Charan Singh and Another vs The State of Haryana

Jai Singh Sekhon, J.—The Appellants were tried and convicted for an offence punishable u/s 376 Indian Penal Code by the learned Additional Sessions, Judge, Sonepat and each of them was sentenced to undergo rigorous imprisonment for four years. Feeling aggrieved against the same, they have come up in appeal. Rameshwar, father of Miss Munish prosecutrix has also filed a revision petition against the said order of the trial Court for enhancement of the sentence. Both, the appeal and the revision petition shall be disposed of by this order as these rest upon the same evidence.

In brief the facts of the prosecution case are that on February 29, 1985 Miss Munish along with her younger sister Babita about five years old had gone to her fields in the area of village Shershah for bringing Barseem fodder. At about 3.00 P.M. Charan Singh and Naresh Kumar accused arrived there and forcibly lifted her after gagging her mouth and took her to the nearby wheat fields where her hands were secured by Charan Singh accused while Naresh Kumar subjected her to forcible sexual intercourse. Thereafter Naresh Kumar accused secured her hands and gagged her mouth while Charan Singh accused committed sexual intercourse. The wailing of Babita and cries of the prosecutrix attracted their uncles Ram Dhari (PW-4. and Ram Phal witnesses. Both the accused managed to escape at the sight of the witnesses. The prosecutrix narrated the incident to both these witnesses Thereafter she was brought to her house where she narrated the occurrence to her mother Jagmati (PW 2). But as Rameshwar (PW-3) father of the prosecutrix was away to Delhi on that day, the prosecutrix and her mother did not take any action in the matter. Rameshwar (PW-3) returned to the village next morning when the prosecutrix narrated the entire incident to him. Then a panchayat was convened and ultimately, the prosecutrix along with her father and other witnesses went to Police Post Piao Maniari where ASI Phal recorded statement Exhibit PA of the prosecutrix which was concluded at 8.00 P.M. on February 21, 1985 and on its basis a formal FIR Exhibit PA/1 was got recorded at Police Station Rai at 3.00 P.M. through ASI Ratti Ram (PW-8).

ASI Ram Phal visited the spot on the next morning. He recorded the statement of Jagmati (PW-2) mother of the prosecutrix and found both the accused absconding from their houses and the village. He also prepared visual site plan Exhibit PG of the site besides recording the statements of Ram Dhari (PW-4), Ram Phal and other witnesses. The prosecutrix was got medico legally examined from Dr. Mrs. Suman Mathur (PW-7) at 11.10 A.M. on February 22, 1985. She however, found no injury on her private parts or the body. She found that vagina admitted two fingers easily and hymen torned. She took two swabs from the secretions of the vagina, and handed over the same to the police in a sealed phial, She also advised radiological examination of the prosecutrix for determination of her bone age. Dr S.K. Gosaien Radiologist (PW-5) found the bone age of the prosecutrix to be in between 16 to 17 years on the basis of x-ray skiagrams Exhibits P3 to P6 taken by him on February 25, 1985.

ASI Ram Phal arrested Charan Singh accused on March 2, 1985 while Naresh Kumar accused was arrested next day Both the accused were got medico legally examined from Dr. Mukesh Kumar (PW 5) who found them to be capable of committing sexual intercourse.

Sealed phial containing swabs of the cervix of the vagina of the prosecutrix and the clothes worn by her at the time of the occurrence were sent to the Chemical Examiner who vide his report Exhibit PK detected human semen on all these articles.

The trial Court believing the version of the prosecutrix along with corroborative evidence of her mother and father besides the medical evidence, convicted and sentenced the Appellants as referred to above. The version of simple denial and false implication of both the accused did not find favour with the trial Court. The trial Court, however, disbelieved the presence of Ram Dhari (PW-4) at the time of the occurrence. Miss Babita and Ram Phal eye-witnesses were, however, not examined by the prosecution.

I have heard Mr. Hawa Singh Hooda, Senior Advocate for the Appellants, Mr. K.S. Malik, Advocate for the State and Mr. Atul Lakhanpal Advocate for the revision-Petitioner besides perusing the records.

No doubt, there is no legal impediment in basing the conviction of an offender on the basis of statement of the prosecutrix alone provided it inspires confidence of the Court, but all the same, the judicial forums have been insisting on some corroboration of the prosecutrix''s statement, in such like cases, where she had not suffered any injury during the act of being subjected to rape or otherwise her statement has not been found wholly reliable. In the case in hand, Miss Munish prosecutrix certainly appears to be more than 16 years old at the time of the occurrence as the prosecution has not produced any birth entry in support of her age and the evidence of Dr. S.K. Gasaien Radiologist (PW-5) cleanly establishes that her bone age was within 16 to 17 years on February 25, 1985. He rightly conceded during cross-examination that there can be variation of age by two years on either side. Thus, in these circumstances, mere assertion of the prosecutrix or of her mother Jagmati (PW-2) that she is 16 years of age, is of no consequence, especially when her father Rameshwar who is an illiterate person had omitted to disclose the exact date of her birth.

The question then arises whether the prosecutrix was a willing party to this sexual orgy or that she was subjected to forcible sexual intercourse. In this regard, it is note-worthy that she admits having suffered some injuries on her back during the incident when she resisted the attempts of both the accused to subject her to sexual intercourse. But strange enough, the lady doctor Suman Mathur (PW-7) did not find any injury on her private parts or body during medico legal examination of the prosecutrix. No tenderness, swelling or blood was found in the vagina She further found that vagina admitted two fingers easily. During cross-examination, she rightly admitted that the prosecutrix will suffer tenderness and swelling of the vagina if she is subjected to rape by two young boys and that she was used to sexual intercourse. She was medico legally examined on February 22, 1985 at 11 10 A.M. and thus, there was no possibility of disappearance of the abrasions allegedly suffered by her at 3.00 P.M. on February 20.1985. According to Modi''s Medical Jurisprudence and Toxicology (Twentieth Edition) Page 206 the abrasions are red at first, but during the next three days they appear blue, bluish black, brown or livid red, and become greenish from the fifth to the sixth day, and yellow from the seventh to the twelfth day. This yellow colour slowly fades in tint till the fourteenth or fifteenth day when the skin regains its normal appearance. Thus, it can be safely said that the medical evidence does contradicts the version of the prosecutrix having been subjected to forcible sexual intercourse by the two accused.

Strange enough, Miss Babita the younger sister of the prosecutrix, about five years old, was not examined by the prosecution in order to corroborate the version of the prosecutrix. Due to her non-examination this Court is at disadvantage to conclude her presence at the spot. The trial Court rightly disbelieved the presence of Ram Dhari (PW-4), uncle of the prosecutrix as his conduct in not chasing the accused was in itself sufficient to belie his presence, apart from the other contradictions between his evidence and the prosecutrix relied upon by the trial Court.

No doubt, delay in loding the first information report in such like cases where an unmarried girl has been subjected to rape, is not of much significance but it docs provide sufficient opportunity to the prosecutrix or her relations to introduce false eve-witnesses and give twist to the real facts. In the present case also, this delay of one day in lodging the report had resulted in introducing Ram Phal and Ram Dhari, uncles of the prosecutrix as false witnesses besides giving twist to the real facts and ruling out the possibility of the prosecutrix being a consenting party to the entire episode. Under these circumstances, mere denial of the accused is of no consequence to deny them the benefit of the plea of consent especially when the prosecution evidence does not rule out the same.

For the foregoing reasons, the impugned order of conviction and sentence of the Appellants being unsustainable is hereby set aside by accepting this appeal and dismissing revision petition.