Jagtar Singh vs State of Punjab

V.K. Bali, J. (Oral)

Appellant Jagtar Singh has been convicted under section 376 of the Indian Penal Code and sentenced to 7 years R.I. and to pay a fine of Rs. 5,000/ and in default of payment of fine to further undergo R.I. for 11/2 years. He has also been convicted under section 450 of the Indian Penal Code and sentenced to undergo R.I. for three years and both the sentences were ordered to run concurrently by judgment recorded in that behalf by Shri Gian Singh, Addl. Sessions Judge, Gurdaspur, on 24th of January 1987.

In brief, the prosecution version was that Kumari Luxmi Devi daughter of Pritam Chand, aged about 14 years was present alone in the house on 8th of August, 1986 at about 10.00 A.M. when the appellant herein came there, forcibly took her in his lap, threw her on the ground, stopped her voice by keeping his hand on her mouth and started doing sexual intercourse against her wish after opening the string of her salwar. In the meanwhile, her father Pritam Chand who had gone out in order to fetch fodder came and on seeing him the accused ran away though Pritam Chand tried to overpower him. At that time the prosecutrix was weeping and she described the whole incident to him. This incident was reported to the police on the same day at 5.30 P.M. through the statement of the prosecutrix. The formal F.I.R. came to be recorded at 6.05 P.M. on 8th of August, 1986. After resultant trial the appellant was convicted and sentenced in the manner fully indicated above.

Mr. Tej Pal Singh, learned counsel in support of the appeal preferred by Jagtar Singh has vehemently contended that the prosecutrix was certainly more than 16 years of age as is the finding recorded by the learned trial Judge and it was a case of consent and no intercourse was committed against her wishes and consent. In support of this contention the learned counsel has referred to the statement of the prosecutrix and the medical evidence.

Dr. Paramjit Kaur who was examined as PW1 stated that on 9th of August, 1986 at about 9.45 A.M. she had medically examined prosecutrix Luxmi Devi. On physical examination she was found to be moderately built, moderately nourished, and axillary and pubic hair were present. Breast moderately developed. Nipples were also developed. There was no mark of violence on face, neck, breast, thigh or buttock. On vaginal examination, pubic hair were present, external genitalia well developed. No swelling or bruishe was present. No stains were present on the thighs. On internal examination, hymen was found to be intact. No fresh lacerations were present on hymen and vagina. There was no tenderness. Vagina admitted two fingers easily. In her crossexamination she clearly stated that the prosecutrix was used to sexual intercourse because her vagina admitted two fingers easily. In case the prosecutrix was in a position to resist sexual intercourse there would be injuries on her person. Luxmi Devi prosecutrix was examined as P.W. 4. She stated that she had resisted the act of the accused when he was opening the string of her salwar but he was forceful enough. She further stated that in that process she suffered scratches on her back. She also stated she had caused scratches on the mouth of the accused with her nails. She also stated that during sexual intercourse there was no bleeding from private part and she suffered no injury on or around her vagina. She also stated that she and her father raised alarm, when the accused had run away.

It is true that the learned Additional Sessions Judge has returned a finding that the prosecutrix was more than 16 years of age at the time when she was allegedly raped. From the medical evidence, reference of which has been given above and the age of the prosecutrix, this Court is of the considered view that it was perhaps a case of consent. In any case, doubt creeps in the mind of the Court with regard to the complicity of the appellant in committing intercourse with the prosecutrix against her wish and consent. The occurrence is stated to be of 1000 A.M. when the prosecutrix was perhaps alone in the house. It is, however, made out from the evidence that number of houses are located nearby the house of the prosecutrix as she stated before the Court that when she raised an alarm alongwith her father, number of neighbours had collected. That apart, if the appellant was having intercourse with the prosecutrix against her wishes and consent, it was quite likely that some injuries on some part of the body of either the appellant or the prosecutrix might have been there. In fact, the prosecutrix with a view to make out a case of rape did state that she had caused scratches with her nails on the face of the accused and in that process she had also herself suffered injuries. The doctor, however, found no injury either on the person of the appellant or of the prosecutrix. The learned Additional Sessions Judge has tried to explain by saying that the prosecutrix had stated that the appellant was powerful enough but that explanation would have been correct if the prosecutrix would have stated that she could not resist at all the forceful advances of the appellant being too weak to do so as against the physical force of the appellant and therefore, no injury was caused to the appellant or to her. But that is not the case here. She did state that she caused injuries to the appellant and herself also suffered injuries. However, no injury was found on her person or that of the accused as mentioned above. It is clearly made out from the statement of Dr. Paramjit Kaur PW1 that the prosecutrix was used to intercourse as her vagina easily admitted two fingers. From the totality of the facts and circumstances of this case, it thus, appears to the Court that it was not a case where the appellant had committed intercourse with the prosecutrix against her wish and consent. In any case, doubt creeps in the mind of the Court with regard to the complicity to the appellant in the commission of the crime alleged against him. Thus, giving him the benefit of doubt, I acquit him. Consequently, the order of conviction and sentence recorded by the learned Additional Sessions Judge is set aside. The appellant is stated to be on bail. His bail bonds shall stand cancelled.