Raj Mal vs State of Haryana

Jai Singh Sekhon, J.

Raj Malappellant was convicted by the learned Additional Sessions Judge, Gurgaon, on the charge for offences punishable under Sections 376 and 452 of the Indian Penal Code. He was awarded four years rigorous imprisonment and fine of Rs. 1,000/ or in default of payment thereof to further suffer one year''s rigorous imprisonment, on the first count, while one years rigorous imprisonment was awarded on the second count., The amount of fine, if realized, was ordered to be paid as compensation to the prosecutrix. Feeling aggrieved against his conviction and sentence, he has come up in appeal.

In brief, the facts of the prosecution case, are that Mst. Jameela, Prosecutrix, along with her husband Hassan Mohammed (P.W.2) and children used to reside in a thatched hut in the area of Village Rithar. Her husband used to sell goods in different villages as a peddler. On November 6, 1985, at about 2 P.M., while suckling her youngest child, she went in deep slumber. In the meanwhile, her neighbour Raj Mal accused came there and secured her from her breasts. She woke up. The accused then gagged her mouth with her left hand and with the help of the other he opened the string of her Salwar and without her consent committed sexual intercourse with her. She failed to make any noise due to the gagging of her mouth. However, she put up struggle during this process. Her suckler child fell down from the cot during this process. In the meanwhile, her husband Hassan Mohammed (P.W.2) alongwith Kasam and Harun arrived there. Raj Mal accused managed to escape despite of best efforts of these witnesses to apprehend him. She was then crying and apprised her husband of the entire episode. Her husband wanted to take her to the Police Station for lodging the report, but Sufeda and Chuttan, in whose land they were residing, restrained them from doing so saying that they would bring about a reconciliation. Ultimately, when nobody tried to reconcile the matter, she along with her husband came to Police Station, Nagina, on November 9, 1985 and lodged the report (Exhibit P.A.) at 8.05 P.M. with Sub Inspector Gian Chand. A case under Sections 376/452 of the Indian Penal Code was registered against the accused. The prosecutrix was then taken to Primary Health Centre, Nagina, for medical examination where from she was referred to the hospital at Ferozepur Jhirka as no lady doctor was available. She was then taken to Ferozepur Jhirka, but as the lady doctor was ill, she was referred to General Hospital, Gurgaon. Ultimately, at General Hospital, Gurgaon, she was medically examined by Dr. (Mrs.) Rekha Yadav (P.W.3) at 4.30 A.M. on November 10, 1985. She found no external injury on her private parts or other portion of the body. She took swabs from the vagina of the prosecutrix. She also got removed the Salwar and handed over the Salwar and swabs to the police for their chemical examination after putting them in sealed parcels. The Chemical Examiner detected human semen on the Salwar; but not in the vaginal swabs.

After medical examination, the prosecutrix along with police officials including Head Constable Sukh Pal Singh (P.W.8) arrived at the spot. The accused was arrested on November 14, 1985. He was got medically examined from Dr. Sudhir Kapoor (P.W.4) on that very day, who found him fit to perform the sexual intercourse. An abrasion 2 cms x 1 cm was found on his left lower leg.

After completion of investigation, the accused was arraigned for trial on such like allegations by submitting the charge sheet before the Committing Magistrate, who committed the case to the Court of Sessions.

Before the trial Court, in order to prove its above referred case, the prosecution examined eight witnesses. Mst. Jameela (P.W.1) as well as her husband Hassan Mohammed (P.W.2) supported the above referred version of the prosecution while Kasam and Harunwitnesses were given up as having been won over by the accused.

The accused, before the trial Court, in his statement under Section 313 of the Code of Criminal Procedure pleaded innocence and false implication due to quarrel between him and Hassan Mohammed (P.W.2) over an electric pole which was to be shifted in front of the house of Hassan Mohammed. The accused appellant, however, led no evidence in defence despite being called upon to do so.

The trial Court, believing the ocular evidence of the prosecutrix and her husband coupled with the medical evidence, convicted and sentenced the accused as referred above.

I have heard the learned counsel for the parties besides perusing the record.

It is not believable that Hassan Mohammed will put up the honour of his wife at stake by registration of a false case of rape against the accused on the alleged altercation between him and the accused regarding the shifting of electric pole. On the other hand, it appears that the prosecutrix was subjected to sexual intercourse by the accused. The question then arises whether she was a consenting party to this episode or the accused had subjected her to forcible sexual intercourse against her will. In this regard, it is noteworthy that she is a married lady and her daughter Bismillah is twelve years old while her son Umar is ten years old. She has given her age as 24 years during her testimony. The accused is also a married person. According to Dr. Sudhir Kapoor (P.W.4) the accused is about 48 years old. Thus, it is not perceivable that the accused would manage to gag the mouth of the prosecutrix with left hand and commit sexual intercourse with her after opening her Kamarband with his right hand; because in that case the prosecutrix would be in a position to put up effective resistance as both her hands were not secured by the accused. Strangely enough, not even a scratch mark was found on the face or front portion of the accused although the prosecutrix alleged having put up resistance during this incident. Admittedly, her hut is located in the habitation of the village and near the hut there is the shop of her fatherinlaw. The fall of a one year old child would certainly maker her cry and attract the attention of residents of the locality especially when the occurrence had taken place at 2/3 P.M., during broad daylight. She had also not suffered any external injury during the alleged forcible sexual intercourse. Consequently, the reasonable possibility cannot be ruled out that she was a consenting party to the sexual intercourse with the accused.

The testimony of her husband Hassan Mohammed (P.W.2) that he saw the accused emerging out of his hut, or that he chased him, or that the prosecutrix was then weeping and told him having been subjected to forcible sexual intercourse by the accused, is of no consequence because a woman would behave in that manner while caught redhanded with her paramour. On the other hand, the conduct of the husband is easily agreeing for a compromise is not acceptable, if actually the sexual intercourse was committed with his wife without her consent. On the other hand, he would do so only if in his heart of hearts he was convinced that his wife was a consenting party to such sexual orgy. Simply because there was only one family of Taili in the village while the other habitation was of Meo Sect, it cannot be said that the complainant was feeling helpless to lodge the report.

The question then arises whether conviction of the appellant under Section 452 of the Indian Penal Code is sustainable. Under the circumstances of the case, reasonable possibility cannot be ruled out that he was lured by prosecutrix to have sexual intercourse with her. If that is so, then he had not committed the offence of criminal trespass what to say of having done so after making preparation of causing hurt to any person or assaulting any person or wrongfully restraining any person or putting any person in fear of hurt or of assault or of wrongful restraint, so contained in Section 452 of the Indian Penal Code.

For the foregoing reasons, the orders of conviction and sentence of the trial Court, being not sustainable, are hereby set aside by accepting the appeal and acquitting the appellant. The appellant is on bail. His bail bonds are ordered to be discharged. Fine, if realized, shall be refunded to the appellant.