Sundri Devi vs State of Haryana and Another

A.N. Jindal, J.—The Appellant, a victim (Smt. Sundri Devi), has sought leave to appeal against the judgment of acquittal passed by the learned Additional Sessions Judge, Ambala, whereby the court acquitted the accused/Respondent of the charges u/s 376 IPC and Section 3 of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The prosecutrix aged 35 years, a married lady and a mother of four children came with the allegations of rape upon her at the hands of the accused. Consequently, accused (hereinafter referred to as the Respondent) was tried and acquitted of the charge framed against him.

The story set up by her is that on 13.11.2009 at about 7.30 PM she had gone to answer the call of nature and when she was just about to leave the place, the accused came there, caught hold of her; tore her clothes and raped her. On raising hue and cry her brother-in-law arrived there, whereupon the accused ran away naked after leaving his underwear, trousers and shawl.

On the basis of the aforesaid statement, FIR was registered on 14.11.2009. The case was investigated and the charge report was submitted against him.

The prosecution in order to substantiate the charges against the accused, examined 15 witnesses in all viz. Sundri prosecutrix (PW 1), Lady Constable Sofia (PW 2), Amar Pal (PW 3), Sham Lal (PW 4), HC Dharamvir (PW 5), Tarlochan Singh (PW 6), Constable Nasib Singh (PW 7), Dr. Mrs. Davesh Singh (PW 8), Constable Dharamwir (PW 9), MC Ravinder Kumar (PW 10), SI Devender Singh (PW 11), Dr. Anurag Gupta (PW 12), Ram Kishan (PW 13), Prem Chazid (PW 14) and DSP Ashok Kumar (PW 15). FSL Report Ex.PX was also tendered.

In his statement u/s 313 of the Code of Criminal Procedure, the accused denied all the allegations and pleaded his false implication in the case. However, in his defence, he produced copy of challan in case FIR No. 42 dated 4.4.2005 Police, Station Barara Ex.D.1, copy of charge framed against Nirmal and Inderjit Singh etc. Ex.D.2, copy of list of witnesses Ex.D.3 and copy of statement of Talwinder Singh Ex.D.4.

Trial resulted into acquittal.

Arguments heard. Records perused.

The case is replete with many illegalities and infirmities which impel us to doubt the credential of the prosecutrix as well as her testimony. The occurrence is stated to have taken place on 13.11.2009 at 7.30 PM. However, FIR was lodged after a delay of 12 hours i.e. at 8 AM. No explanation for lodging such a delayed FIR has come forth from the side of the prosecutrix. No injury was found on her person. Dr. Mrs. Davesh Singh (PW 8) in her testimony has categorically stated that no external mark of injury was seen on her person. Dr. Anurag Gupta (PW 12) has also stated that no fresh injury was found all over her body which may indicate about the resistance on the part of the prosecutrix and the force used by the accused in the commission of the crime. Had the accused used force while committing intercourse then the prosecutrix was found to have sustained some injuries much less abrasions or nail marks on her body.

Now coming to the testimony of the prosecutrix, she is a married woman of 35 years of age and 10 years older to the accused who is unmarried. The prosecutrix was married twice. There is apparently no evidence of rape. Another improbable circumstance is that the prosecution has stated that the accused had fled away from the scene after occurrence in naked condition, leaving his clothes but in the absence of proof of any spermatozoa on the clothes, mere recovery of clothes may be one of the circumstances leading towards the guilt but that is not sufficient evidence to connect him with the commission of the crime. No report from the Chemical Examiner, that the clothes were having any semen stains has been proved on record. Even no Chemical Examiner report has been produced in order to show if there was human semen on her private parts.

It appears to be a case of enmity. The accused has established on record that his father had filed a case against Inderjit Singh and others copy of which is Ex.D.1.

The prosecutrix in her testimony has admitted that she had come to depose against the accused in the car of said Inderjit Singh. Amar Pal (PW 3) in his testimony has admitted that he and husband of the prosecutrix are working in the fields of Inderjit Singh. Therefore, the case appears to have been got registered by the prosecutrix at the instance of Inderjit Singh who wanted to settle his scores with the father of the accused.

Impugned judgment does not suffer from any such illegality or infirmity much less perversity warranting interference by this Court.

Consequently, finding no merit, the application for leave to appeal, is declined.