Jitender alias Chintu and Another vs State of Haryana

Jitendra Chauhan, J.—Jitender alias Chintu son of Brij Mohan and Chetan Parkash have preferred this appeal against the judgment of

conviction and sentenced dated 20.10.2000/21.10.2000. The said Appellants were convicted under Secotion 354 of the Indian Penal Code and

sentenced to undergo Rigor-ous Imprisonment for a period of one year each and to pay a fine of Rs. 1000/- each u/s 354 IPC or in default of

payment of fine to further undergo Rigorous Imprisonment for a period of one month.

In criminal appeal No. 1053-SB-2000 Manoj Kumar assailed the judgment of his conviction u/s 376 of the Indian Penal Code and sentence of

seven years Rigorous Imprisonment and pay a fine of Rs. 5000/- for the commission of offence punishable u/s 376 IPC or in default of payment of

fine to further undergo Simple Imprisonment for three months.

It is proposed to disposed of both these appeals by way of single judgment as both arise out of the same judgment dated

20.10.2000/21.10.2000 passed by the learned Additional Sessions Judge, Jagadhri.

Brief facts taken out from the judgment that Bir Singh, complainant, PW-4, father of the prosecutrix made a statement Ex.PB before Sub-

Inspector, Dhanna Ram, PW-11 on 3.03.2000 at 6:00 p.m. at Bus Stand, Aurangabad. Wherein he has stated that he does labour work. On that

day at about 5:00 p.m. when he came back to his house, his wife Anguri Devi and his daughter Rubi Devi disclosed him that when they had gone

to bring fodder front the fields at about 3:00 p.m. The prosecutrix was cutting the fooder then Manoj Kumar and Chintu sons of Brij Mohan and

Jitender son of Mangat Ram started teasing the prosecutrix. All the three boys forcibly caught the prosecutrix and tried to push her towards

sugarcane fields. Her daughter made a noise on which the labourer from the brick-killn were attracted at the spot including Jagtar Singh, PW-3,

they rescued prosecutrix from the accused and all the three accused ran away from the spot Manoj, Chintu and Jitender teased the prosecutrix

with bad intention.

After recording statement Ex.PB, Sub-Inspector, Dhanna Ram, PW-11 sent this statement to the Police Station for registration of an FIR upon

which ASI, Ramesh Chander, PW-7, recorded the FIR Ex.PG in the Police Station. The special report reached the Judicial Magistrate, Jagadhri

on 4.03.2000 at 7:00 p.m.

The medical examination of the prosecutrix was conducted by Dr. Neenu Kalra, PW-9 on 4.03.2000 at 3:15 p.m.

Dr. Neehu Kalra, PW-9 on medical examination opined that possibility of inter course with the prosecutrix cannot be ruled out. The offence

was converted to Section 376 IPC. Sub-Inspector, Dhanna Ram, PW-11 completed the investigation and submitted report u/s 173 Code of

Criminal Procedure against the accused.

The learned Judicial, 1st Class committed the case to the Court of Session vide order dated 12.06.2000 for trial. The learned Additional

Sessions Judge, Jagadhri framed charge against all the three accused u/s 356 IPC read with Section 34 IPC. A charge u/s 376 IPC was framed

against Manoj Kumar accused.

To prove its case the prosecution examined 12 witnesses. PW-1, H.C. Rishipal and PW-6, Constable, Surender Kumar tendered their

respective affidavits Ex.PA and Ex.PF respectively. ASI, Ramesh Chander, PW-7, proved the recording of FIR. Raj Kumar, Patwari, PW-8

proved the scaled plan Ex.PH, which he prepared at police request Ex.PH/1 Constable Raghubir Singh, PW-10, as a witness to recovery memo

PJ and Ex.PK. Head Constable Subhash Chand, PW-12 proved the sending of special report to the Judicial Magistrate.

The prosecutrix while appearing as PW-2 deposed that accused Manoj took her to the sugar cane field forcibly and committed rape upon her.

The other two accused remained standing outside the field. After rescuing herself from the accused Manoj, she came out of the sugar cane field

and remaining accused Chinu and Chetan caught her. She raised alaram and on hearing alaram Jagtar, Mangal and Mukesh came there and

rescued her. The accused ran away from the spot. She came back to her house and narrated the occurrence to her mother. At that time out of fear

she did not disclose the fact of rape to her mother, but in the night she told her mother that accused Manoj had committed rape upon her. Her

statement is corroborated by Jagtar Singh, PW-3, who rescued the prosecutrix from the clutches of the accused. Bir Singh father of the

prosecutrix, PW-4, also supported the case of the prosecution.

Learned Counsel for the Appellants vehemently asserted that the prosecution has deliberately withheld and supressed the material evidence

from the Court. He further submitted that Chowkidar register bahi entry and mother of the prosecutrix has been withheld by the prosecution for

reasons best known it.

Learned Counsel for the Appellants argued that the investigation is tainted as no ossification test of the prosecutrix got done, which could

prove the approximate age of the proseutrix. It would be unsafe to determine the age from oral evidence. It is further submitted that the presence

of Jagtar Singh,

PW-3, is unnatural and improbable.

Learned Counsel for the Appellants further argued that the prosecutrix was a consenting party, and the prosecutrix was tutored by her parents

to aggravate the offence. Learned Counsel for the ap-lts further submitted that the prosecution has failed to prove its case against the Appellants.

On the other hand, the learned State counsel submits that the prosecution has fully proved its case. The prosecutrix has supported the case

which is corroborated by Jagtar Singh, PW-3 and medical evidence.

I have heard the learned Counsel for the parties and scanned the evidence carefully with their assistance.

First of all, it is worthwhile to mention here that there is serious flaw in the prosecution case. The police has failed to collect evidence during

investigation regarding the age of the prosecutrix. The learned trial Court relied upon the oral statement of Bir Singh, PW-4, father of the

prosecutrix wherein he has given the age of her daughter as 12-13 years. The prosecution has failed to produce any birth entry from the

Chowkidar register or school certificate of the prosecutrix. As per Modi''s Medical Jurisprudence, the test pertaining to ossification of bones is

helpful for determining age, but the prosecution was not. subjected to the ossification test to determine the approximate age of the prosecutrix. Bir

Singh, PW-4, in his cross-examination stated that he got recorded the date of birth of the prosecutrix in the Chowkidar register. But this

Chowkidar was neither examined nor any birth entry was produced. Another material flaw in the prosecution case is that the prosecution has

withheld the mother of the prosecutrix which was the best witness to depose about the age of the prosecutrix. There is no corroboration to the

statement of Bir Singh, PW-4, father by way of producing the mother of the prosecutrix. So the adverse inference is drawn that the prosecution is

withholding the age of the prosecutrix from the Court.

The prosecutrix while appearing as PW-2 stated in the cross examination that due to sugarcane crops she sustained abrasions of her back and

had disclosed about those abrasions to the Medical Officer at the time of her medico-legal examination. But, Dr. Neeu Kalra, while appearing as

PW-9 stated that there was no bite mark, scratch mark, bruise or abrasion on any part of the body of the prosecutrix except a small nail mark on

the dorsom of nose at base. Thus, the statement of the prosecutrix of her having sustained abrasions on her back has not been proved by the

prosecution. Further it is also submitted here that it is highly improbable and unbelievable that if the prosecutrix was raped by the Appellant for

about 20 minutes in the sugarcane field against her wishes, still she did not suffer any injury on her person.

Dr. Neenu Kalra, PW-9,hasstatedthatitisright to suggest that the prosecutrix was habitual to sexual intercourse. Thus it is clear from the

statement of the Doctor that the age of the prosecutrix as has been given by the father of the prosecutrix is not correct and rather the prosecutrix is

more man 16 years of age.

As per the FSL report (Ex.PC), human semen was detected on the salwar (Ex.la) and ladies shirt (Ex.lb) of the prosecutrix. However, semen

could not be detected on the swab (Ex.P2) and public hairs (Ex.P3) of the prosecutrix. The semen detected on the underwear (Ex.P4) of the

Appellant Manoj Kumar. As per the serological analysis result of semen (Ex.PC/1) was of Group B'', whereas the group of human Semen stains

on the salwar of the prosecutrix was ""Inconclusive"". Thus, it is highly doubtful that rape was committed upon the prosecutrix. The statement of

prosecutrix, (PW-2), cannot be relied upon as she is a tutored witness or she has exaggerated the version. Intially the FIR was lodged for offence

u/s 354/34 IPC on 3.03.2000. Later on the supplementary statement was given by the complainant regarding the offence of rape having been

committed upon the prosecutrix, whereupon the offence u/s 376 IPC was added on 4.03.2000. Thus, this material improvement in the statement

of the complaint further creates a considerable doubt on the genuineness Of the prosecution story.

The presence of Jagtar Singh, PW-3, is unnatural. Jagtar Singh, PW-3 stated that they heard the cries of a child for about 10-15 minutes and

thereafter, they heard noise ""bachao bachao"" which continued for about 10-15 mintues. The prosecutrix also stated in her cross-examination that

she was kept in the sugarcane field approximately for 20 minutes. The brick Kiln is about 20 yards away from the fodder fields. On raising alarm

three persons namely Jagtar Singh, PW-3, Mangla and Mukesh came there and rescued her. The said Jagtar Singh was examined as PW-3,

whereas other two persons namely Mangla and Mukesh were withheld by the prosecution. The said Mangla and Mukesh were given up by the

prosecution on 12.09.2002. So adverse inference has to be drawn against the prosecution.

The cumulative effect of all the above circumstances, is that the prosecution has failed to prove the case beyond reasonable doubt, so the

benefit of doubt is to be given to the accused-Appellants.

Resultantly, criminal appeal No. 1120-SB of 2000 and criminal appeal No. 1053-SB of 2000 we allowed, a conviction and sentence of the

Appellants in both the appeals, are set aside and they are acquitted of all the charges framed against them.