Jindu vs The Sate of Punjab

C.S. Tiwana, J.—Jindu has filed the present appeal against the judgment dated February 5, 1975, passed by the Additional Sessions Judge, Gurdaspur, whereby he had been convicted u/s 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two and a half years and to the payment of a fine of Rs. 500/-. The charge against him is that on April 29, 1974, at village Saknowal he had committed rape upon Mst. Taro.

It was only on May 4, 1974 at 8 p.m. that the first information report was lodged by Mst. Taro at Police Station Sri Hargobindpur.

The version as given by Mst. Taro at the trial is that she was returning to her home after answering a call of nature at about 4 p.m. Her house is adjacent to the cattle house of the appellant. The appellant aged 18 years caught hold of Taro by both of her arms and gagged her mouth. She was then taken inside a kotha belonging to the appellant. He broke the string of her salwar and then committed sexual intercourse with her in a forcible manner. On the alarm raised by the prosecutrix her aunt Chhindo and another person named Sadhu reached there. By that time sexual intercourse had been completed and both the above-said witnesses took her to her house. The incident was narrated by Faro to her father''s elder brother and her mother. The father of the prosecutrix is said to have died about six years prior to the occurrence. The reason given for delay in lodging the first information report is that there was some attempt at compromise. Taro was medically examined by Dr. J. Chathwal P.W. 5 on May 6, 1974, and at that time she had given her age as fifteen years. The vaginal examination showed that the hymen had been torn. There were also torn edges which were slightly pinkish. The vagina admitted only one finger with difficulty and the psosecutrix complained of pain while under examination. This opinion was expressed by the doctor that she was not used to sexual intercourse and that the incident complained of may have been the first sexual intercourse committed with her.

Besides Taro P.W. 4, the prosecution examined Chhindo P.W. 7 So far as Chhindo is concerned, she corroborated the statement of the prosecutrix that on hearing the alarm she went to the kotha of the accused It was found that the door had not been bolted from inside It was through the chinks of the door that it was observed that the appellant was lying over Taro. The appellant was subsequently said to have opened the door himself.

Dr. Mrs. R. Bawa P.W. 2 through radiological examination determined the age of the prosecutrix as being above 17 years. Several epiphysis which has fused were noted at the time of the examination. There is no such evidence as to indicate that the prosecutrix could be less than 17 years of age. Even though the appellant in his examination denied having committed sexual intercourse but the stand taken on his behalf during the examination of Taro P.W. 4 is that she was a consenting party to the sexual intercourse. It was also then suggested that there had been some voluntary meetings between the appellant and the prosecutrix prior to the occurrence.

The delay in the lodging of the first information report could always be due to the fact that the prosecutrix did not want to implicate the appellant as having committed any offence. She being of a tender age, could ultimately be influenced by the other relatives in making out a case of rape against the appellant. In case the prosecutrix had raised an alarm while being caught outside the house, Chhindo and Sadhu could have come to her rescue prior to the commission of the sexual intercourse. Furthermore, if any alarm had been raised and some persons could be expected to hear the noise, the appellant may not have proceeded further with his design In the natural course he should have found out some other time for catching hold of the prosecutrix rather than at such a time in the evening when several persons could come to her rescue. It is significant to note that the appellant had not even bolted the door from inside. He was not expecting any trouble and from the non-bolting of the door a presumption about the consent of the prosecutrix can be raised. It was also admitted by Taro that she did not give any bites to the appellant and did not push him aside for preventing him from committing sexual intercourse. I thus do not agree with this finding of the trial court that any force had been used by the appellant in the commission of the sexual intercourse. The circumstances of this case are such that this kind of inference can be drawn that sexual intercourse took place with the consent of the prosecutrix. The appeal is consequently accepted and the appellant is acquitted of the offence of rape.