Criminal Appeal No.1012-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1012-SB of 1998 Date of decision : 22.9.2008 Budh Singh @ Budh .....Appellant Versus The State of Haryana ...Respondent CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr.Sudhir Sharma, Advocate for the appellant. Mr. K.S.Godara, Deputy Advocate Haryana for the respondent-State. S. D. ANAND, J. The appellant, Budh Singh @ Budh, is in appeal against his conviction at the hands of learned Trial Judge. The appellant was convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for a period of seven years on a charge that he had raped the prosecutrix on 15.4.1997. On that date, at about 8.30 A.M., the prosecutrix was returning from the fields after having answered the call of nature. She was accosted by the appellant who picked her up, took her to his sugarcane fields and raped her over there. She was disabled from raising a raula because the appellant had gagged her mouth. The prosecution examined PW-1 Dr. (Mrs.) P.L.Bansal, PW-2 Dr. S.K.Gosain, PW-3 Kadam Singh, PW-4 Ved Singh Patwari, PW-5 Constable Surinder Kumar, PW-6 Dr. Sita Ram, PW- 7 Sunil Kumari, PW-8 Hari Ram, PW-9 Manti Devi and PW-10 Inder Criminal Appeal No.1012-SB of 1998 -2- **** Singh at the trial. PW-1 Dr. (Mrs.) P.L.Bansal had medico-legally examined the prosecutrix on 16.4.1997 at 12.30 A.M. and observed that “possibility of rape cannot be ruled out”. She found that there was no external mark of injury on the private parts or any other part of the body of the prosecutrix. She further found that vagina admitted one finger easily; that there was fresh oozing of blood from the vagina; that hymen was ruptured; that labia minor and majora were congested and no external mark was seen on the Libya. Swabs were obtained from the vagina. Sample specimen of public hair was obtained. Thereafter, swabs and also pubic hair were put in a sealed parcel and were forwarded to the Chemical Examiner, along with another parcel containing the clothes of the prosecutrix, for analysis. PW-2 Dr. S.K.Gosain had conducted the radiological examination of the prosecutrix and opined, vide report Ex. PD, that her age was between 15 to 16 years. In reaching that conclusion, Dr. Gosain had taken X-ray of of both knees, both ankle, X-ray pelvis, both elbow and both wrist joint of the prosecutrix. In that context, he was also governed by the data obtained from Modi's text book of Medical Jurisprudence and Toxicology. PW-3 Kadam Singh, posted as second Head Master, Government High School, Stawali, Distt. Sonepat on 12.5.1997 had issued a certificate (Ex. PE) in respect of date of birth of the prosecutrix. That certification was issued on the basis of admission Criminal Appeal No.1012-SB of 1998 -3- **** and withdrawal record available in the school. PW-4 Ved Singh, Patwari Halqa Chatia Deva on 10.5.1997, had prepared scaled site plan Ex. PG on the pointing of the prosecutrix. PW-5 Constable Surinder Kumar obtained one sealed parcel (containing underwear of the appellant and specimen seal of the Medical Officer) which he handed over to the Investigating Officer SI/SHO Inder Singh. He also attested the recovery memo Ex. PL vide which that sealed parcel had been taken into possession by Inder Singh afore-mentioned. PW-6 Dr. Sita Ram had medico legally examined appellant Budh Singh and observed as under:- “1. The patient was conscious, well oriented to time, place and person; co-operative; pulse was 72 per minute; B.P. Was 120/84 MMhg; pupils bilateral, and were normal in size and were normally reacting. The patient was moving all the four limbs. There was no external mark of injury. 2. Axillary hair, facial hair were normal. The size of penis was normal; pubic hairs were present; scrotal reflex was normal; speech of adult type.” Dr. Sita Ram further opined that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. Criminal Appeal No.1012-SB of 1998 -4- **** PW-7 Sunil Kumari is the prosecutrix; while PW-8 Hari Ram and PW-9 Manti Devi are her parents. PW-10 Inspector Inspector Inder Singh had investigated this case. Satish Kumar, Parvati and Ramesh Chander were given up as unnecessary. Affidavit Ex. PS of Constable Surinder Kumar was tendered into evidence. The Court was informed by the learned counsel representing the appellant that the deponent of the aforementioned affidavit was not to be subjected to any cross- examination. The appellant raised a plea of innocence and averred as under in the course of statement under Section 313 Cr.P.C.:- “I am innocent. I have been implicated in this case falsely at the instance of Balwant etc. of my village. The parents of the prosecutrix are the men of Balwant Singh etc. and there is a party faction between Balwant Singh and our family. A criminal case U/s 324 I.P.C. is also pending against the nephews of Balwant Singh, namely, Nafe Singh etc. which was registered on the instance of my brother Anand Singh.” DW-1 Satbir Singh, chowkidar of vilage Chatia Deva, was examined in defence evidence. Learned Trial Court accepted the prosecution presentation, declined appellant plea of innocence and proceeded to Criminal Appeal No.1012-SB of 1998 -5- **** indict the appellant. Learned counsel for the appellant, at the very outset, argued that the prosecution had not been able to at all prove that the impugned act had, at all, taken place. The further plea put forward by the learned counsel, was that there are circumstances aplenty on the file to prove that the prosecutrix was a consenting party to the impugned act. In order to draw sustenance for the view advocated by him, the learned counsel invited attention to the evidence of the Medical Officer PW-1 Dr.(Mrs.) P.L.Bansal who testified that no injury was found on the person of the prosecutrix. In support of that averment, the learned counsel also relied upon the fact that the FSL report did not find any semen on the Salwar, shirt, Baniyan, Chuni, swab and pubic hairs of the prosecutrix. ("Semen could not be detected on exhibit- 1a (Salwar) exhibit-1b (lady's shirt), exhibit-1c (Banian), exhibit-1d (Chuni), exhibit-2 (swab), exhibit-3 (swab) exhibit-4 (pubic hairs) and exhibit-5 (Kachha).” In the context of the alternative plea that it was all a consensual affair, the learned counsel invited attention of this Court to statement of PW-1 Dr. (Mrs.) P.L. Bansal to the effect that “ there was no external mark of injury on the private part or any other part of the body.” Cognizant of the legal proposition that the plea of it all having been a consensual affair only if the prosecutrix was proved to be of the age 16 years, the learned counsel invited the attention of the Criminal Appeal No.1012-SB of 1998 -6- **** court to Ex. PE wherein the date of birth of the prosecutrix has been recorded as 5.8.1980. The impugned occurrence had taken place on 15.4.1997. This document, which was relied upon by the prosecution itself to prove that the prosecutrix was of the age where she could not give consent to her ravishment, would prove that she was aged more than 16 years on the date of impugned crime. I find force in the plea on behalf of the appellant. Ex. PE is a certification issued by PW-3 Kadam Singh on the basis school admission/withdrawal record and it is a document relied upon by the prosecution itself to prove the age of the prosecutrix. It is adequate enough to prove that the prosecutrix was aged more than 16 years on the date of impugned crime. Insofar as the question of consent is concerned, the finding has to be recorded in favour of the appellant. The Medical Officer did not find any injury on the person of the prosecutrix. The prosecutrix had, on her part, categorically alleged that “the accused threw me on the ground i.e. in the sugarcane field. Iaid down on the ground by my back side.” In the normal course of things, a female who is raped in a sugarcane field where crops are standing, would be expected to have atleast visible marks of abrasions/bruises on her back side which would have come into the contact with the crop itself in the course of impugned act. She made an abortive attempt to wriggle out of the predicament of having to explain the above phenomenon by averring that” the place where the accused took me in the sugarcane field, was not dense but the sugarcane crop was scanty at that place.” It is also in her statement Criminal Appeal No.1012-SB of 1998 -7- **** that she “was giving beatings to the accused with the help of both of my hands and was trying to free myself.” If the prosecutrix had actually done so, the person of the accused would have indicated atleast some marks of injuries. In that context , it may be noticed that PW-6 Dr. Sita Ram, who medico-legally examined appellant on 17.4.1997, clearly averred that "there was no external mark of injury." Apart therefrom, the statement made by the prosecutrix that the appellant “had been pressing my mouth with the help of my Dupatta. He had also been giving fists and slaps on my face as well as on my notice” is also not borne out by the testimony of PW-1 Dr.(Mrs.) P.L.Bansal, who had medico-legally examined the prosecutrix on 16.4.1997 at 12.30 P.M. The prosecution plea is also doubtful because Mst. Parvati, to whom first presentation was made by the prosecutrix, was not examined at the trial. It may be indicated here that it was the own version of the prosecutrix that her aunt Mst. Parvati was first who reached the spot and she narrated the entire occurrence to her. Her own mother is averred to have come to the spot little latter, though the prosecutrix narrated the entire occurrence to her as well. There is nothing on the file to indicate how exactly Mst. Parvati, who was otherwise withheld at the trial, happened to arrive at the scene. There is no averment that she was living in the vicinity of the site of the impugned occurrence. It was for the prosecution to prove the circumstances under which Mst. Parvati happened to arrive at the site of impugned occurrence at 8.30 A.M. which can safely was said Criminal Appeal No.1012-SB of 1998 -8- **** to be early hours of the day when a domesticated female in the rural India would be expected to be busy in ensuring the despatch of well fed male members of the family to earn for the family. The investigating agency also does not appear to have conducted itself with the expected competence. The Investigating Officer averred that the appellant was produced before him by latter's father on 16.4.1997. He conceded that “the accused was got medico-legally examined the following day. Since I was busy in other work, therefore, I did not get the medical examination of the accused done, the same day i.e. the day of his arrest.” There can be no dispute with the proposition that immediate medico-legal examination of the appellant, who was accused of having deflowered the prosecutrix against her will, could have yielded meaningful evidence in the context of the crime with which he was charged. The investigating agency did not conduct itself with enviable despatch and also competence in having delayed the medico-legal examination of the appellant. That the appellant succeeds on other counts is an altogether different facet. In the context of the facts noticed in the fore-going paras of the judgment, it will equally useful to notice the defence plea that he had been falsely implicated on account of party faction in the village. PW-8 Hari Ram denied, as incorrect, a suggestion that there are two faction in the village and that Lakhi (grand father of the appellant) belongs to one faction and Balwant etc. are relate-able to the other faction. However, he conceded a suggestion that “both Criminal Appeal No.1012-SB of 1998 -9- **** the above mentioned parties were challaned U/s 107/151 Cr.P.C. The challan U/s 107/151 Cr.P.C. was registered after the incident in question.” In the concluding sentence of the cross-examination, he conceded, as correct a suggestion that sons of Balwant afore- mentioned were present outside the Court on the date he was examined at the trial. (“It is correct that Balwant's cons are present outside the court. But I did not bring them along.”). Without at all suggesting that the appellant had been able to conclusively prove his false implication due to party faction, the possibility of his averment being correct cannot be ruled out in the face of availability of sons of Balwant outside the Court on the relevant date. His attempt to wriggle out of his alleged relate-ability to them by stating that he had not brought them along (“I did not bring them along”) is not readily acceptable. The following inference can, thus, be safely culled out from the evidence available on the file:- 1. The prosecutrix was aged more than 16 years on the date of commission of impugned crime. This fact is important in the context of the finding noticed item no.3 hereunder; 2. The FSL report falsifies the prosecution presentation qua the factum of impugned rape itself; 3. Even if it is presumed that the impugned act did take place, there is evidence to prove that the prosecutrix was a consenting party to the impugned act. Criminal Appeal No.1012-SB of 1998 -10- **** In the light of fore-going discussion, the appeal shall stand allowed. The impugned finding of conviction shall stand set aside. The appellant shall stand acquitted of the charge. September 22, 2008 (S. D. ANAND) Pka JUDGE