Mohinderpal vs The State of Haryana

Virender Singh, J.—Mohinder Pal son of Madan Lal stands convicted vide judgment dated October 6, 1988, passed by the learned Additional Sessions Judge, Karnal for an offence punishable u/s 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo RI for six months.

Santro (PW-3), the prosecutrix is the daughter of Rachna Ram (PW-13), who plies Buggi-Jhota.

Briefly, the case of the prosecution is that on 4-10-1987 at about 10-00 AM, Santro (PW-3) alongwith her aunt Sunita (PW-15) went to the field of Resham Singh, situate in village Budha Khera in order to cut the grass. When she was cutting the grass from the doll of the field or Resham Singh and Sunita was cutting grass at a distance of half killa from her, the present appellant, whose fields are adjacent to the fields of Resham Singh, came there and asked Santro to accompany him inside the field. She refused to do so. Thereafter the appellant asked her to open the string of her salwar , upon which she started raising alarm, but her mouth was gagged by the appellant by putting one hand on it. With the other hand, he pulled her and took her inside the field under a pilkhan tree. He allegedly opened the string of her salwar, threw it on the pilkhan tree, removed his pyjama and underwear and placed the same on the said tree. Santro was felled on the ground forcibly and when she was facing upwards, the appellant allegedly asked her to keep her legs upwards. Santro gave two leg blows on the chest of the appellant, but he forcibly pressed her legs underneath his knee and committed rape upon her against her wishes. When she got herself released from the clutches of the appellant, she raised an alarm, which attracted Sunita. Consequently, Sunita rushed to the house and came back with Angrez Singh (PW-12). On seeing them, the appellant ran away from the spot alongwith his pyjama and underwear. Santro allegedly picked up the brick-bats lying there and caused injuries to the appellant. She narrated the whole occurrence to Sunita and Angrez Singh. Angrez Singh picked up the salwar from the tree, handed over the same to Sunita, who helped Santro to wear it. On the same day, statement (Exhibit PC) of the prosecutrix was recorded by ASI Rameshwar Dutt (PW-14), on the basis of which formal FIR (Exhibit PC/3) was registered. Santro was got medico legally examined the same day at 10-30 PM by Dr. (Mrs.) Usha Kakkar (PW-16). Her vaginal swab and salwar were taken, public hair was also cut and taken into possession. All the other legal formalities were completed. The appellant was allegedly arrested on 7-10-1987. In pursuance of his disclosure statement (Exhibit PJ), he got recovered his kurta, pyjama and underwear, which were taken into possession. He was also medico legally examined on 7-10-1987 itself by Dr. Surinder Katyal (PW-2).

The appellant was charged u/s 376 IPC. The prosecution in support of its case produced Dr. K.B. Kanwal (PW1), Dr. Surinder Katyal (PW2), Santro, the prosecutrix (PW3), Ram Swarup Patwari (PW4), Inspector Angrez Singh (PW5), M.P. Sharma, Head Master (PW6), Rajbir Singh Constable (PW7), H.C. Surti Ram (PW8), HC Jai Dev Singh (PW9), Rattan Singh (PW10), Kanshi Ram (PW11). Angrez Singh (PW12), Racha Ram (PW13), ASI Rameshwar Dutt (PW14), Sunita (PW15) and Dr. Usha Kakkar (PW16).

The stand of the appellant was that he has been falsely implicated. The appellant examined Resham Singh (DW1) in his defence.

On a consideration of the entire evidence, the learned trial Court convicted and sentenced him as indicated above. Aggrieved by the judgment of his conviction and sentence, the appellant has preferred the present appeal.

I have heard Mr R.C. Cheema, learned Senior Advocate for the appellant, Mr Rajnish Dhanda, learned Assistant Advocate General for the State of Haryana. With their assistance, I have gone through the entire evidence on record and the other relevant document as well.

Mr. Cheema has vehemently argued that the case of the prosecution is on a very slippery footing and it falls in its entirety. According to him, no rape was committed as alleged and the appellant has been falsely implicated for certain ulterior motives. He contended that in fact, Santro used to steal the Jawar crops from the fields of the appellant and on 4-10-1987, when she was apprehended while cutting the same, she was reprimanded and slaped by the appellant, upon which she brought her father and brother there, who caused injuries to the appellant with lathi. When the appellant told them that he would report the matter to the police, he was implicated in the present case.

Mr. Cheema while developing his case, has taken me through the report of the Forensic Science Laboratory (Exhibit PN), according to which no semen was detected on the salwar, public hair or vaginal swab, whereas on the pyjama and kurta of the appellant, blood stains were found. He has also taken me through the statement of Santro (PW-3), wherein she has stated that she was dragged by the appellant upto the place of pilkhan tree; that she was dragged through the paddy fields, which were dry as having not been irrigated; that the drag marks were drawn in the field in which she was dragged; that she had received certain scratches on her buttocks, legs and back while lying on the ground; that when inter-course was committed with her, blood had come out from her vagina and had fallen on the ground; that blood stained earth was picked up from the spot and that when the appellant was doing sexual intercourse with her, Sunita-her aunt was also standing nearby. He was further taken me through the statement of Dr. (Mrs.) Usha Kakkar (PW-16), who medico legally examined Santro the same day at 10-30PM and found that there was no mark of injury over the chest, abdomen, back, thigh or vulva of the prosecutrix. Learned counsel for the appellant thus submitted that in view of this medical evidence, the story of dragging in the field and causing injuries to the prosecutrix is falsified. Further, according to this doctor, the vagina which was admitting one finger easily did not bleed nor even any sign of inflammation was noticed.

Mr. Cheema in the same breath submitted that Dr. Surinder Katyal (PW-2), who medico legally examined the appellant on 7-10-1987, noticed three injuries on the different parts of the body of the appellant including the occipital region and that the report of the Forensic Science Laboratory coupled with the medical evidence rather strengthens the defence version because the clothes (viz. pyjama and kurta) of the appellant were found blood stained. Mr. Cheema has thus contended that the prosecution has not been able to establish its charge against the appellant.

On the other hand, learned State Counsel has submitted that there is no infirmity in the evidence led by the prosecution in order to prove the offence of rape against the appellant and that the statement of the prosecutrix is corroborated by Sunita (PW-15), who happened to be with her at the time of commission of the crime. He further submitted that Santro was less than 16 years of the age on the day of occurrence has was subjected to forcible sexual intercourse and as such, the appellant has been rightly convicted by the trial Court.

Though the prosecution has examined as many as 16 witnesses, yet after scanning the material evidence, I am of the considered view that it has not been able to prove its case against the appellant. There is no evidence on record worth the name to show that the prosecutrix was subjected to forcible intercourse. The medical evidence if scanned minutely, totally washes away the statement of the prosecutrix in its entirety. Santro the prosecutrix has stated in so many words that she was dragged to a considerable distance through the fields which were dry, having not been irrigated and she was made to fall on the ground. However, no mark of injury muchless the dragging mark was found on her body. In her statement, Santro has also stated that when the sexual intercourse was committed, blood had come out of her vagina and had fallen on the ground. This is again contrary to the medical evidence on record. According to Dr. Usha Kakkar (PW-16) there was no bleeding and no sign of inner-inflamation.

The story as put forth by Santro can be doubted from another angle as well. According to her, the blood had come out of her vagina when inter course was committed by the appellant, she had gone to the extent of deposing as under:-

"At the time when the accused had committed rape upon me, the semen had come out. I hold wiped off the semen wit the help of my salwar"

If the FSL report (Exhibit PN) in this context is seen the result of analysis shows that no semen was detected on the salwar, public hair, vaginal swab or the four slides taken at the time of her medico legal examination. This basic lacuna can just not be ignored.

At the same time, statements of Angrez Singh (PW-12) and Sunita (PW-15) also do not inspire confidence because there are major contradictions in their statements. The only inference which can be drawn is that in fact Sunita was not present with the prosecutrix, as projected by the prosecution in its story nor did she go to inform Angrez Singh, who allegedly reached the spot after some time. These two witnesses have rendered themselves most unreliable.

So far as the injuries on the person of the appellant are concerned, the same cannot be brushed aside in a casual manner. The story put forward by the prosecutrix that she picked up brick bats and threw them towards the appellant do not inspire confidence in the light of the entire evidence, being appreciated deeply. The injuries on the person of the appellant rather strengthen (SIC)is stand to a great extent.

Keeping in view the basic lacunae, and discussed in details above, in the evidence of the prosecution, I am of the view that the commission of the offence of forcible sexual intercourse by the appellant is not proved at all.

Once the charge of rape itself has not been established by the prosecution, the factor regarding the age of the prosecutrix is of no significance and Mr. Cheema has also not raised any argument on this point, yet I cannot refrain myself from commenting on this point. The prosecution has not been able to lay its hands on any documentary evidence in the shape of birth certificate etc. in order to prove the age of the prosecutrix. Rachna Ram (PW-13) father of the prosecutrix has stated on oath that he had not got any entry made wit the concerned Chowkidar after the birth of Santro. Admittedly, she was an illiterate girl. She was referred for radiological examination by Dr. Usha Kakkar and According to Dr. K.B. Kanwal (PW-1), her age was opined to be 16 to 16-1/2 years as per radiological examination. Dr. Kanwal has stated that there is a margin of two years on either side. Thus, in my view, she was certainly 16 years and above on the day of alleged occurrence. The case of the prosecutrix, as projected by her in her statement, if seen in the light of her age, medical evidence and other circumstances, it would also speak volumes of false implication of the present appellant.

As a sequel of the aforesaid discussion, the prosecution has miserably failed to prove its case against the appellant beyond reasonable shadows of doubt. Resultantly, the appeal succeeds, the impugned judgment of conviction and sentence is hereby set-aside and the appellant is acquitted of the charge framed against him. His bail/surety bond furnished during the pendency of the appeal stands discharged forthwith.