Dharma vs State of Haryana

I.S. Tiwana, J. (Oral)

The appellant appeals from jail where his undergoing seven years'' rigorous imprisonment for having committed rape upon Sarli, the prosecutrix (P.W.4) on 15th January, 1985 at about 9.00 A.M. within the area of village Nalwa, District Hissar. What has been found established against him by the trial Court is as follows.

On the date and time noticed above when Sarli was near Ghogar tibba and plucking bushes from a jand tree, the appellants came there and started outraging her modesty. When she protested she was made to lie on the ground and after breaking open the string of her salwar he committed rape upon her. As a result of the resistance she put forth some of her bangles were broken. The appellant also gave a bit on her right cheek. She continued crying during the process of intercourse and her alarm atracted Kailash PW 5 to the spot. But by that time, the appellant had completed the sexual intercourse. on seeing Kailash he ran away from there. Thereafter she came to the house and narrated the entire incident to her motherinlaw Shmt. Gia. It was only after the arrival of her jeth (husband''s elder brother) in the evening that she made statement Ex. PE before Inspector Shri Ram Malik. PW 7 on the basis of which formal FIR (Ex. PG) was recorded. As a result of the medical examination to which she was subjected on that very evening by Dr. Ravi Kahta (P.W. 1), L.M.O. General Hospital, Hissar the latter opined as follows :

"1. There was a pattern contusion of 3 cms. x 4 cms. on the right cheek 2 cms. lateral to the right angle of mouth, reddish in colour.

There was no mark of injury on any other part of the body, i.e., on breast, inner side of the thigh and genitalia."

On the next morning i.e., on 16th January, 1985, the Inspector took into possession five broken pieces of bangles (Ex. P2) vide memo. Ex. PH. As a result of the investigation that followed, the appellant was sent up for trial with the result as already indicated in the opening part of this pieces of bangles (Ex. P2) vide memo Ex PH. As a result of the investigation that followed, the appellant was sent up for trial with the result as already indicated in the opening part of this judgment.

Having perused the evidence on record and the impugned judgment. I am satisfied that this appeal must succeed.

It is not a matter of dispute that the prosecutrix Shmt. Sarli is a grown up married woman of 20 years of age and she suffered no injury whatsoever except the bite on her right check during the course of struggle she is alleged to have offered for the intercourse to which she was claimed to have been subjected to against her will. It has been ruled by their Lordship of the Supreme Court in Partap Misra v. State of Orissa, 1977 CAR 164 that the medical evidence which indicates that there was no injury on the person of the prosecutrix in a case of this type militates against the theory or allegation of rape. Their Lordships further expressed that the opinions of medical experts show that it is very difficult for any person to rape single handed a grownup and an experienced Aoman without meeting stiffest possible resistance from her." For expressing this opinion, their Lordships relied on the following observation made by Taylor in, "Principles and Practice of Medical Jurisprudent Vol. 11" wherein the learned author dealt with cases of rape on grown up women

"Unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of a struggle to avoid sexual contact or penetration, and may well fell uncertainly, about the real nature of an alleged assault in its absence."

In the absence of any corroborative evidence of any struggle on the part of the prosecutrix or any corresponding injury on the person of the accused appellant. the theory of consent on the part of the prosecutrix cannot possibly be ruled out. This is more so in the light of very material admission made by the prosecutrix as PW4 to the effect that before actually committing sexual intercourse with her, the appellant continued fiddling with her for about 1015 minutes. During this period why could she not make an attempt to flee. away or save herself from the clutches of the appellant is not explained by her. Her bald statement that if at even during that time she continued to raise hue and cry and nobody was attracted does not deserve any credence. Above all this, it was her case that at the time of the commission of the crime one half of the string of her salwar was left at the spot when the accused and she had left that place. No such piece of string was found by the investigator from the spot. To me it looks probable. that while the prosecutrix whose husband was employed at Bombay was in a compromising position with the appellant they were surprised if at all by Kailahs PW5 who is none other than the son of her husband''s brother and then to save her skin she came out with the story of Tape having been committed on her. The learned trial court has declined to accept this aspect of the matter or the argument of the defence counsel in this regard on the ground that the appellant had not taken any such plea in his statement u/s 313 Code of Criminal Procedure. This approach of the court below hardly commands to me. An accused has only to probabalise his defence and need not prove it or even plead it.

For the foregoing reason I allow this appeal and while setting aside the impugned judgment direct that the appellant be set at liberty forthwith.