Om Prakash vs State of Haryana

Appellant Omprakash was tried and convicted by the learned Sessions Judge, Kurukshetra for the offence u/s 376 of the Indian Penal Code in Sessions Case No. 50 of 1995 and was sentenced to undergo rigorous imprisonment for a period of seven years, besides a fine of Rs. 250/- and in default of payment of fine he was further ordered to undergo R.I. for one month. Being aggrieved by the said judgment of conviction and sentence, the appellant has filed this appeal.

The alleged incident took place on 22-10-1995 at 6.00 p.m. at village Gangheri. The FIR was lodged on the same day by the prosecutrix. In the trial the following witnesses were examined.

PW 1 Dr. P. K. Gupta, PW 2 Mukesh Kumar, draftsman, PW 3 MHC Nahar Singh, PW 4 Constable Jasmer Singh, PW 5 HC Teg Singh, PW 6 Bimla Devi, Prosecutrix, PW 7 Bhima Ram, PW 8 Prita Ram, PW 9 SI Dilpazir Singh, PW 10 Dr. Madhu Sharma, and PW 11 Dr. K. K. Sharma.

Out of these witnesses, the direct evidence is that of PW 6 Bimla Devi prosecutrix, PW 7 Bhima Ram and PW 8 Prita Ram.

PW 1 Dr. P. K. Gupta has deposed regarding the age of the prosecutrix. Dr. Madhu Sharma PW 10 had medicolegally examined the prosecutrix and PW 11 Dr. K. K. Sharma had medicolegally examined the appellant. PW 2 Mukesh Kumar is the Draftsman who had drawn the map. Rest of the witnesses are police officials.

I have heard learned counsel for the appellant and learned Assistant Advocate General, Haryana for the State.

Learned counsel for the appellant vehemently argued that the case put up by the prosecution and its witnesses lacks in many respects and there cannot said to be an evidence which can sustain the conviction of the appellant. According to the case of the prosecution, the prosecutrix was living separately from her parents at village Gangheri in the house of her grant-father for the last about 10/11 years. In the examination-in-chief, the prosecutrix has stated that she did not know the accused who was present in the Court and that he did not do any act with her nor misbehaved with her. The witness was declared hostile and cross-examined by the learned Public Prosecutor. In the cross-examination, she has deposed that she had got recorded in her statement Ex. PD that on 22-10-1995, she had gone from her house to the ''baithak'' with tea for her great grandfather Bhima Ram. She had got recorded in her statement she had started collecting ''gobar'' after serving tea to her great grandfather, in the bara meant for keeping cattle. She had also got recorded that Om Prakash accused standing trial and present that day in Court came there and caught hold of her by her arm; that she had got recorded that the accused standing trial and present in the Court after placing his hand on her mouth took her inside Gohara and thereafter the accused after forcibly removing her salwar by untying the string against her wish forcibly committed sexual intercourse. She has further deposed that she had got recorded in her statement. Ex. PD that on her noise her Dada Bhima Ram and one Prita Ram reached the spot and after seeing both of them the accused ran away. She further stated that thereafter she narrated the entire incident of rape having been committed upon her by the accused to her grandmother Hari Piari (not examined as a witness). She further stated thereafter her father Bachna Ram was called and she left in the company of her father to police station Ismailabad to lodge the report and in the way at bus stand Jalbera a police party met them and she made her statement Ex PD to the Thanedar. This is a statement in her cross-examination regarding the happening of the incident. Rest of her cross-examination is regarding further action in the matter. It is surprising that in the cross-examination by the learned Public Persecutor regarding the incident, she has only admitted what she has stated in the complaint. The only deposition regarding rape made in the said cross-examination is that she was wearing the salwar shown to her when she was forcibly raped by the appellant. The positive statement of appellant raping her has come only during cross-examination by the learned counsel for the appellant.

PW 7 Bhima Ram the grand-father of the prosecutrix has stated in his examination-in-chief that at about 6.00 a.m. the prosecutrix brought tea for him and he started taking tea and thereafter the prosecutrix started preparing cow dungs; that after about half an hour he heard cries of her great grand daughter coming from the side of a Gohara that he was taking tea at the time when he heard cries in his baithak and the gohara where his great grand daughter was preparing cow dung cakes is close to his baithak. He has further stated that on hearing the cries, he came out of his baithak and that Pritu (P.W. 8) son of Udhay also come on hearing the cries outside his baithak. He has further stated that he saw the accused coming out of the Gohara and that he raised noise but the accused ran away. He has further stated that the prosecutrix came outside the Gohara crying and on enquiry she told him that she had been raped by Om Prakash appellant.

PW 8 Prita Ram has stated in his examination-in-chief that on the day of incident at about 6.00 a.m. when he reached near the Gohara, he heard noise of cries of a girl and in the meantime after hearing the cries of a girl, Bhima had also come outside his baithak. He has further stated that Bhima went towards the side of Gohara and saw the accused coming outside of the Gohara and the accused ran away from that place and that they saw the prosecutrix tying the string of her salwar and on enquiry, she told them that she had been raped by the appellant.

So far as medical evidence is concerned. PW 10 Dr. Madhu Sharma who examined the prosecutrix has deposed that on external examination, she did not find any mark of injury on any part of body of the prosecutrix and that the prosecutrix had started menstruation about one year back. She has further deposed that on genital examination she found no mark of injury or stain mark over the genitialiae and inner parts of things and that pubic hair were present in small amount but not matted. She has further deposed that there was no mark of injury over the vaginal walls and that two fingers passed in the vagina with some difficulty. She has further deposed that two swabs of vaginal smear were taken and two slides were "formed" with vaginal smear. Swabs and slides were sealed properly and handed over to police. The F.S.L. report is at Ex. PN. According to the report, laboratory examinations were carried out to detect the presence of semen on the exhibits and on analysis, semen could not be detected on shirt, salwar, swab and slides. Dr. Madhu Sharma PW 10 was shown the FSI report during her deposition by the learned Public Prosecutor and she has stated that after seeing the report, she was of the opinion that recent complete intercourse had not been performed.

Regarding the examination of the appellant, PW 11 Dr. K. K. Sharma, Medical Officer, Ismailabad has deposed that he had medicolegally examined the appellant on 25-10-1995 and he had found that there was nothing to suggest that the appellant was unable to do sexual intercourse. This is the only opinion given by him in his examination-in-chief. In the cross-examination, he has stated that smegma was present which shows that the appellant had not performed sexual intercourse within the last 24 hours.

S.I. Dilpazir Singh PW 9 the investigating officer has stated in his examination in chief that on 25-10-1995 at about 4.15/4.30 p.m., the accused was produced before him by Manjoor Singh son of Ajit Singh when he was returning from village Malikapur. Learned counsel for the appellant has in this connection read the cross-examination of PW 7 Bhima Ram who had deposed that the police had arrested the appellant in his presence on the same day and the police had come to the spot on the same day after sometime. When the appellant was arrested on the same day, there is no explanation as to why he was not medicolegally examined on the very day.

The prosecution evidence further suggests that witnesses PW 7 Bhima Ram and PW 8 Preeta are the persons who reached the spot after the alleged act of rape was over. They state that they heard the cries and went there. They saw the appellant coming out of the gohara. There was no injury on the body of the prosecutrix found by the medical officer PW 10 Dr. Madhu Sharma. Though the position was that two fingers could pass into the vagina with some difficulty there is no evidence of emission of semen having taken place in view of the report of the of the F.S.L. It is of course not necessary that for the completion of the offence, emission of semen is necessary and penetration is sufficient, but if the story put forth by the prosecution has to be believed it is to be seen at the appellant was forced to run away. In her cross-examination, PW. 6 Bimla prosecutrix has stated that after two minutes of finishing the act of rape her great father came there and at that time she was tying her salwar. In view of the FSL report this story is not believable. Moreover, the story of forcible rape being committed is also not believable in the absence of any injury on the body of the prosecutrix. It may also be mentioned that the place of incident is a gohara where cow-dungs are kept. If a forcible rape has been committed there would have been injuries on the body of the prosecutrix. Through the prosecutrix has stated that she sustained injuries on her back when she was forcibly made to lie on the ground, this statement is not corroborated by the medical evidence. She has further stated that the accused in all took 15 minutes to commit the rape. She has stated that blood came out of her vagina when the appellant committed rape which stained her clothes, but no blood fell on the ground. This story also is not supported by the report of the FSL. Therefore, the story of forcible rape has to be ruled out. Again it may be mentioned that in the examination-in-chief the prosecutrix has not supported the prosecution but in the cross-examination by the learned Public Prosecutor, she has stated what she had narrated to the police. The above evidence shows that there was no emission of semen at the time of alleged occurrence and that the prosecutrix had not bled at that time. It may be that the appellant might have taken the prosecutrix to the gohara for the purpose of committing sexual intercourse with her consent but might have not been able to commit intercourse because of the above two witnesses reaching there or by any other reason whatever the case may be, it cannot be said that the prosecution has been to prove beyond reasonable doubt that the sexual intercourse was committed by the appellant, though he might have gone to the Gohara for committing such an act. The consent of the minor will not be helpful to the appellant if it is proved that there was penetration. However, when the evidence of penetration is found to be doubtful, the discussion of age would become academic.

In addition to the above facts, some admissions in the cross-examination of great grand father of the prosecutrix i.e. PW 7 Bhima Ram cannot be ignored. He has stated that it is correct that he has enmity with father of the appellant and that about 15 years ago Moli, father of the appellant had set fire to his wheat crop in an area of two killas. He has also stated that he committed theft of the belongings of the residents of the village and that he also committed theft of his belongings. He has further admitted in his cross-examination that he is having grievance and enmity against the father of the appellant and that he has also enmity against the appellant and his family. Therefore, in addition to the doubts which are created by the direct evidence, these admissions go further to show that there is a chance of manipulating a false case against the appellant. It may be that both the appellant and the prosecutrix may be friendly with each other and could have gone into the gohara for the purpose of committing sexual intercourse but the evidence as above cannot be said to be sufficient proof that intercourse was committed by the appellant.

I cannot refrain from commenting that during cross-examination of prosecutrix by the learned Public Prosecutor, the PP was allowed to put question as to the contents of the statement of the prosecutrix before the police. The question of confronting her with the statement given before the police could arise only if she had denied in the cross-examination that the things had not taken place in that manner (as was stated in the statement before the police or complaint). It has to be remembered that what a witness states in the Court is the evidence and not what a witness states before the police. Only by bringing on record what the witness has stated before the Police, it cannot be said that the allegations of the statement are proved. Of course, in the cross-examination by the learned counsel for the appellant, the Prosecutrix has asserted the story of rape but in view of the overall evidence in this case, I do not find it sufficient to uphold the conviction.

Because of the above reasons, I find that it is not possible to sustain the conviction of the appellant.

As a result, this appeal is allowed. The conviction and sentence against the appellant are set aside. The appellant is acquitted of the charge levelled against him and is ordered to be set at liberty if no longer required to be in custody in any other case. Fine, if paid, is ordered to be refunded.

Appeal allowed.