Deep Chand vs State of Haryana

K.P.S. Sandhu, J.

Deep Chand appellant, aged about 20 years, has by way of this appeal challenged the order of the Additional Sessions Judge, Sonepat, dated November 23, 1983 by which he has convicted the appellant under Section 376, Indian Penal Code and sentenced him to five years, rigorous imprisonment.

The prosecutrix, Phool Kumari (P.W. 9) aged about 25 years is married to Kishan Chand, a school teacher posted at Deepalpur. On September 2, 1982 at about 12 noon, Smt. Phool Kumari was alone in her house as her husband and two elder children had gone to school and the younger child was with her motherinlaw, who was living in a separate house. The appellant came to the house of the prosecutrix for spraying DDT. He caught hold of the prosecutrix, put her on the cot and committed rape on her. The alarm raised by the prosecutrix attracted Smt. Santosh Devi (P.W. 8)Sisterinlaw of the prosecutrix and Jai Narain (P.W. 7). They caught hold of the appellant, gave him some beating, Kishan Chand, husband of the prosecutrix came back to the house at 4 P.M. He was told about the occurrence. The prosecutrix made statement before the police which is exhibit PJ, on the basis of which formal first information report PJ/1 was recorded at Police Station Rai on September 2, 1982 at about 6.10 P.M. SubInspector Tilak Raj visited the spot on September 2, 1982 and prepared site plan exhibit PQ. He also took into possession petticoat exhibit P/1 of the prosecutrix. The appellant was arrested and his underwear exhibit P/2 was taken into possession. Both the prosecutrix and the appellant were sent up for medical examination to Civil Hospital, Sonepat where Dr. (Mrs.) Asha Chawla (P.W. 1) medically examined Phool Kumari and the following is her report :

"Hymen was absent, Vagina was quite taxed, Vagina admitted two fingers quite easily and was quite loose. No signs of fresh tear of hymen seen at all, Pelvic hair not matted. There was no redness of the mucous membranes present.There was not much bleeding per vagina, but the finger was just stained with blood. Two vaginal swabs were taken and handed over to the police in a sealed bottle having one seal each."

Dr. Shashi Paruthi (P.W. 2) medically examined the appellant and found the following injuries on his person :

"(1) A contusion wound 3X1.5 cm. right outer canthus of eye.

(2) Abrasion 4X1 cm. left out of anthus of eye.

(3) Abrasion 1 X .5 cm. on the right upper arm outer aspect of its middle.

(4) Abrasion 1 X.5 cm. left upper arm middle of its outer aspect.

(5) Reddish contusion right scapular region.

(6) Multiple reddish contusion left scapular region 8X2; 7X2; 3X1.5 cms.

(7) Reddish contusion on the back of lower chest 20X2 cms.

(8) Reddish contusion 10 X 2 cms back of right abdomen lumber region.

(9) Reddish contusion 5X1 cms, outer aspect of Left fore arm with defused swelling around it 8X4 cms.

These injuries were declared simple in nature and were within 24 hours duration, caused by blunt weapon."

Vaginal swabs of the prosecutrix, petticoat exhibit P/1 and underwear exhibit P/2 were sent for Chemical examination. According to the report of the Chemical Examiner, exhibit PM, the petticoat exhibit P/1 and underwear exhibit P/2 were found to be stained with semen and blood. After investigation, the appellant was sent up for trial.

Although, in his examination under Section 313, Criminal Procedure Code, 1973, the appellant denied the prosecution allegations and came up with the following version :

"I am innocent. On that day I along with Raghbir had gone to house of Phul Kumari PW for spraying DDT when Phul Kumari along with her small daughter was in the house. After spraying DDT we came out of the house. Some boys were playing cards in the neighbouring house. Jai Narain came in the street and he abused me telling that we did not spray the medicines properly. When I went away to ease myself, Jai Narain contacted the motherinlaw of Phul Kumari P.W. and levelled false allegations against me that I had committed the theft of a golden Kanthi. I was caught by Jai Narain and others on suspicion of the said theft and they gave beatings. I told them that they should take solemn oath in the mandir that I had committed theft of the kanthi upon which they left me. However, the villagers made me sit in the chaupal whereas other employees of my department came there and they themselves went to the police station to report the matter. Police came to the chaupal and there Jai Narain P.W. levelled allegations that I had committed rape on Smt. Phul Kumari upon which husband of Phul Kumari took the thanedar to her house and thereafter I was involved in the case."

The appellant led no evidence in defence, but during the crossexamination, a suggestion was put to the prosecutrix that the sexual intercourse was committed with her consent.

The prosecution, apart from Dr. (Mrs.) Asha Chawla (P.W. 1) and Dr. Shashi Pruthi (P.W.2), examined Nand Lal, who prepared site plan exhibit P.B. Sukhdev Singh A.S.I. (P.W. 4) got the prosecutrix and the appellant medically examined. He also took into possession the bottles containing swabs which he handed over to S.I. Tilak Raj (P.W. 10). Shiv Kumar Sharma, (P.W. 5) is a witness to the taking into possession of petticoat exhibit P/1. Jeet Ram A.S.I. (P.W. 6) recorded the formal first information report exhibit PJ/1, Jai Narain (P.W. 7) reached the house of the prosecutrix along with Santosh Devi after hearing the alram raised by the prosecutrix. He also apprehended the appellant on the spot. Smt. Santosh Devi (P.W. 8) reached the house of the appellant immediately along with Jai Narain. (P.W. 9) is the prosecutrix herself. S.I. Tilak Raj (P.W. 10) investigated the case and also finally submitted report under Section 173, Code of Criminal Procedure, 1973.

Since the prosecutrix was a married lady and mother of three children, so on injury on her private part could be found. As such the medical examination of the prosecutrix is not of much help in coming to a conclusion as to whether she was subjected to rape or not. She is grownup lady of about more than 25 years of age while the appellant is just 20 years of age. The occurrence is alleged to have taken place at about 1 P.M. in the houses, which is surrounded by the number of residential houses. It is in evidence that doors etc. were never bolted by the appellant and no serious marks of violence on the person of the prosecutrix were found which could suggest that she was subjected to sexual intercourse inspite of resistance. Her clothe were intact. This circumstance is also suggestive of the fact that in all probability she was a consenting party. Otherwise, there is no allegation that the appellant gagged the mouth of the prosecutrix. A slight noise on her part could attract number of people and the appellant could not have been able to commit sexual intercourse with her. In her statement, in crossexamination, she has stated that she and the appellant laid on a cot for 5/10 minutes and during that interval he committed intercourse with her and that later on her devrani Smt. Santosh Devi raised an alarm that there was thief in the house. It appears from the circumstances that the appellant and the prosecutrix were seen in the compromising position by Smt. Santosh Devi P.W. and the appellant was given beating by Jai Narain P.W. and other people and later on after consulting the husband of the prosecutrix, a case under Section 376, Indian Penal Code was registered against the appellant. The delay in lodging the report is also fatal to the prosecutrix case. It shows that the prosecutrix and her relations had sufficient time to ponder over and make out a false story.

For the reasons stated above, it cannot be said that the prosecution has proved its case against the appellant beyond any shadow of doubt. Consequently giving the benefit of doubt, I acquit him.