Dev Raj vs State of Haryana

S.S. Saron, J.—This appeal has been filed by Dev Raj - appellant against the order dated 1.10.1991 passed by the Additional Sessions Judge, Yamuna Nagar at Jagadhri whereby the appellant has been convicted for the offence u/s 376, IPC, and sentenced to undergo RI for 7 years and fine of Rs.200/- and in default of making the payment of fine, he was to undergo further RI for six months.

Case FIR 30 dated 4.3.1990 under Sections 376/120B/34 IPC, was registered at Police Station, Radaur, on the statement Ex.PB of the prosecutrix (name with-held) who is the wife of Jagdish aged about 30 years. It is stated that she was residing in village Tandwal, Police Station, Mullana. She was married with Jagdish resident of Bhagumajra about four years earlier to the occurrence. She had two children i.e. a son and a daughter and had got herself sterilized. Her husband had taken land measuring one Killa on lease from Gram Panchayat of Village Bhagumajra on contract and he was cultivating the same for the last about five years. In half portion of the land wheat crop had been sown whereas in the remaining part, fodder (Barseen) was sown. It is further alleged that on 3.3.1990 at about 3.00 p.m., she had gone to her fields for getting fodder (Barseen) for the cattle and one person whose name is Dev Raj (appellant) came all of a sudden and embraced her from behind. He made her to fall on the Barseen and after breaking open the string of her ''salwar'' stripped the ''salwar'' downwards. Then he took off his Pyjama and after opening the string of his underwear forcibly raped her. She made a noise of help-help. However, the appellant had placed his hand on her mouth and forcibly raped her. After committing rape, he ran away towards village Ramgarh. Two women namely, Suresho wife of Sh.Nathu Ram and Jogindero wife of Om Parkash who heard the noise, came at the spot and also witnessed the running away of Dev Raj-appellant. Thereafter, the prosecutrix came to her house and narrated the entire incident to her husband, who gathered respectables of the village and told them of the occurrence. During night as the prosecutrix was unwell, she could not go out and in the morning, she along with her husband reached the Police Station where her statement was recorded at 4.15 a.m. On the basis of the said statement, FIR Ex.PB/1 was registered. The statement was read over to the prosecutrix, who after admitting it to be correct, thumb marked the same. Om Parkash ASI, Police Station, Radaur, PW7, investigated the case and got the prosecutrix medically examined from Dr.Kanta Dhankar (PW4). He also went along with the prosecutrix to village Bhagumajra and at the instance of the PWs, prepared the rough site plan Ex.PK, with its correct marginal notes in his hand. Thereafter, he recorded a supplementary statement of the prosecutrix and also the statement of Smt.Suresho Ex.PC. The statement of Smt.Jogindero was also recorded and offence u/s 120B IPC was added and the other accused-Dharam Singh was implicated. On the same day, the investigating officer went to the house of Baljit, father of appellant-Dev Raj and arrested him and got him medically examined from Primary Health Center, Radaur. Thereafter, on 6.3.1990, the other accused-Dharam Singh was arrested. After completing the investigation, the challan in terms of Section 173 Cr.P.C. was filed in the court of the Illaqa Magistrate. In view of the fact that the case was triable by the Court of Session, the Magistrate committed the case to the said Court. The prosecution, in order to establish its case, examined as many as seven witnesses and also tendered documents in evidence including the report of the chemical examiner, Ex.PL, and closed its evidence. The appellant, in his statement u/s 313 Cr.P.C. stated that Jagdish, husband of the prosecutrix was doing the business of sinking tube-well and hand pump. There occurred some altercation on some money transaction between him and Jagdish and on this account, Jagdish planted a false case against him. The learned Additional Sessions Judge, as already noticed, convicted and sentenced the appellant. The other accused-Dharam Singh was, however, acquitted. The order of the learned Additional Sessions Judge convicting the appellant, is assailed in this appeal.

Mr. Ajai Lamba, Advocate, learned counsel appearing for the appellant, has contended that the appellant has been falsely implicated in the case and there are material discrepancies in the statement of the prosecutrix which go to show the innocence of the appellant. The prosecutrix, it is contended, has given an inflated and an exaggerated version and despite the fact that there has been delay of 13 hours in the registration of the FIR, the prosecutrix did not name Dharam Singh as an accused in her statement, Ex.PB, on the basis of which, FIR, Ex.PB/1, was registered. It is further contended that the prosecutrix states that injuries were received by her. However, the doctor opined that she did not suffer any injury. The improved and exaggerated version given by the prosecutrix, it is contended, is sufficient to record a finding of acquittal against the appellant inasmuch as the prosecution has failed to prove its case against the appellant.

In response, Mr. J.P. Dhull, Assistant Advocate General, learned counsel appearing for the State, however, contends that the case has been proved by the prosecution of all material aspects. It is contended that Dr. Hukam Chand, PW1, who examined the appellant, observed injuries on the person of the appellant which go to show that he had committed the offence of rape on the prosecutrix and, therefore, findings of the trial court are correct and no interference is called for in this regard.

I have given my thoughtful consideration to the respective contentions of learned counsel for the parties. It may be noticed that Dr. Kanta Dhankar, Medical Officer, In charge, Maternity Hospital, Radaur (PW4) who medically examined the prosecutrix, in her statement has deposed regarding the medical examination of the prosecutrix, as follows:-

"On 4.3.1990 on the request of the Police, I had medico-legally examined (the prosecutrix) w/o Jagdish 30 years, female, Harijan, housewife, r/o village Bhago Majra, and found the following:-

Her general condition was good. She was fully conscious. BP was 110/70 ml, pulse 72 per minute.

Details of injuries

No external mark of injury was seen on any part of body.

Clothes was torn and dirty. No blood or seminal stain was there on the clothes.

Pubic hairs was not matted. Black in colour, no blood or seminal on pubic hair in naked eye-examination. No marks of injury seen on external genitalia and vagina.

Hymen was already ruptured in the form of carpunculae hymenealis.

Vagina was patulous and admitted three to four fingers."

A perusal of the above statement shows that admittedly no external mark of injury was seen on any part of body of the prosecutrix besides hymen was already ruptured. This fact is at variance with the statement of the prosecutrix, who appeared as PW2. In her deposition in Court, she has stated that there were marks of injuries on various parts of her body, i.e. near her knee joint and thighs and that there was also bleeding on her thighs.

Another aspect in the case which is to be noticed is that even though there has been delay of 13 hours in the registration of the FIR, the prosecutrix did not name Dharam Singh as an accused in the FIR and nominated him as an accused at a later point of time. Though delay in registration of the FIR is not always fatal to the case and neither prompt lodging of the FIR an unmistakable guarantee for the truthfulness of the prosecution version, however, when another accused, who has been attributed a substantial role i.e. of having caught hold of the prosecutrix and put a gandasi on her neck while the appellant raped her is a material circumstances, which would discredit the truthfulness of her statement. It is appropriate to note that the prosecutrix (PW2), has, in her deposition in the Court, stated that accused-Dev Raj (appellant) gagged her mouth with fodder (Barseen) whereas accused-Dharam Raj (sic Dharam Singh) had put a gandasi on her neck and thereafter-Dev Raj (appellant) had raped her. It is further stated that she was caught hold of by her arms by Dharam Raj (sic. Dharam Singh). This aspect of Dharam Singh putting a gandasi on her neck and accused-Dev Raj (appellant) thrusting Barseen (fodder) in her mouth, was got confronted with her statement Ex.PB where it was not so recorded. Besides, the prosecutrix has further stated that she had given the names of both the accused in her statement Ex.PB whereas in the statement, Ex.PB, the name of Dev Raj (appellant) alone is mentioned. Therefore, in the circumstances of the case, where there is a delay of 13 hours in reporting the matter to the Police, it is not understandable as to why the name of Dharam Singh who also is attributed by the prosecutrix to have played an active role in the occurrence, would not be named or nominated as an accused. This, in my view, certainly casts doubt in the case of prosecution.

It may also be noticed that Suresho (PW3) who is said to have reached the place of occurrence at the time when the prosecutrix was raising hue and cry, has resiled from her statement (Ex.PC) recorded by the Police. In her deposition, Suresho (PW3) stated that she was cutting fodder on 3.3.1990 and at that time, Jogindero was also with her. She heard voice of the prosecutrix, who was infact weeping and crying. Upon this, they rushed towards the prosecutrix and found the accused running away. He had run away from the place where the prosecutrix was cutting the fodder. They did not, however, see anyone doing anything with the prosecutrix. At that stage on the request of the learned Public Prosecutor, he was allowed to cross-examine Suresho (PW3) and during her cross-examination nothing could be elicited, which would support the case of the prosecution. In cases of rape although corroboration is not always necessary and the statement of the prosecutrix by itself is sufficient to record a finding of conviction. However, when a witness was present and had been examined and that witness does not support the case of the prosecution, then it certainly casts doubt in the mind of the court as to the truthfulness of the prosecution version. Suresho (PW3) in her cross-examination states that it was correct that her statement was recorded by the Police. She heard her statement Ex.PC which she states she never made before the Police. It is stated by her that she did not state before the Police that on hearing the alarm of the prosecutrix she had reached there and found that one of the accused had caught hold of her by her hands whereas the other accused was committing rape with her while making her lie on the ground. This was got confronted with the portion A to A of her (Suresho PW3) statement, Ex.PC where it is so recorded. The fact that the other accused in the case i.e. Dharam Singh caught hold of the prosecutrix, is not mentioned in the statement Ex.PB of the prosecutrix made before the Police. It becomes doubtful as to how this came to be recorded in the statement Ex.PC of Suresho (PW3) which she made before the Police. The other witness, Smt.Jogindero, who was with Suresho (PW3) was not examined by the prosecution and was given up as having been won over. Om Parkash ASI (PW7), the IO in the case, merely states that he recorded the supplementary statement of the prosecutrix and also recorded the statement, Ex.PC of Suresho without any addition or alteration. He also recorded the statement of Jagiro and thereafter added Section 120B, IPC. Nothing has been explained by the IO as to how Dharam Singh, the other accused was also involved in the case. The learned trial court has acquitted Dharam Singh the other accused in the case and consequently also held that it cannot be said that the prosecutrix was raped in a group of persons acting in furtherance of the common intention. In my view, the fact that Dharam Singh, the other accused, has been falsely implicated by the prosecutrix would also cast a doubt with respect to the involvement of the present appellant-Dev Raj. After taking into consideration the entire circumstances of the case, in my view, the chances of false implication of the appellant cannot be ruled out. In Pratap Misra and Others Vs. State of Orissa, , it was observed that the opinion of the doctors examined in the said case was that if three persons had forcible intercourse with a pregnant woman one after the other, the abortion which occurs would be immediate due to shock and not after some days as alleged by the prosecution. It was held that in the absence of any injuries either on the accused or the prosecutrix clearly showed that she did not put up any resistance to the alleged rape committed by the accused and that, the only irresistible inference therefrom was that she was a consenting party and that was reinforced by other circumstance in the said case. In the case in hand also the prosecutrix (PW2) has not suffered any injury in the occurrence. Therefore, it cannot be said in the circumstances of the case that she was raped.

Another aspect that requires consideration is that Suresho (PW3) during her cross-examination by learned counsel for the accused stated that on the day of the occurrence the accused were having Jhota Buggi (buffalo cart) with them, which was parked in the jungle near by the field of the prosecutrix and the accused were cutting the wood from the trees, standing in the common land. However, this aspect is denied by the prosecutrix. She stated that she does not know if there was any Jhota Buggi near the spot.

The contention of the learned counsel for the State that in the case in hand, there are injuries on the person of the appellant which show that he had committed rape may be considered. Learned State counsel in support of this, has referred to the statement of PW1, Dr. Hukam Chand who had examined the appellant on 4.3.1990 at about 6.00 p.m. on the request of the Police. He has stated that an abrasion was present on medial and lateral aspect of left ankle joint of the size of 1 x 1 cm. Besides, contusion was present on both gluteal region, which was reddish blue in colour. However, no injury was seen on the face, genitalia, hand and thigh. The other injuries that were observed are as follow:-

There was no clotting of pubic hair. No stain was found on hair on naked eye-examination. Pubic hair were kept for chemical examination.

There was no loose hair present on genitalia.

There was no scratches or laceration on penis prepuce or on glan penis.

Penis was not circumcised. No smagma was found around corona glandis.

There was no sign of gonorrheal disease.

Secondary sexual organs were developed like pubic hair, axillary hair, well developed penis normal healthy testis, facial hair.

Dr. Hukam Chand (PW 1) has stated that Ex.PA was the correct carbon copy of his MLR. The doctor also stated that injury No.3 was simple in nature. Injury No.3 in the medico-legal report Ex.PA of the appellant is as under:-

"Mud is present on left leg (below knee joint to ankle joint). An abrasion present on medial and lateral aspect of the left ankle joint 1 x 1cm contusion present on both gluteal region. Reddish blue in colour. No injury seen on face, genitalia, hand and thigh."

The doctor further opined that in his opinion, there was nothing to suggest on examination of the appellant that he was incapable of doing sexual act. Besides final opinion was to be given after chemical examination report. The doctor does not give any opinion after chemical examination report which report has been tendered in evidence as Ex.PL. The injury No.3 which the appellant suffered is simple in nature and it would not be such a circumstance from which it can be said that there were injuries on the person of the appellant which go to suggest that he had committed the offence attributed to him. This is more so for the reason that there is no injury on the face, genitalia, hand and thigh of the appellant. In the circumstances, it would be unsafe to record a finding of guilt on the basis of material as available on the record. The medical evidence on record does not support the case of the prosecution. Besides, there are glaring infirmities in the prosecution case inasmuch as the other accused-Dharam Singh has been held to be falsely implicated. Suresho PW3 who was an eye-witness to the occurrence, has resiled from her statement made before the Police and she does not support the case of the prosecution. The fact that the other accused-Dharam Singh was named as an accused at a later point of time and there is no explanation as to why he was not named initially. The chances of the appellant being also falsely implicated cannot be ruled out.

For the foregoing reasons, the appeal is allowed and the order passed by the learned trial court is set aside.