Subhash vs State of Haryana

R.L. Anand, J. (Oral)

This Criminal Appeal has been directed against the judgment dated 1.10.1997 and order dated 3.10.97 passed by the Court of Additional Sessions Judge, Ambala who convicted Subhash and Sunita appellant as follows :

Subhash appellant was convicted under Section 376 IPC and was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 2,000/. In default of payment of fine he was further to undergo rigorous imprisonment for one year.

Sunita appellant was convicted under Sections 114, 342 and 366A of the Indian Penal Code and following sentences were passed on her :

(1) Under Section 114 of the Indian Penal Code 10 years and to pay a fine of Rs. 2,000/. In default of payment of fine to undergo rigorous imprisonment for one year.

(2) Under Section 342 of the Indian Penal Code to undergo rigorous imprisonment for six months.

(3) Under Section 366A of the Indian Penal Code to undergo rigorous imprisonment for a period of 3 years and to pay a fine of Rs. 500/. In default of payment of fine she was further directed to undergo rigorous imprisonment for three months.

All the sentences awarded to appellant Sunita were ordered to run concurrently.

Brief case of the prosecution is that on 9.10.1993 ASI Jai Pal of Police Station Naraingarh alongwith other police officials was present near old Bus Stand of Naraingarh in connection with patrolling when prosecutrix Sunita, her father and mother Jogindro Devi met the said ASI. Prosecutrix Sunita gave statement to the police to the effect that on 7.10.1993 she had not gone to her school as her mother Jogindro was ill and had stayed at the house. She further stated that she was studying in 9th class in Government Girls High School, Naraingarh at that time. Her mother Jogindro had gone to village Khanpur for taking medicine. At about 10.00 A.M., she was all alone at the house when Sunita appellant came to her house and asked the prosecutrix to accompany her. Sunita appellant took the prosecutrix to her house. Sunita then asked the prosecutrix to sit on the bed. When prosecutrix inquired from Sunita accused about the matter, the latter told the prosecutrix to wait. In the meanwhile Sunita accused bolted door from outside. The story of the prosecution was that appellant Subhash was already hidden in the room. He grappled with the prosecutrix and made her to lie on the bed. When prosecutrix tried to raise alarm, appellant Subhash put a piece of cloth in the mouth of the prosecutrix and thereafter he caught the hands of the prosecutrix and with his one hand and opened the string of her salwar with the other hand. Then appellant Subhash removed his pants and underwear and committed the offence of rape with Sunita. Thereafter Subhash accused took out the cloth from the mouth of the prosecutrix who started weeping. Meanwhile Jogindro mother of the prosecutrix and her uncle Pala Ram came at the spot. Sunita appellant opened the door. After this both the accused ran away from the place of occurrence. Prosecutrix narrated the entire incident to her mother and uncle Pala Ram. Then she was taken to the house. Panchayats were held in the village for 2/3 days but as no justice was given to the prosecutrix and her family members by the panchayat, resultantly the matter was reported to the police on 9.10.1993.

On the basis of the statement made by Sunita prosecutrix, formal F.I.R. was recorded by Moharar Head Constable Suresh Kumar. Accused were arrested. Prosecutrix was got medically examined. Police took into possession one parcel of the swabs alongwith forwarding letter addressed to the Chemical Examiner from the Doctor concerned. Parcel was sealed with the seal bearing inscription MKG. Investing Officer visited the place of occurrence and prepared rough site plan. Accused Subhash was also got medically examined and he was found fit to perform sexual intercourse. On completion of the investigation, report under Section 173 Cr.P.C. was submitted in the court of Illaqa Magistrate who supplies copies of the documents to the accused and vide commitment order dated 2.3.1994 committed both the accused to the Court of Sessions for facing trial under Sections 376/342 read with Section 114 of the Indian Penal Code.

Vide order dated 17.3.1994 charge under section 376 I.P.C. was framed against Subhashappellant while charges were framed against Sunita accused under Sections 114, 342 and 366A of the Indian Penal Code. Charges were read over and explained to both the appellants to which they pleaded not guilty and claimed trial.

In order to prove the charges the prosecution examined Doctor Nirmal Parkash Medical Officer who medically examined Subhashappellant on 11.10.1993 and issued Medico Legal Report Ex.PA vide which Subhash appellant was found fit to perform the sexual intercourse. PW.2 Head Constable Suresh Kumar is formal witness. ASI Jai Pal is the Investigating Officer of this case. Head Constable Mohinder Singh is again formal witness who appeared as P.W.4. Jogindro appeared as P.W.5 while prosecutrix Sunita appeared as PW.6. Doctor Uma Garg who medically examined the prosecutrix appeared as PW.7. According to the opinion of this Doctor breasts of the prosecutrix were well developed. Public and axillary hair were also well developed. On examination of the the vagina hymen was found not intact. It was observed by this Doctor that there was no matting of the public hair, no fresh bleeding was present and the vagina admitted two fingers easily. It was also stated by Doctor Uma Garg (PW.7) in her crossexamination that she did not examine Sunita prosecutrix for the purpose of rape and in her opinion Sunita was used to regular sexual intercourse because her vagina admitted two fingers easily. This Doctor also stated that she could not say whether sexual intercourse committed with Sunita was voluntary or otherwise. It could be either way as stated by this Doctor in her crossexamination. Categorically it has been stated by Doctor Uma Garg that there was no sign of struggle when she examined the prosecutrix on 9.10.93. Though this Doctor stated in her ExaminationinChief that she found one abrasion on the right side of the forehead of the prosecutrix but in the crossexamination it has been stated that she could not say whether this injury on the forehead of Sunita prosecutrix was the result of sexual intercourse or not. It could be caused by either means also. Inspector Ram Saran appeared as PW.8.

On closure of the prosecution evidence statements of the accused were recorded under Section 313 of the Code of Criminal Procedure. All the incriminating circumstances appearing in the prosecution evidence were put to the appellants. Sunita appellant stated as follows :

"I am innocent. I am married in village Kherki Jattan. I have been falsely involved by the parents of Sunita prosecutrix as they have got inimical relations with my fatherinlaw."

Subhashappellant has taken the following stand at the trial :

"I am innocent. I have been falsely involved by the parents of Sunita prosecutrix with whom we have got strained relations."

In defence the appellants examined Lajja Ram as DW.1 and Joginder Singh Science Master as DW.2 The birth certificate Ex.PJ was also tendered in evidence by the prosecution.

The learned trial Court vide impugned judgment and order convicted and sentenced the appellants in the manner stated above. Feeling aggrieved against the impugned judgment and order the present appeal has been filed which I am disposing with the assistance of Mr. H.S. Gill, learned counsel for the appellant and Mr. Sailender Singh, Deputy Advocate General, Haryana.

First contention raised by the learned counsel for the appellant is that it is proved case of the prosecution that the prosecutrix was more than 16 years of age at the time of the alleged occurrence and Mr. Gill further stated that the possibility cannot be ruled out that she was consenting party with appellant No. 1 Subhash as the prosecutrix and appellant No. 1 might have been seen cohabiting with each other with the consent of the prosecutrix in the house of Sunita appellant No. 2. Therefore, Sunita appellant No. 2 has also been involved in this case. I find sufficient force in the contention of the learned counsel for the appellants. Ex.D2 is the School Leaving Certificate of prosecutrix Sunita. According to this certificate, her date of birth is 5.5.1977. The alleged act of rape was committed on 7.10.1993. In these circumstances prosecutrix was more than 16 years and if her age is calculated exactly it comes to 16 years 5 months and 2 days. In order to find out whether she was consenting party to the alleged act of intercourse or not we can safely switch over to the statement of Doctor Uma Garg who has stated that vagina of the prosecutrix admitted two fingers easily and that the prosecutrix was habitual to sexual intercourse. There was no mark of injury on any portion of the body of the prosecutrix except small abrasion on the forehead which has no connection with the crime. It is not the case of the prosecution during trial that accused Subhash gave any injury on her face. There was no injury round the lips of the prosecutrix. It is the case of the prosecutrix that Subhashappellant forcibly put piece of cloth in her mouth, in that event the court would expect that there should be some mark of injury round the lips of the prosecutrix. The story of the prosecution further lacks probabilities. It is case of the prosecution that immediately after the occurrence Smt. Jogindro and Pala Ram, mother and uncle of the prosecutrix came to the place of the occurrence. Had it been so, these two persons could have apprehended one of the accused namely Sunita. But strange enough both the appellants fled away.

The counsel for the appellant had invited my attention to the letters mark DA and DB. These letters were duly put to the prosecutrix though she denied her signatures on them for the obvious reason because reading of the contents of these letters would show that prosecutrix in fact had soft corner for Subhash. She had written these letters in a very affectionate manner for Mr. Subhash giving clear indication that Subhash and Sunita prosecutrix were carrying on freely and it cannot be ruled out even that house of Sunita appellant might have been used for the sexual acts. It looks more probable that Subhash appellant and Sunita prosecutrix were found in a compromising position in the house of Sunita appellant and for that reason Sunita appellant has been roped in this case. Statement of Sunita prosecutrix (PW.6) cannot be believed as her statement does not find any corroboration from the medical evidence. She has deposed that "I did not suffer any injury on my private parts. He kissed me on the face but there was no mark. I did not become unconscious. I did not clean my private parts. He discharged his semens in my vagina. The blood sprinkled or fell on my salwar as well as on the bed sheet." To this extent the medical evidence does not corroborate her. Doctor Uma Garg has categorically stated in her statement that she did not notice any fresh bleeding as per vagina of the prosecutrix. It proceeded further that the alleged blood stained clothes of the prosecutrix were neither taken into possession by the Doctor or the Investigating Officer. Even testimony of Smt. Jogindro mother of the prosecutrix does not fit in with the parameters of the probabilities. Once it is established that the prosecutrix was more than 16 years of age and that she was a consenting party to the acts of sexual intercourse, it cannot be said that the appellant No. 1 Subhash committed the offence under Section 376 of the Indian Penal Code. With regard to alleged abetment and wrongful confinement of the prosecutrix by appellant No. 2 Sunita is concerned there is no cogent reason on the record justifying as to Sunita would join hands with her coaccused Subhash in kidnapping a girl. She is a married woman of 31 years and has got three children. She is not related to her coaccused Subhash. In these circumstances she would be the last woman to excite abetment of her coaccused Subhash for the commisison of this offence. The probabilities are more in favour of the appellants indicating the fact that prosecutrix Sunita had close affinity qua Subhash. She had been giving herself earlier for sexual purposes to Subhash appellant No. 1 and on that day i.e. 7.10.1993 she might have offered herself for sexual purposes to Subhash perhaps in the house of Sunita and for that reason both Sunita and Subhash have been implicated in this case. There is no cogent and satisfactory evidence led by the prosecution on the record from which I have been able to draw an inference that prosecutrix was less than 16 years. More so she was consenting party to the sexual intercourse. In view of these circumstances the charges framed against the appellants remain unproved on the record. I extend the benefit of doubt to both the appellants. The appellants stand acquitted of the charges framed against them. They be set at liberty forthwith if not required in any other case. Intimation of this fact be sent to Superintendent Central Jail Ambala regarding appellant No. 1 and Superintendent Borstal Jail, Hisar regarding appellant No. 2.