Sardara vs The State of Haryana

D.S. Tewatia, J.—Appellant Sardara, who was convicted for an offence u/s 376 I. P.C and sentenced to five years'' rigorous imprisonment belong to the same village as does the prosecutrix Smt. Bala though to two different communities.

The prosecution case, in brief, is that on 1.4 1976 at about 1 P. M , the prosecutrix was passing in front of the house of the accused on her way to the house of one Pala to have a look at his bride. The accused is said to have told the prosecutrix that his mother wanted to see her. When she wanted to first go to the house of Pala, he Insisted that his mother wanted to meet her urgently. She went to the house of the accused being followed by him. On entering the courtyard, she found none there. The accused then suddenly took her into his grip and took her inside the kotha and shut the door thereof. He hurriedly removed the bell-bottom worn by the prosecutrix. In that effort, string of the bell bottom was broken and the bell-bottom was also torn. After removing the bell bottom from the person of the prosecutrix the accused also removed his own Kachha and became naked. Despite the struggle put up by the prosecutrix, the accused had the carnal knowledge of her. The cries and noise raised by the prosecutrix is said to have attracted to the house Mansa Ram PW9 and and Ratti Ram PW 10, Mansa Ram PW pushed open the door and saw the accused lying upon the prosecutrix. On seeing him the accused pick-ed up his kachha and rushed out of the house. The prosecutrix put her bell-bottom and narrated the occurrence to him. She was taken to her house where in the presence of her mother and grandfather she again nar rated the occurrence to Mansa Ram and Ratti Ram P. Ws. the matter thereafter was reported to the repectables of the village and a word was also sent to Goverdhan, real uncle of the girl, who resided at Karnal. Goverdhan reached the village at about 7 P.M. that very evening. He brought the girl to Karnal, the next day, that is, on 2nd April 1976. He consulted Shri K. L. Khanna, advocate, Karnal, and got application, Exhibit P.W., written by him which was presented to Shri S. S. Dahiya, Judicial Magistrate, First Class, Karnal. In pursuance of the order so passed by the Judicial Magistrate, the girl was medically examined at 6.45 p.m that day in civil hospital at Karnal by Dr Subita Adwani P W I After having medico legal report, Goverdhan accompanied by the prosecutrix went to Police Station, Gharaunda, on 3rd April 1976 and lodged the F.I.R, there at 10 a.m.

A S I. Sadhu Ram PW 14, who investigated the case, took into possession some broken bangles lying underneath the charpoy, on which the rane is said to have been committed upon the prosecutrix. The bell bottom which she is said to have worn on the day of lape, was also made over to the investigating officer. The glass slides prepared with the help of vaginal smear by Lady Dr. Sabita Ajwani and the bell bottom and the vaginal smears were sent to Forensic Science Laboratory, Rohtak. The Assistant Director cum Assistant Chemical Examiner reported back that semen was present on the bell-bottom, as also on the vaginal smear.

The accused was examined by Dr. Prem Kumar P W, 2 on 7th April 1976 at 3.45 p m., who opined him fit for sexual intercourse.

Dr. L. R. Sardana P.W 3 had carried X ray examination of the prosecutrix in order to detrmine her age. He opined her age to be between 171/2 and 19 years. To the question, he stated that an allowance of six months both ways could be made in the age of the prosecutrix given by him.

Besides the medical testimony, the prosecusion case primarily rests on the testimony of Santosh Bala PW 4, Mansa Ram PW 9, Chambeli PW 6 (mother of the prosecutrix), aipal(sic) Singh PW 11 regarding the taking into possesion of broken bangles, Shri K L. Khanna Advocate PW 12, Shri S. S. Dahyia PW 7, regarding the application Exhibit PF and order thereon by the latter for the medical examination of the prosecutrix, and Hukam Chand PW 13 regarding the birth certificate Exhibit PM having been prepared by his predecessor Jai Singh. Dr. Jahangir Singh regarding his opinion that the broken glass bangles and those that were later on taken from the person of the prosecutrix were of the same origin.

The accused when examined u/s 313 Criminal Procedure Code, returned a plea of denial simpticiter and examined no evidence in defence.

The learned trial Court dubbed the story of brokan bangles being taken from underneath the charpoy on which rape was said to have been committed upon the prosecutrix as a piece of pure padding and excluded the same out of consideration. It, however, came to the conclusion, on the strength of the medical evidence as also that of the report of the Assistant irector(sic) that the prosecutrix was subjected to sexual intercourse believing the testimony of the prosecutrix and that of Mansa Ram and Ratti Ram P. Ws, and the corroborative testimony of Chambeli P.W., that it was the accused who had the carnal know-le ge(sic) of the prosecutrix. The question that finally arose for consideration, in view of the age of the prosecutrix being definitely over sixteen years, was as to whether the prosecutrix had been subjected to sexual intercourse against her will without her consent. The learned trial court rejected the theory of consent a advanced on behalf of the defence on the ground (1) that such a plea had not been advanced by the accused when examined u/s 313. Criminal Procedure Code, (2) that the prosecutrix belonged to Banya community while the accused belonged to Dhanak Community and, therefore, though not impossible, it was highly improbable that the prosecutrix would have taken fancy for the accused belonging to a low caste, and (3) t t(sic) breaking of the string of the bell bottom of the prosecutrix in some way lends support to the theory that there was some struggle.

The circumstance that there was complete absence of any injury on her back or bu tocks(sic) or to her private parti, was sought to be explained away that there could not have been any injury on the buttocks etc. as the rape was committed on a cot and that the prosecutrix on having realised the futility of putting up any resistance may have ceased to resist and that explains the absence of any injury to her private parts which, if the sexual intercourse had been done under resistance from the prosecutrix, would have been there, according to Dr. Subita Ajwani PW-1

In my opinion, the trial Court acted erroneously in discarding the theory of consent advanced on behalf of the accused. The first circumstance that it took into consideration in discarding the theory of consent was that such a plea had not been taken by the accused in his statement. It is elemnetary that for taken up such a stand for exonerating himself of the offence, it is never considered necessary that such a plea should have been taken by the accused in his statement u/s 313 Criminal Procedure Code. It is open to the accused to advance such plea if material exists on the record in support thereof. The second eircumstance that she belonged to a Higher caste and the accused belonged to the lower caste and, therefore, possibility of liaison between the two was highly improbable if not impossible was again a circumstance which runs in the face of realities. When two persons of opposite sex devolop fancy for each other, such circumstances stand relegated altogether from their minds. The third circumstance that breaking of the string of the bell-bottom of the prosecutrix in some way lends support to the theory that there was some struggle and consequently it was not a case of consent, in my opinion, lacks in firm basis in that the bell bott om was never taken and shown to the prosecution much less being produced before the Court. Obviously, the prosecution had something to hide from the Court in not producing the bell bottom before the Court Production of the bell bottom was to establish three facts (1) presence of semen thereon, (2) its broken string, and (3) its colour regarding which the prosecution witnesses had desposed. The actual production of the bell bottom was perhaps likely to give a lie to either all the three said facts or any of one of them. The infere-ce is irresistible that the prosecution had withheld the bell-bottom from the Court for the reason its production would have gone against the prosecution case.

The learned trial Court attached no importance to the absence of injuries on the bottoms of the girl for the reason that the rape was committed on a cot and, therefore, such injuries could not have been there. If one refers to the testimony of the prosecutrix herself, it is clear that the cot was a Munj fibre and at the time when the alleged rape was committed upon h r it was a bare cot without any cloth etc. being thereon. If on a cot of this kind, the accused had taken the carnal knowledge of the prosecutrix and there hud been struggle, as she deposed that there had been single at least for five minutes, then Munj strings as a result of rape were likely to render raw and render skin of herbottoms with tell ale marks.

The injuries that would have been there on the private parts of the prosecutrix if the accused had taken carnal knowledge of her without her consens as desood(sic) to by the Lady Doctor, were sought to be explained by the learned trial Court on the facile reasoning that the prosecutrix, faced with the inevitable, may have stopped resisting. That is neither here not there, as that was not her evidence. The reading of the judgment shows that the learned trial Court has given full reins in its fancy and speculative mental approach.

In my opinion, circumstances of the case indicate that she was a consenting party. It appears that somebody had seen them entering the house and on being surprised she in collaboration with her family members in order to protect her reputation, as also that of the family, made out the case that the prosecutrix had been raped by the accused, when, in fact, it was the case of consent. The fact that there has assembled a Panchyat of the respectables of the village at the instance of the relat one of the prosecutrix which considered the matter for the whole day shows that it was a case of consent, otherwise such mat-ter are either hushed up or reported to the police, but never a pan-chyat is arranged. The Panchyat was arranged, parhaps, for the reason that it was a case where the accused belonged to a lower-caste and despite the girl being a consenting party, in the eye of the community it was an offence enugh that a lower caste person had da ed to have an evil eye on the girl belonging to a higher caste community.

The yet another cricumstance that her s alement had been got recorded u/s 64, Criminal Procedure Code, also shows the apprehension in the minds of the relations of the prosecutrix that the may not ultimately support the prosecution case. Her statement would not have been recorded u/s 164 if the prosecutrix would not have been a consenting party She being a consenting party, there must have been a lurking fear in the minds of the relations of the prosecutrix that she may let them down at the trial and so they thought it fit to have her statement recorded under sectitn 164 Criminal Procedure Code.

For the reasens aforesaid, I hold that no offence is made out against the accused and consequently his appeal is accepted and his conviction and sentence quashed.