Criminal Appeal No.356-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.356-SB of 1998 Date of decision: 16.12.2009. Surjit Singh ....Appellant Versus State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Ashish Aggarwal, Advocate Mr. P.S.Batta, Addl. Advocate General, Haryana. S. D. ANAND, J. The appellant was convicted by the learned Trial Judge for offences under Sections 376, 450, 506 IPC. The prosecution version, upheld at the trial, was as under:- The prosecutrix was asleep in her house in the area of village Nalipur in the company of her five children. Her husband had earlier left the house at about 4.00/5.00 P.M. to visit his sister in the area of village Modipur and he was expected back home after about 1-1/2 hours. However, he did not return till 9.00 P.M. It was after lot of wait that the prosecutrix served food to her children, ate it herself as well and went to bed after finishing the kitchen job. At about 1.30/200 A.M., she heard a knock at the door of the house. She thought that her husband had come home. She opened the door and found the appellant standing over there. Appellant placed his hand on her mouth and forced himself upon her. He held out a threat that if the prosecutrix raised an alarm, he would eliminate her and her children. That threat was reiterated by him while leaving the house of the prosecutrix after the act. After the appellant had covered a Criminal Appeal No.356-SB of 1998 -2- **** distance of few yards, the prosecutrix mustered courage and raised an alarm which attracted Gopi and Hari Chand (who are her close relations and were residing in the neighbourhood ) and they spotted the appellant fleeing from the spot by jumping over the wall. On the return home of her husband at about 9.00 A.M. the following day, the prosecutrix brought facts to his notice. A Biradari Panchayat came to be convened. It was thereafter only that the offence was notified to the police vide Ex. PD. The prosecutrix was got medico legally examined. Her Salwar was taken into possession by the Medical Officer who examined her. The prosecutrix entered the witness box, as her own witness, as PW-7 and examined PW-8 Gopi Ram in support of presentation made by her. PW-10 SI Sitar Singh had investigated this case. PW-9 Dr. (Mrs.) Shashi Prabha, M.O.,C.H., Karnal had medico legally examined the prosecutrix. She found as under:- “There was a reddish contusion 16 cm X 6 cm on the lateral aspect of the left thigh in its upper half”. She further opined, on perusing the FSL report, that “the prosecutrix was subjected to sexual activity”. The appellant, who was arrested on 3.5.1996 was medico legally examined by PW-1 Dr. Piyush Kumar, then posted at P.H.C., Kunjpura. He opined that there was nothing to suggest that appellant was not capable of doing sexual intercourse. The testimony of other witnesses is formal in character. Ex. PH is the FSL report. The appellant raised a plea of innocence by averring as under:- “I am innocent. Prosecutrix was caught red handed by her Criminal Appeal No.356-SB of 1998 -3- **** husband in compromising position with some third person as she is a lady of loose character. That third person ran away and I have been falsely implicated in this case later on as I was on inimical terms with her husband.” The appellant did not adduce any evidence in defence. A plea raised by the learned counsel for the appellant about the falsity of the prosecution presentation deserves acceptance for the reasons noticed hereunder:- On the own showing of the prosecutrix, her five children were asleep in the same room where her person was allegedly violated by the appellant. It is also in her statement that her eldest child was 11 years old and youngest was 1-1/2 years at the relevant point of time. It is further in her statement that Gopi is real brother of her husband and Hari Chand (who was given up at the trial as having been won over by the appellant), is a son of paternal uncle of the her husband. She also testified that the house of Gopi aforementioned is adjacent to the back portion of her house and that there is a gali on three sides of her house. She further testified that house of Hari Chand is adjacent to that of PW-8 Gopi. It defies logical comprehension that a female who wants to resist an act of violation of her person would not make noise to wake up children, who were asleep in that very room and eldest of whom was 11 years old. There is ample material on record to prove that her two close relations (Pw-8 Gopi and one Hari Chand) were living in the immediate vicinity of her house. Though she did try to wriggle out of the predicament of having to explain proven non raising of noise by averring that the appellant was carrying a weapon at the relevant point of time, none is recovered even averred to have been by the police. It does not appeal to Criminal Appeal No.356-SB of 1998 -4- **** the reason that a married female whose husband was expected back home any time because his arrival had already been delayed, would have allowed a stranger village-mate to rape her in the averred manner. Insofar as PW-8 Gopi is concerned, he claimed to have come to the spot on hearing the cries of the prosecutrix. When he reached there, he found her crying out side the room. As per his statement, the intervening distance was about two yards from the place where the appellant was trying to escape by jumping over the wall. By the very nature of things, it is back of the appellant which must have been visible to Gopi Ram and, thus, he would not have been able to identify him by any stretch of interpretation. Insofar as Hari Chand is concerned, he just could not have been able to idenity the appellant because the appellant had covered a distance of about one killa from the house of the prosecutrix when PW Hari Chand reached over there. The fact of distance aforementioned was indicated by PW-8 Gopi Ram himself. Insofar as Hari Chand is concerned, he was given up by the prosecution as having been won over by the appellant. As already noticed, he was a close relation of the prosecutrix. It would have been fair on the part of the prosecution to examine him and let the Court arrive at its own conclusion with regard to winning over or otherwise of that witness. In the circumstances of the case, the only inference deducible is that Hari Chand had been withheld by the prosecution at the trial. The learned State Counsel, then, argues that the FSL report is conclusive to nail the appellant. The plea is denuded of merit. All that FSL report Ex. PH states is that human semen was found on smears, Salwar and underwear. FSL did not identify the grouping of the human semen found on the Salwar and underwear. The prosecutrix is a married Criminal Appeal No.356-SB of 1998 -5- **** lady. The appellant, at the relevant point of time, was an unmarried young man aged 23 years. Mere availability of semen on his underwear cannot be justify the drawer of conclusion that appellant had violated the person of the prosecutrix. Further, in the absence of commonality of grouping of human semen, it also cannot be said that it was seminal emission of the appellant which found its way to the Salwar of the prosecutrix. The husband of the prosecutrix was not examined at the trial. He was the best person to depose about his whereabouts for the duration of absence from house. His presence would have enabled the Trial Court to examine the validity or otherwise of the plea taken up by the appellant in the course of his statement under Section 313 Cr.P.C. In the light of foregoing discussion, it is held that prosecution has not been able to prove the case beyond shadow of doubt. The appeal shall stand allowed, The finding of conviction and sentence shall stand set aside. The appellant is acquitted of the charge. December 16, 2009 (S. D. ANAND) Pka JUDGE