Criminal Appeal No.1004-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1004-SB of 1998 Date of decision : 19.9.2008 Moti .....Appellant Versus State of Haryana ...Respondent CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. R.S.Mamli, Advocate for the appellant Mr. S.S.Mor, Senior Deputy Advocate General, Haryana **** S. D. ANAND, J. The present appeal is directed against judgment dated 9.11.1998 vide which the learned Additional Sessions Judge, Jagadhri convicted the appellant for offences under Section 376, 323 and 506 IPC. The appellant was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5000/- for the offence under Section 376 IPC; while he was directed to undergo rigorous imprisonment for six months each for the offences under Section 323 and 506 IPC. The substantive sentences were ordered to run concurrently. The prosecution allegations, at the trial, were as under:- The prosecutrix (PW-3), who is legally wedded wife of Bittu, went over to the Bara to collect Palak on the date of the impugned occurrence. After having done that job, she went over to the fields owned by Balwant Singh, Numberdar, in order to relieve herself. The appellant appeared on the scene and started teasing her. Thereafter, he forcibly Criminal Appeal No.1004-SB of 1998 -2- **** ravished her without her consent. In the course of the resistance offered, the prosecutrix sustained certain injuries and she also caused certain injuries to the appellant. She was initially disabled by the appellant from raising a raula as he cupped her mouth with the help of her Dupatta. After the appellant had completed the act and prosecutrix was able to get herself released, she raised a raula which attracted her mother-in-law PW-4 Rattan Kaur to the spot. On seeing her arrive over there, the appellant fled the spot but only after holding out a threat to the prosecutrix that she would be done to death in case she disclosed that fact to anybody else. PW-4 Rattan Kaur and Raj Kumar, elder brother of husband of prosecutrix, brought the prosecutrix to the Civil Hospital, Yamuna Nagar, where she was medico legally examined by PW-8 Dr. Madhu Goyal. The offence was notified to the police by the prosecutrix, vide statement Ex. P-D. Formal FIR Ex. PL came to be recorded on the basis thereof. PW-1 HC Ram Kala had accompanied the Investigating Officer to Civil Hospital, Yamuna Nagar, for purpose of recording the statement of the prosecutrix. Besides it, he had also attested Ex. PA, vide which one parcel and two bottles, handed over by Dr. Madhu Goyal to the police, were taken into possession. He further testified that the appellant had also been got medico-legally examined on that very date. He also attested arrest memo Ex. PC, pertaining to the appellant. PW-2 Zile Singh had delivered the special report to the learned Illaqa Magistrate. PW-3 Meena is the prosecutrix; while PW-4 Mst. Rattan Kaur is her mother-in-law. PW-5 Prem Chand Patwari had prepared the scaled site plan Criminal Appeal No.1004-SB of 1998 -3- **** (Ex. PE) on the pointing of the prosecutrix. PW-6 Dr. M.K. Goel, Assistant Director, FSL, Haryana, tendered the FSL report Ex. PF, which bears his signatures, into evidence. PW-7 MHC Karan Singh and PW-13 Constable Suresh Kumar tendered their formal affidavits Ex. PJ and Ex. PN respectively into evidence. PW-8 Dr. Madhu Goyal had medico-legally examined the prosecutrix and found the following injuries on her person:- “1. Mark of abrasion on the face below left eye brow ½ X ½ in length. 2. Mark of abrasion on the left mandibular region 1 X1/2 inch 3 inch medial to ear. 3. Mark of abrasion at the root of neck 2” X 1/2”. 4. Mark of abrasion near thyroid cartilage 1” x 1”. She also testified that face and eyes of the prosecutrix were found to be red and swollen, that no marks (of injuries) were present on the abdomen, breast, axilla, arm, thigh and leg of the prosecutrix and that, on P/V examination, vagina admitted two fingers easily. She also did not observe any injury on the vagina. No bleeding was found present. The clothes worn by the prosecutrix were taken off her, made into a sealed parcel and handed over to the Police by Dr. Madhu Goyal. PW-9 Dr. Deepan Jain, Medical Officer, G.H., Yamuna Nagar, medico-legally examined the appellant on 25.3.1998 at 8.40 P.M. and the following injures were found on his person:- “1. Abrasion of the size 1/1 cm X 1 mm on the left cheek. 2. Another abrasion on the right cheek 1 cm X 1 mm.” Besides finding that there were no marks of injury on the Criminal Appeal No.1004-SB of 1998 -4- **** private parts of the appellant, who had neither changed clothes nor had had a bath after the impugned occurrence, Dr. Jain also made the following observations:- “Smegma present on the inner aspect prepuce and around the base of glance pennis. There is no metting of pubic hair. There is no mark of any external violence on the body except two minor abrasions on the both side of the face.” Her further opined that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. PW-10 Dr. Ashok Gupta, Medical Officer, G.H., Yamuna Nagar had opined (on police request Ex. PK ) that the prosecutrix was fit to make a statement. PW-11 ASI Hakam Singh had recorded formal FIR Ex. PL on receipt of ruqqa in this case. PW-12 SI Rattan Singh is the Investigating Officer. PW-14 Om Parkash Kadian, DSP after verification of facts, ordered the addition of the offence under Section 307 IPC. The appellant offered a plain denial of the allegations and alleged that he had been falsely implicated because of the party faction in the village. The appellant did not adduce any evidence in defence. Learned counsel for the petitioner argued in favour of the invalidation of the impugned finding of indictment by pointing out that the FSL report and the finding by PW-9 Dr. Deepan Jain are adequate enough to falsify the allegation in the context of commission of rape. He invited the attention of this court to the following finding recorded by the FSL:- Criminal Appeal No.1004-SB of 1998 -5- **** “1. Human semen was detected on exhibit-1 (underwear), exhibit-2 (Salwar). However, semen could not be detected on exhibit-3 (vaginal swab) and exhibit-4 (pubic hairs). 2. Hair in exhibit -4(Pubic hairs) were identified as Human hairs.” In that very context, learned counsel relied upon the finding recorded by PW-9 Dr. Deepan Jain to the effect that “Smegma present on the inner aspect prepuce and around the base of glance pennis”. The fact that semen could not be detected on the salwar of the prosecutrix, the vaginal swab and the pubic hairs taken off her person, appreciated in the light of above quoted finding of PW-9 Dr. Deepan Jain, go a long way to disprove the allegations of rape. Insofar as the semen found on the underwear is concerned, it is totally insignificant because Dr. Madhu Goyal nowhere stated that the underwear of the prosecutrix had been obtained, sealed and handed over to the police. Though the appellant has not pleaded that the impugned occurrence was a consensual affair, there is evidence aplenty on the file to suggest that either no rape had taken place at all or it was all with the consent of the prosecutrix. On the own showing of the prosecutrix, the impugned occurrence had taken place in a field where sugarcane crop was standing. She also testified that sugarcane crop was damaged at the site of the impugned occurrence. Qua latter part of testimony, it requires pertinent notice that site plan which is a part of prosecution presentation is not supportive of that fact. The prosecutrix is contradicted on the above noticed point by the testimony on oath of her mother-in-law PW-4 Rattan Kaur who testified that “the sugar cane crop was not damaged at the place Criminal Appeal No.1004-SB of 1998 -6- **** of occurrence.” The prosecutrix further told the Court that the impugned occurrence lasted about 25 minutes. In another part of her cross- examination, she averred that “it took about 30 minutes at the place of occurrence” She further testified that “it took about 15 minutes in the scuffle when I was trying to get rid off accused Moti Ram. During that period of 15 minutes my mouth was not closed with any cloth or by any other means and I could speak at that time.”If that were so, there is no reason why she would not have raised a raula at an earlier part of time. It is in the statement of the prosecutrix that the Bara, where she had gone to collect vegetable, is at a distance of about 2 killas from her residence. That distance was given by her mother-in-law i.e. PW-4 Rattan kaur as one killa. The prosecutrix averred that there are other Baras in between her residential house and that there are 3-4 houses in between Bara and residential house. Her version is that nobody was present in those Baras at that time. She did not, at all, indicate whether any one was available in those 3-4 houses or not. She otherwise told the Court that nobody was working in the fields at that time. Her mother-in-law also supported the statement of the prosecutrix on the last indicated point. However, she too did not aver that anyone was available in those Baras or the 3-4 houses which intervened the Bara and the residential houses. Further, the prosecutrix would want the Court to believe that “mother-in-law had come to the place of occurrence after about 25 minutes of sexual intercourse”. In the matter of quantification of the interval, she is falsified by her mother-in- law who testified that “it took about five minutes so as to arrive at sugar cane field.” Interestingly enough, PW-4 Rattan Kaur conceded that she did not raise any alarm. She tried to wriggle out of that statement by averring that she was (more) interested in looking after her daughter-in- Criminal Appeal No.1004-SB of 1998 -7- **** law. Infact, PW-4 Rattan Kaur does not claim to have been an eye witness of the act of ravishment. She conceded that “I had not seen the occurrence myself but my daughter-in-law had disclosed the entire version to me”. It would be a matter of common observation that if the impugned occurrence had taken place in the alleged manner, the back side of the prosecutrix would have sustained lot of abrasions, bruises/scratches which, in this case, were not found by Dr. Madhu Goyal, PW-8 on the back side of the prosecutrix. In the context, it would be pertinent to notice that Dr. Madhu Goyal found that “there were no abrasion or scratch mark on the legs, face and other parts of body and private parts of the body during the course of my examination.” She conceded, as correct, a suggestion that “if such female who is subjected to pressure and forcible attempt of rape and she resists for the same, abrasion and scratches are bound to come on the part of the body including private parts of such a female.” She did, however, indicate in the concluding sentence of her cross-examination that such abrasion or scratches may not occur if the ravished female become unconscious during the act. In the present case, even the prosecutrix did not indicate that she became unconscious during the impugned occurrence. All that she stated was that she was unconscious when she was taken to hospital and regained consciousness after about ½ hour. There also, she does not appear to be presenting a truthful version because PW-4 Rattan Kaur did not own up that fact. Being her mother-in- law and one of the person who accompanied the prosecutrix to the hospital, PW-1 Rattan Kaur was the best circumstanced to indicate Criminal Appeal No.1004-SB of 1998 -8- **** whether the prosecutrix became unconscious or remained unconscious during the above indicated period. Though there is no legal requirement that a such like presentation must be corroborated by independent testimony, we cannot lose sight of the fact that it would be unnatural to expect that none living in the intervening 3-4 houses got the wind of the impugned occurrence inspite of the alarm raised by the prosecutrix which (alarm) could be heard by her mother-in-law Rattan Kaur from a distance of two killas. In the circumstances noticed in the fore-going paras of this judgment, it is apparent that the prosecution has not been able to prove its case beyond reasonable doubt. The appellant gets the benefit thereof. The appeal shall stand allowed. The appellant shall stand acquitted of the charge. September 19, 2008 (S. D. ANAND) Pka JUDGE