by the investigating official. The FSL returned a finding in its report Ex.PR that human semen was detected not only on the salwar of the prosecutrix, but also on the underwear of the accused. There was no explanation from the accused as to how human semen was detected in his underwear. The above report submitted by the FSL also lends corroboration to the evidence of the prosecutrix. 13. PW1 Fateh Ram brother of the prosecutrix has come out with a totally improved version before the Court. The prosecutrix had deposed that the accused had sped away after she raised alarm. Therefore, there would have been no occasion for PW1 to witness the last limb of the episode. Therefore, I have no hesitation to reject the testimony of PW1 which does not pass the test of credibility. The evidence of PW2 Dr.M.C.Sehrawat would establish that the accused had the potential to perform sexual intercourse. 14. PW5 has stated that she had not made any statement to the police. She had also stated that she was not subjected to any medical examination. Such a version would have been projected by PW5 due to ignorance. The whole case of the prosecution has been founded only on the complaint lodged by PW5 and the investigating officer cannot conjecture that a girl was subjected to rape and therefore, even without any complaint from the victim or one of her relatives he would investigate such a case. Based on the complaint lodged by the prosecutrix, the whole investigation had been embarked upon by PW7. Based on the complaint lodged by the prosecutrix, the whole investigation had been embarked upon by PW7. The records would go to establish that PW5 infact had made an attempt to commit suicide and as a result of which she was also admitted to the hospital. Unless she was subjected to medical examination, there was no reason for Dr.Anjali Shah to come out with the MLR (Ex.PJ) to disclose the fact that there was symptoms of rape upon the prosecutrix. When PW5 had almost supported her version in the statement under Section 161 Cr.P.C., her evidence before the Court that no statement was given before the police does not in anyway casts a doubt on her testimony before the trial Court. 15. Of course, learned counsel appearing for the appellant would submit that it may be a case of attempt to commit rape. But, in my considered view, the entire evidence on record suggests otherwise. An ultimate version of PW5 and the medical evidence would go to establish that infact PW5 was subjected to rape by the accused, having trespassed upon the house of the prosecutrix. Learned counsel appearing for the appellant also referred to a decision of this Court in Manoj vs. State of Haryana, [2008(4) LAW HERALD (P&H) 2701] : 2008(3) RCR (Criminal) 573. Firstly, that was a case where the accused was ultimately charged under Section 376 read with Section 511 IPC. In other words, that was a case where the accused faced a charge of attempt to commit rape upon the prosecutrix. He also referred to the decision of this Court in Nanak Chand vs. State of Haryana, [2005(3) LAW HERALD (P&H) 301] : 2006(1) RCR (Criminal) 14. That was a case where the witnesses examined on the side of the prosecution come out with a case that the accused just lay naked on the prosecutrix. Those cases, in the above facts and circumstances, are quite distinguishable from the facts of this case where the evidence of the prosecutrix in the background of medical available on record establishes that there was rape committed by the accused on the prosecutrix. 16. In the instant case, there was a delay of 1 day in lodging the FIR by the prosecution. The materials available on record would establish that the prosecutrix who was under depression made an attempt to commit suicide after the occurrence. 16. In the instant case, there was a delay of 1 day in lodging the FIR by the prosecution. The materials available on record would establish that the prosecutrix who was under depression made an attempt to commit suicide after the occurrence. The family would have been shattered having found that one of the female members of the family was subjected to rape by a neighbour. In a case of rape, the victim’s family takes some time to reconcile itself with the situation before ever making the affair public by lodging the complaint. Therefore, one day delay in lodging the complaint in the instant does not in any way prejudice the accused. 17. The Hon’ble Supreme Court in Raj Kumar @ Raju Yadav @ Raj Kumar Yadav vs. State of Bihar, 2007(5) RCR (Criminal) 41, in the background of the special facts and circumstances of the case that there was no confirmatory evidence of rape available from the medical side, chose to reduce the sentence awarded to the appellant therein to the period already undergone by him. In the instant case, the medical evidence very much supports the case of the prosecution. There is also no inordinate delay in lodging the FIR. Therefore, the above ratio also will not apply to the facts and circumstances of this case. 18. In view of the above, I find that the trial Court has rightly recorded conviction as against the accused. I do not find any reason to warrant interference with the well reasoned judgement of the trial Court. Therefore, the judgement of conviction and order of sentence passed by the trial Court as against the accused stands confirmed and the appeal is dismissed. ------------------