Punjab-Haryana High Court
Cra-S-2122-Sb-2003 (O&M) vs State Of Haryana on 16 July, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
CRA-S-2122-SB-2003 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: July 16, 2013
1. CRA-S-2122-SB-2003 (O&M)
Ajit Singh .... Appellant
Versus
State of Haryana .... Respondent
2. CRA-S-847-SB-2005 (O&M)
Rajpal Singh .... Appellant
Versus
State of Haryana .... Respondent
CORAM: HON'BLE MRS. JUSTICE ANITA CHAUDHRY
Present: Mr. S.S. Narula, Advocate
for the appellant in CRA No.2122-SB of 2003.
Mr. Surinder Dagar, Advocates
for the appellant in CRA No.847-SB of 2005.
Mr. Dhruv Dayal, DAG, Haryana.
*****
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Anita Chaudhry, J.
This order shall dispose of two criminal appeals bearing No. CRA-S-2122-SB of 2003 and CRA-S-847-SB of 2005 as both arise out of the same judgment. For the sake of brevity, the facts are being taken from CRA-S-2122-SB-2003.
Accused Ajit Singh and Rajpal Singh were convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.2,000/- each and in default of payment of fine Bura Sonia 2013.07.26 11:55 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2122-SB-2003 (O&M) -2- to further undergo rigorous imprisonment for a period of one year under Section 376(2)(g) IPC. They were also convicted and sentenced to undergo rigorous imprisonment for six months under Section 506 IPC.
A written complaint Ex.PB was given by the prosecutrix to the police at 4.50 p.m. on 23.01.2002, wherein she disclosed that she had gone to the fields owned by Leela Singh to collect fodder for the cattle. Ajit Singh S/o Leela Singh and Rajpal Singh came to the fields and caught hold of her and she was thrown on the ground and she fell over the sarson crop. Then Rajpal Singh committed rape upon her while Ajit Singh was standing a little bit away. Thereafter, Ajit Singh committed rape upon her. The prosecutrix raised noise and her brother-in-law Anil Kumar and his wife Kunti, who were working in the nearby fields came running. Both the culprits managed to escape. The matter was reported to the police on the next day. It was disclosed by the prosecutrix that a Panchayat was held but the matter could not be resolved. FIR Ex.PB/1 was registered and the special report reached to the Magistrate at 8.00 p.m. on 24.01.2002. The police collected the broken bangles and black underwear from the spot. Investigation was completed and police lodged a report against both the accused under Sections 376(2)(g) and Section 506 IPC. They pleaded not guilty and claimed trial. The prosecution had examined 17 witnesses i.e. the prosecutrix, PW-3 Anil Kumar-brother-in-law of the prosecutrix, besides the medical officer. Dr. Neelam Thapar, PW-16 had examined the prosecutrix on 25.01.2012 and had found the following injuries on her person:
" Injuries: 1. Two abrasion 0.5 cm. x 0.1 cm. and other 2 cm. below it of 0.5 x 0.1 cm. just below the left eye and Bura Sonia 2013.07.26 11:55 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2122-SB-2003 (O&M) -3- one abrasion present on the left nostril of 0.3x0.1 cm. Complaints of pain in right knee joint. Advised orthopaedic Surgeon opinion. Complaints of body ache. There is no difficulty in micturition and defaecation. Local examination: Perspeculum examination cervix and vagina healthy. On per vaginum examination cervix downwards uterus ante verted normal size firm mobile bi-lateral fornices clear. No external mark of injury present on the external genitalia vagina admitting two fingers easily."
The medical officer after going through the FSL had given her opinion that the possibility of sexual intercourse could not be ruled out. The report reads as under:
" 1.(i) Human semen mixed with blood was detected on Ex.-1a (underwear).
(ii)Blood was detected on Ex-1b(Piece of cloth). However, semen could not be detected on this exhibit.
2. (i) Blood could not be detected on the Ex-2a (broken glass bangles) and Ex-2c handkerchief.
(ii)Ex-2b(hair) were identified as human hairs.
3.i)Human semen was detected on Ex.3a(petticoat). Traces of blood were also detected on this exhibit.
(ii)Human semen mixed with blood was detected on Ex-3b (underwear) and Ex-3b(swab).
4. Neither blood nor semen could be detected on Ex-3c (hair).
5. Blood was detected on Ex-4(blood).
The serological analysis was carried out on the human semen but the result was inconclusive."
Accused Ajit Singh and Rajpal Singh in their statements under Section 313 Cr.P.C. pleaded false implication and offered to produce defence.
The accused had examined Manku and Rohtash as their Bura Sonia 2013.07.26 11:55 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2122-SB-2003 (O&M) -4- defence witnesses.
I have heard the learned counsel for the parties and gone through the record carefully.
It was contended on behalf of the appellants that the story weaved by the prosecutrix appears to be improbable from the very beginning as both master and the servant would not rape the same woman and to facilitate the servant, the master would not stand at a distance. It was contended that there was no resistance, the clothes were not torn and there were no abrasions on the back whereas the allegations are that the rape was committed in the field and before rape she was thrown on the ground and story seems to be unbelievable. It was urged that the forensic experts had found blood stains and human semen but they could not detect the group and merely finding semen is not sufficient to infer that the rape was committed upon the victim. It was contended that the police had tried to help the prosecutrix but had committed blunders and one underwear was found on the spot and there were total three underwears which were sent for examination. It was contended that the prosecutrix was wearing a black underwear with white dots and the FSL does not speak about the underwear worn by her. It was urged that there was delay in lodging the FIR and the father-in-law of the prosecutrix was a police official and the real facts were that the prosecutrix had damaged the crop of Ajit Singh and she was reprimanded and this case was got registered by taking advantage of his position. It was urged that it was impossible for two men to rape a woman when her family members were around which according to the prosecution was only at a distance of 60 yards.
Bura Sonia 2013.07.26 11:55 I attest to the accuracy and integrity of this document Chandigarh
CRA-S-2122-SB-2003 (O&M) -5- Learned counsel for the State had contended that no woman would get involved in such kind of incidents and would not lodge a false complaint playing with her own character and when there were two men it was not possible for her to offer resistance and the delay is not fatal as the explanation had been given.
Both the accused have been charged under Section 376(2)
(g) of the Indian Penal Code. In order to establish an offence under this Section read with Explanation 1 thereto the prosecution must adduce evidence to indicate that more than one accused had acted in concert and in such an event, if rape is committed even by one, all the accused would be guilty irrespective of the fact that she has been raped by one or more. The prosecution must prove and adduce evidence of a completed act of rape by at least one of them. The provision introduced by the legislators embodies a principle of joint liability and there should exist common intention i.e. a prior concert. It has not been disputed that the prosecutrix was working in the fields of Leela Singh, father of the accused-Ajit Singh. There is no dispute that Rajpal Singh-appellant is the servant of Ajit Singh. It is also not disputed that the brother-in-law of the prosecutrix namely Anil Kumar and his wife were also working in the same field. That place was 60 yards away only.
The prosecutrix is a married woman. Her father-in-law had accompanied her to the police station on the next day. He is a police official posted at Faridabad. The incident took place at 2.00 p.m. on 23.01.2002. The FIR was lodged at 5.40 p.m. on 24.01.2002. It is the version of the prosecutrix that when she raised noise, her husband's younger brother and his wife came running and she was Bura Sonia 2013.07.26 11:55 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2122-SB-2003 (O&M) -6- brought back to her house. She had further disclosed that they were stopped from going to the police by the villagers and they were pressing for compromise but they did not agree to it and, therefore, the matter was reported late to the police. According to her, the Panchayat was convened amongst her own family members and no one from the accused side was called. It was admitted by the prosecutrix that there was party faction in the village but both the accused and the prosecutrix were from the same party.
The defence raised by the accused was that the prosecutrix was removing fodder from their field and when the accused prevented her from doing so, an argument ensued and the case was got registered. The prosecutrix had stated that she had a sickle in her hand. She also stated that her under clothes were taken into possession by the police after her medical examination. She admitted that she had handed over her clothes to the police.
A photographer was taken to the spot, who had taken photographs Ex.P-1 to P-8. He had stated that the police had taken him to the Sarson field and he did not find any sickle. The photographs were taken by him on 24.01.2002. He had stated that he was asked to take photographs of the broken bangles and a lady underwear was also found at the spot and he had taken its photograph.
The incident had taken place on 23.01.2002. The photographer had gone to the spot on the next day and had found the underwear in the field. The prosecutrix was examined on 25.01.2002 and medical officer had stated that the petticoat and the underwear with white dots were sealed and it was handed over to the police. There are major contradictions in the prosecution case as to who had Bura Sonia 2013.07.26 11:55 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2122-SB-2003 (O&M) -7- handed over and to whom.
The medical officer did not find any mark of external injury on the external genitalia. There were two abrasions on the face. The victim had complained of pain in the right knee but there was no visible injury.
The incident had not taken place within the closed doors but in the open fields, where the close family members of the prosecutrix were working. It is a case of rape of a married woman. The medical evidence showed that there was no injury on the private parts; and there was no injury on the back. No semen could be detected on vaginal swab. Semen was detected on the petticoat but no medical evidence was produced to show that semen was of the accused. The serological analysis of the human semen was found to be inconclusive. The medical officer had found semen stains on the clothes worn by the prosecutrix. At the best, it could be evidence of commission of sexual intercourse not of rape.
It is true that in a case of rape, evidence of the prosecutrix must be given pre-dominant consideration but there should be some medical evidence to support her statement and story should not be improbable.
In the present case, the victim is said to have been over powered by two men while she was laid on the ground, the other accused stood nearby and she was violated. The prosecutrix is a mature woman and had she made any resistance, there would have been tell-tale marks on her body. The Hon'ble Apex Court on more than one occasion had noticed that the approach of the trial court that ordinarily a lady would not '' put her character at stake' may not be Bura Sonia 2013.07.26 11:55 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2122-SB-2003 (O&M) -8- wrong but cannot be applied universally and each case has to be determined on the touch stone of the factual matrix thereof. The law reports are replete with decisions, where charges under Section 376 IPC have been found to be false. The statement of the prosecutrix was made to the police after a delay and no reason has come forth. There was a male member nearby and the matter could have been reported on the same day. The medical officer had categorically observed that there was no external mark of violation on any part of the lower body or at the back. It appears that there was no forcible sexual intercourse. The victim must have put in resistance as she was a grown up lady and there would be some injuries on her private parts, which is indicative for the use of force. The injuries on the body is not always a must or but when the victim has been subjected to force sexual intercourse, there has to be some injuries.
In Partap Misra and others v. State of Orissa, 1977 Criminal Law Journal 817, wherein the Hon'ble Supreme Court observed that the opinions of medical experts showed that it was very difficult for any person to rape single handedly a grown up and an experienced woman without meeting the stiffest possible resistance from her and the absence of any injury either on the accused or the prosecutrix was a clear pointer to the fact that she had not put any resistance to the alleged rape leading to the irresistible conclusive that she was a consenting party.
It is difficult to accept that the victim was raped when her family members were around and she did not raise alarm. It was not a case that they were far away and could not have heard her cries. There are serious infirmities in the prosecution case. The prosecution Bura Sonia 2013.07.26 11:55 I attest to the accuracy and integrity of this document Chandigarh CRA-S-2122-SB-2003 (O&M) -9- has also failed to match the semen found on the petticoat with the stains on the underwear of the accused.
In view of the discussion above, It is held that the prosecution has failed to bring home the guilt beyond reasonable doubt. Both the appeals are accepted and both the accused are acquitted. They be released, if not required in any other case.
(ANITA CHAUDHRY) JUDGE July 16 ,2013 sarita/sonia Bura Sonia 2013.07.26 11:55 I attest to the accuracy and integrity of this document Chandigarh