Jarnail Singh vs State of Punjab

I.S. Tiwana, J.

Jarnail Singh, appellant, aged about 46 years has been held guilty of raping Jasbir Kaur PW 2, a mother of three children, and aged about 32 years, on 4th February 1985 at about 2.00/3.00 p.m., in his wheat field. For this he has been sentenced to five years rigorous imprisonment and a fine of Rs. 1,000/.

The prosecution version that has been accepted against him by the trial court is that on the abovenoted date and time, when the prosecutrix was going to the field of Chhinderpal Singh, employer of her husband as a tractor driver, to pick up vegetable leaves (saag), she was overpowered and dragged by the accused, to his wheat field and there after gagging her mouth he committed rape. At that time he was stated to be cutting green fodder (Berseem) in his field which concededly adjoined that of Chhinderpal Singh. In spite of her hue and cry, nobody turned up as none was there near about. After the incident she left the spot crying and while on way to her house, Gurdip Singh PW4, the younger brother of her husband met her. She narrated the entire occurrence to him. On reaching the house she repeated the same in the presence of her husband Karnail Singh PW5. Later all three of them went to Police Station, Bassi Pathana, and lodged the FIR (Ex. PC) at about 5 P.M. and, thus, set the law in motion.

After recording the F.I.R. Hardev Singh A.S.I. PW. 7 inspected the place, of crime and prepared the rough site plan Ex. PG. He also took into possession the salvar of the prosecutrix Ex. P1 vide Memo Ex. PE. Since the Medical Officer pas not available on that day at Bassi Pathana, Jasbir Kaur was sent to the Government Hospital, Patiala on the next day, i.e, 5th February, 1985 where she was examined by Dr. Saroj Jain, PW8. Vide her report Ex. PO, the doctor took certain swabs from the vagina of the complainant and after sealing, the same sent these to the Chemical Examiner for analysis. Salvar Ex. P1 was also sent along to we Chemical Examiner for the same purpose. The latter reported vide his reports Exhibits PR and PQ the presence of semen. The appellant was arrested on 7th February, 1985 and at that time he was carrying his parna (a small piece of cloth generally used as a towel) Ex. P2 which was taken into possession by the Police vide Memo Ex; FIR which was duly attested by Jaswant Singh PW6. As a result of the medical examination of the appellant, Dr. Rajan Soni PW1 found that there was nothing that could suggest that he was incapable of committing'' sexual intercourse. Faqir Chand, Revenue Patwari, PW3, prepared the plan Exhibit PD of the place of occurrence on 25th March, 1985. After the completion of the investigation the appellant was sentup for trial with the result as indicated above.

The plea of the accused under section 313 Cr.P.C. was that it was a false case concocted with a view to harm and humiliate him as he had civil litigation with Chhinder Pal Singh regarding some land. He claimed to have won that litigation. He also claimed that there was a fight between him and Chhinder Pat Singh about the said land. It was also his case that some time earlier to the alleged occurrence he had slapped the son of Chhinder Pal Singh as the latter had falsely accused his two daughters of plucking flowers from their fields. It was also suggested to the prosecutrix during cross examination that litigation was also going on between Sukhdev Singh brother of Chhinder Pal Singh, and Mehar Singh, brother of the appellant. In a nutshell the whole plea was that the case had been foisted on him at the instance of Chhinder Pal Singh who managed to secure the statement of Jasbir Kaur PW2.

While accepting the prosecution version, the trial Court concluded that there was nothing to doubt the statement of Jasbir Kaur PW2 which was duly corroborated the same being nothing more than a rule of caution by the statements of Karnail Singh PW5, her husband, and Gurdip Singh PW4, her husband''s brother. The Court also ruled out the consent of the prosecutrix as was sought to be highlighted by the defence counsel.

Before me the same two arguments that the case against the appellant is nothing but a concoction, and in any case, it cannot be ruled out that it was a case of consent on the part of the prosecutrix have been repeated. I am inclined to accept this stand of the appellant for the following reasons :

(i) The courts cannot be oblivious of the well established truth that normally it is not possible for a man to have sexual intercourse with a healthy and full grown female against her will. This statement of fact is not only accepted by Dr. Rajan Soni PW1 in the light of the observations made by Mr. Modi in his well known book Modi''s Medical Jurisprudence but has even been accepted by their Lordships of the Supreme Court in Pratap Misra v. State of Orrisa, 1977 CAR 164 when they observed :

"The opinions of medical experts show that it is very difficult for any person to rape single handed a grown up and an experienced woman without meeting stiffest possible resistance for her. In the instant case, according to the evidence given by PW1 A1 entered the room and committed sexual intercourse with very great force and violence against her consent. Indeed if this was so, we should have expected the stiffest possible resistance from her resulting in injury over the penis or scrotum of the accused or abrasions over other parts of the body caused by the nails of the prosecutrix. The accused were examined by PW 9 who did not find any injury over the penis or scrotum and he does not say that he found any injury on any other part of the body. This is rather an important circumstance which negatives the allegation of rape."

In the instant case too, the two doctors namely PW1 Dr. Rajan Soni who examined the appellant, and Dr. Saroj Jain PW8 who examined the prosecutrix found no injuries to any sort on their bodies. It the instant case it has further been accepted by Dr. Rajan Soni that a woman accustomed to hard and tough work (the type of work which the prosecutrix concededly carried on) would be able to offer a great deal of resistance and deal blows on the assailant in frustrating his attempts to rape her." It is not the case of the prosecution by any chance that the appellant at the time was armed with any weapon which may have silenced the prosecutrix.

(ii) Though it is the positive stand of the prosecutrix that she was dragged to a distance of about 16 Karams (80 feet) from the passage where she was going to the wheat field where she was raped yet according to PW3 the Revenue Patwari who prepared site plan Ex. PD, the distance between the two places referred to above was 36 Karmas, i.e., 180 feet. No such drag marks were ever found by the investigator, ASI Hardev Singh PW7 who visited the spot in less than an hour of the occurrence. No mark of any injury on any part of her body has been found by Dr. Saroj Jain PW 8 who medically examined her. This is in spite of the fact that some of the bangles worn by her on her two wrists had been broken during her alleged struggle with the appellant.

(iii) The occurrence had admittedly taken place between 2.00 and 3.00 p.m., i.e, when the farmers are generally in their fields. It is accepted by Jasbir Kaur PW2 that fields of other people wherein crops were sown adjoin those of Chhinderpal Singh and Jarnail Singh, appellant, but none of those people witnessed any such occurrence.

(iv) It is also accepted by her that the appellant and his family, including his wife and three children, and his mother live in Kothas which he had constructed in his fields and the said Kothas were at a distance of about four Killas from the place of occurrence. She also admitted that as a matter of fact the families of two other brothers of the appellant, i.e., their wives and children, also lived in those Kothas. It looks highly improbable that the appellant would have chosen that spot for his alleged nefarious act, unless it was a quiet affair as there was every likelihood of any one of the members of those families, including his own, to chance upon them or at least could be attracted to the spot on hearing the hue and cry said to have been raised by the prosecutrix.

(v) It has been conceded by the prosecutrix in her crossexamination that "the accused committed sexual intercourse with her for about an hour". Though to a court question she replied that she had never worn a wrist watch and could not read it yet she accepted that "it took a lot of time and so, I say that the accused committed intercourse for about one hour. "This duration of time not only militates against the struggle theory on her part and rather indicates that it was a settled affair.

(vi) Though she accepted that the back portion of my shirt and also its sleeves from near the elbows was smeared with water and mud as the ground underneath was wet" yet neither any shirt was produced by her before the investigator nor was the same taken into possession by him.

(vi) She accepted the fact that Sukhdev Singh is the brother of Chhinderpal Singh referred to above and there was civil litigation going on between him and Mehar Singh, the brother of Jarnail Singh. This fact to my mind, lends some corroboration and probability to the defence plea, if does not prove it wholly.

For the reasons recorded above I am of the view that the case of the prosecution against the appellant is not free from doubt and he deserves to be given the benefit of the same. The appeal is, thus, allowed, and the conviction and sentence awarded him are set aside.