Punjab-Haryana High Court
Ram Kumar vs State Of Haryana on 2 August, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 990-SB of 1998
Date of Decision : August 02, 2010
Ram Kumar
....Appellant
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Sudershan Goel, Advocate
Mr. Manish Deswal, Deputy Advocate General, Haryana
T.P.S. MANN, J.
Vide judgment and order dated 7.11.1998, Additional Sessions Judge, Jhajjar convicted the appellant under Section 376 IPC and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo another imprisonment for six months. Hence, the present appeal.
According to the prosecution, on 25.2.1997, the prosecutrix went to her fields to bring fodder for the animals. There were fields of the appellant adjoining her fields. After collecting fodder, the prosecutrix called the appellant to help her in lifting the "gathri" of fodder but instead of helping her, he caught hold of her and forcibly committed rape with her. At about 1.30 p.m., the prosecutrix returned to Crl. Appeal No. 990-SB of 1998 -2- the house and on the next day, her husband returned home. The prosecutrix disclosed him about this occurrence. She also informed him that she had given a teeth bite on the cheeks of the appellant, her bangles were broken during the scuffle, and that the appellant had threatened to kill her in case the matter was reported to anyone. The prosecutrix, accompanied by her husband, left the house to report the matter to the police when at the bus stop of Beri, ASI Ram Kumar met them, to whom one written application was given by her. ASI Ram Kumar, thereafter, made his endorsement on the same and sent it to Police Station Beri, on the basis of which FIR No. 62 dated 26.2.1997 under Sections 376 and 506 IPC was registered against the appellant.
During the course of investigation, ASI Ram Kumar visited the spot and prepared rough site plan. He also collected some broken bangles from the spot and recorded the statements of the witnesses. The prosecutrix was got medico-legally examined from General Hospital, Beri. The appellant was arrested on 4.3.1997 and was got medico- legally examined. ASI Ram Kumar also got prepared the scaled site plan. The clothes of the prosecutrix were taken into possession and were sent to the office of the Director, Forensic Science Laboratory, Madhuban for examination.
Upon completion of investigation, presentation of challan, followed by commitment of the case to the Court of Sessions, charge under Section 376 IPC was framed against the appellant, to which he Crl. Appeal No. 990-SB of 1998 -3- pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 SI Jai Parkash, PW2 SI Hari Chand, PW3 Dr. Kavita Jain, PW4 Dr. V.K.Jain, PW5 Hari Om, Patwari, PW6 the prosecutrix, PW7 Jai Bhagwan, husband of the prosecutrix and PW8 SI Ram Kumar.
When examined under Section 313 Cr.P.C., the appellant denied the prosecution evidence and claimed himself to be innocent. He, however, did not lead any evidence in his defence.
After hearing learned counsel for the parties and going through the evidence brought on record, the trial Court convicted and sentenced the appellant, as mentioned above .
I have heard learned counsel for the parties and with their able assistance, scanned the evidence.
Learned counsel for the appellant has submitted that the delay in lodging of the FIR has not been explained by the prosecution. Infact, the said delay was used in concocting a false version.
As per the prosecution, the occurrence had taken place on 25.2.1997 at about 1.30 p.m. The prosecutrix, thereafter, returned home but her husband was not there as he was away for his work. On 26.2.1997 at about 10.30 a.m., the husband of the prosecutrix returned home and she narrated the entire occurrence to him. Both of them, thereafter, started for the Police Station and came across ASI Ram Kumar on the way. The prosecutrix then submitted her application Ex. Crl. Appeal No. 990-SB of 1998 -4- PA upon which ASI Ram Kumar made endorsement Ex.PA/1 on 26.2.1997 at 2.00 p.m., and sent the same to the Police Station for registration of the case. Accordingly, on its basis, FIR Ex.PA/2 came to be recorded at Police Station Beri on 26.2.1997 at 3.50 p.m. The special report was also sent through Constable Hari Singh, which was received by the Ilaqa Magistrate on 26.2.1997 at 8.40 p.m. It is true that application Ex. PA was submitted by the prosecutrix before ASI Ram Kumar after more than 24 hours of the occurrence but as her husband was not home, when she went there and had returned only on the next day at 10.30 a.m., that she had accompanied him to the Police Station. When such like incident takes place, the victim would always look for some adult member to come back home before lodging the report. Same thing happened in the present case as when the prosecutrix reached home her husband was not there and once he returned on the following day at 10.30 a.m., that she apprised him about the incident and, thereafter, proceeded for the Police Station to lodge the report. Further, the appellant had extended a threat to the prosecutrix that if she reported the matter to the police she would be killed. Therefore, whatever delay occurred in the reporting of matter to the police stands properly explained. Once the FIR was registered, the special report was sent immediately, although not required so, the offence being under Section 376 IPC only yet it was entrusted to Constable Hari Singh, who delivered the same to the Ilaqa Magistrate within a few hours after the registration of the FIR. Therefore, no benefit of the delayed reporting of Crl. Appeal No. 990-SB of 1998 -5- the matter to the police can be extended to the appellant.
Learned counsel for the appellant has also submitted that the medical evidence did not corroborate the ocular version. Though the prosecutrix claimed that she put up resistance when she was subjected to rape yet no injury was found on her body. However, from the statement of the prosecutrix as PW6, it is established that during the struggle between her and the appellant, her bangles were broken and the crop standing at the spot was also damaged. The broken bangles were taken into possession by the police by preparing memo. Ex. PJ. The pieces of the broken bangles were twenty in number. Further, in her written application Ex. PA and also while deposing before the trial Court as PW6, the prosecutrix stated that she had given a teeth bite on the cheek of the appellant. The appellant was arrested on 4.3.1997 and, thereafter, subjected to medical examination by PW4 Dr.V.K.Jain on the same day who found a healed abrasion 2 x 1 cm on his left cheek which was 2 cm. below left eye. The duration of the said abrasion was five to seven days. Therefore, such an abrasion could have been caused on 25.2.1997. The presence of the healed abrasion on the left cheek of the appellant which could be the result of giving of teeth bite by the prosecutrix confirms the fact that there was resistance offered by the prosecutrix when she was subjected to forcible sexual intercourse by the appellant. Therefore, it cannot be said that the medical evidence does not support the ocular account.
Crl. Appeal No. 990-SB of 1998 -6-
Learned counsel for the appellant while referring to the statement of PW3 Dr. Kavita Jain has submitted that at the time of her medical examination, the prosecutrix had not informed the doctor about having been subjected to rape whereas according to her, some one, who had come to her field to help her, had misbehaved with her.
According to PW3 Dr. Kavita Jain when she examined the prosecutrix on 26.2.1997 at 6.40 p.m., the prosecutrix narrated the history that on 25.2.1997 at 1.30 p.m., when she went to the field, a person came to help her and started misbehaving with her. It was not expected of the prosecutrix to straightway narrate before the attending doctor that she had been subjected to rape. The act of the accused in committing rape upon her would also amount to misbehaviour by the appellant with her. Further, no fault can be found with the testimony of the prosecutrix when before her medical examination, she did not give the name of the person, who had misbehaved with her. Similarly, the absence of any scratches on the body of the prosecutrix stands explained by PW8 ASI Ram Kumar when he stated that there was standing crop at the spot and some crop had got damaged. By the last week of the month of February, the wheat crop in this part of the country is very soft and would not have resulted in scratches being received by some one, who is made to lie upon wheat stems and subjected to forcible sexual intercourse.
Crl. Appeal No. 990-SB of 1998 -7-
The prosecutrix was a married lady. Her youngest child was of two years while the eldest of nine years. Therefore, no corroboration to the testimony of the prosecutrix could be there from the medical evidence. However, while during medically examining the prosecutrix, PW3 Dr. Kavita Jain had taken clothes of the prosecutrix into possession. Those clothes were sent for examination. Vide report Ex.PE issued by the Forensic Science Laboratory, it is made out that human semen was found on her underwear. It is the case of the prosecution that the appellant after pinning down the prosecutrix had opened the string of her salwar by breaking it and when she was subjected to rape, her salwar was still in her legs and had not come off. If the salwar was still on her legs, the same would be the position of her underwear and in such a situation when she was to dress herself, once again, she would have adjusted her underwear first and, thereafter, the salwar. That explains the presence of human semen on the underwear and not on her salwar and shirt. The absence of semen on pubic hair and swab stands explained as she was medico-legally examined after about twenty eight hours of the occurrence and in that interregnum, she ought to have made water and taken bath.
From the testimony of the prosecutrix as well as the medical evidence, it stands established that there was no consent on the part of the prosecutrix to the act of sexual intercourse. The bangles which she was wearing at the time of the occurrence got broken. She Crl. Appeal No. 990-SB of 1998 -8- had resisted the act of the appellant by giving teeth bite on his cheek. Therefore, the appellant has made himself liable for committing the offence under Section 376 IPC.
I have also perused the impugned judgment of conviction and find that the same is based upon proper appreciation of the evidence available on the record. No case is made out for any interference in the same.
Resultantly, the appeal is without any merit and, therefore, dismissed.
( T.P.S. MANN )
August 02, 2010 JUDGE
ajay-1
Kumar-I Ajay
2013.08.23 16:34
I attest to the accuracy and
integrity of this document
Chandigarh