Punjab-Haryana High Court
Jafar Iqbal vs State Of Haryana on 4 February, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 259-SB of 2004 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Appeal No. 259-SB of 2004
Date of Decision: 4.2.2010
Jafar Iqbal
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. S.S. Siao, Advocate
for the appellant.
Ms. Hemlata Balhara, Assistant Advocate
General, Haryana, for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral)
In the present appeal, Jafar Iqbal son of Abdul Wahid has challenged the judgment rendered by the Additional Sessions Judge, Fast Track Court, Gurgaon, who found him guilty of offence under Sections 376 and 452 IPC. The appellant was sentenced under Section 376 IPC to undergo rigorous imprisonment for seven years and a fine of Rs.1,000/-. In default of payment of fine to undergo rigorous imprisonment for six months. He was also sentenced under Section 452 IPC to undergo rigorous imprisonment for three years and a fine of Rs.500/-. In default of payment of fine to undergo rigorous imprisonment for three months.
The appellant was named as accused in case FIR No. 63 Criminal Appeal No. 259-SB of 2004 2 dated 29.4.1999 registered at Police Station Ferozepur Jhirka, under Sections 376 and 452 IPC.
Prosecutrix (as per the orders of Hon'ble the Apex Court, name of prosecutrix is withheld to protect her identity) along with her husband appeared in the Police Station on 29.4.1999 and made her statement Ex.PG to Manjit Singh, Sub Inspector/Station House Officer, Police Station Ferozepur Jhirka.
A perusal of Ex.PG reveal that the prosecutrix stated that her husband is having two brothers, namely Jamaluddin and Ali Mohammad. All the three brothers are married and having children and residing in the adjacent houses. The mother-in-law of the prosecutrix had gone to her parental house. On 28.4.1999, in the evening her husband along with his two brothers were sitting in the Nohra of their uncle. The house of uncle is adjacent to the house of the prosecutrix. She was peeling vegetables in her house. At that time her sister-in-law (Jethani) Amina wife of Jamaluddin, elder brother of her husband, and another sister-in-law (Devrani) Ashubi wife of Ali Mohammad (younger brother of the husband), were also present in their house. At that time, at about 6.30 P.M., all of a sudden Jafar Iqbal of the village came. He bolted the door, scuffled with prosecutrix, had put his muffler in her mouth and got her laid on the cot forcibly, which was already lying there. He broke the string of the salwar and started committing bad act with her forcibly. Prosecutrix made an attempt to raise hue and cry. On hearing noise, Ashubi wife of younger brother of the husband of prosecutrix (Devrani) reached the spot and bolted the door from outside. Husband Idrish along with his brothers was attracted at the spot. They unbolted Criminal Appeal No. 259-SB of 2004 3 the door and found prosecutrix lying on the cot and half salwar was on her knees. At that time, Jafar Iqbal was tying his pant. Chain of the pant was open. Jafar Iqbal was apprehended and tied with Peepul tree with iron chain. Idrish, husband of the prosecutrix, gave him beating with lathi. The Panchayat was convened. In the morning, prosecutrix along with her husband came to Police Station and lodged the report. It is stated that Jamaluddin and Ali Mohammad, brothers of husband of prosecutrix, were present in the house when the accused entered into the house of prosecutrix for committing rape.
The above said FIR was investigated. Report under Section 173 Cr.P.C. was submitted.
The case along with the appellant was committed to the Court of Sessions Judge, Gurgaon, and was entrusted to the Court of Additional Sessions Judge, Fast Track Court, Gurgaon, for trial.
On 9.12.1999, appellant was charged for offence under Section 376 IPC. The charge stated that on 28.4.1999, in the area of village Biwa, the appellant committed offence of rape and also committed house trespass by entering into residential house of prosecutrix and thereby committed an offence under Section 452 IPC. The appellant pleaded not guilty and claimed trial.
The prosecution evidence can be divided into three categories.
Prosecutrix appeared as PW.8. Her testimony was corroborated by her husband PW.7 Idrish and PW.9 Ashubi, wife of younger brother of her husband.
Medical evidence consist of PW.3 Dr. Santosh Jain, who Criminal Appeal No. 259-SB of 2004 4 examined the prosecutrix, and PW.11 Dr. Jai Narain, who examined the accused/appellant and found injuries on his person.
A number of other witnesses were also examined to show the various stages of investigation.
Naresh Kumar, Draftsman, appeared as PW.1. He proved scaled site plan Ex.PA.
PW.2 Ram Niwas, Sub Inspector, had partly investigated the case and had recorded the statement of Vijay Pal Singh, Moharrir Head Constable, Rajbir Singh, Constable and Naresh Kumar, Draftsman, under Section 161 Cr.P.C.
PW.4 Vijay Pal Singh, Head Constable, PW.5 Akbar Khan, Head Constable, and PW.6 Rajbir Singh, Constable, tendered their affidavits Ex.PD, Ex. PE and Ex.PF, respectively, to prove link evidence.
PW.10, Manjit Singh, Sub Inspector, had recorded the statement Ex.PG of the prosecutrix and had prepared the report under section 173 Cr.P.C.
PW.12 Krishan Kumar, Constable, had carried the special report.
PW.13 Des Raj was the Investigating Officer. PW.14 Mr. Mewa Singh, Sub Divisional Judicial Magistrate, Fatehabad, had recorded the statement Ex.PN/1 of the prosecutrix under section 164 Cr.P.C.
The material for the purpose of this Court is testimony of prosecutrix as PW.8, her husband Idrish PW.7 and Ashubi wife of younger brother of husband of the prosecutrix (Devrani) PW.9 and the medical evidence proved on the record. Therefore, a brief detail of this Criminal Appeal No. 259-SB of 2004 5 evidence is required to be noticed.
Prosecutrix was examined by PW.3 Dr. Santosh on 29.4.1999. She was aged 20 years. No external injury was found on face, chest and abdomen. No semen was detected in the pubic hair. Labia minora and majora had no injury. On internal examination, vagina admitted two loose fingers easily. There was no discharge, and no bleeding. Hymen was absent. Salwar of the prosecutrix was taken and handed over to the police. However, opinion was deferred till the report of Chemical Examination. The report of Chemical Examiner found presence of semen on the salwar.
PW.11 Dr.Jai Narain, on the same day i.e. 29.4.1994, medicolegally examined accused Jafar Iqbal, aged 21 years and found following injuries on his person:-
"1. A bluish bruise size of 8 cm x 4 cm over medial aspect of lower part of right leg just above the medial malleolus with swelling right ankle. Movements were restricted. X- ray was advised for right leg.
2. A reddish bruise over left leg 3 x 22 cm with swelling in the middle.
3. A reddish bruise over dorsum of left thumb 3 x 2 cm with swelling over dorsum of left hand. Movements were restricted. X-ray was advised of left hand.
4. A brownish bruise 3 x 1 cm over medial and lower part of left forearm with swelling. Criminal Appeal No. 259-SB of 2004 6 Movements were restricted.
5. A light pink discolouration with swelling of right thenar eminence. X-ray was advised for right hand.
6. A reddish bruise 9 x 2 cm over lower part lateral and back part of left side of chest.
7. Patient was complaining of pain over back without any external colour changes.
8. Two bruises 2 cm each on neck. Colour was reddish.
9. A bruise covering the outer border of left eye, orbit, colour was reddish".
The doctor further stated that the accused was capable of committing sexual intercourse.
It will be necessary here to notice that in defence PW.11 Dr. Jai Narain was also examined as DW.2. He proved the same injuries but further stated that injury Nos. 2, 6, 7, 8 and 9 were declared simple and injury Nos. 1, 3, 4 and 5 on the person of appellant were kept under observation. After the receipt of the X-ray examination, injury No.1 was declared as grievous.
DW.1 Dr. B.B. Aggarwal stated that on 1.5.1999 he conducted X-ray examination on the person of Jafar Iqbal and found fracture of tibia and fibula of right leg.
DW.3 Ram Niwas, Sub Inspector, proved that FIR No. 117 dated 23.7.1999 was registered at the instance of appellant against husband of the prosecutrix and his two brothers for offence under Criminal Appeal No. 259-SB of 2004 7 Sections 342, 323, 325, 506 and 34 IPC.
DW.4 Vijay Pal, Head Constable, had brought the summoned FIR register qua the FIR lodged by the appellant against the relations of the prosecutrix for injuries caused to him.
Prosecutrix appearing as PW.8 reiterated what was stated in the FIR. She further stated that she received injuries on her hand and her bangles were also broken. The accused suggested a version, which was also narrated in statement under Section 313 Cr.P.C. but the same was denied. In the Court, this witness stated that her husband and his brothers reached at the spot after the noise raised by Ashbin. She was confronted with her previous statement, where it was not so recorded. In the cross-examination, this witness further stated that the accused took 15 minutes in committing the whole act i.e. time from his entry in her house till the completion of rape. This witness further stated that she had scratched the face of accused in the course of grappling and she also received scratch injuries, as a result of breaking of bangles. She further stated that the cot was of nawar. No bed sheet was spread and the blood oozed from her injuries, clothes and nawar were smeared with the blood. She further stated that when the door was opened, the villagers were standing outside.
PW.7 Idrish, husband of the prosecutrix, stated that he saw the room of his house bolted from outside. After unbolting the door, he saw Jafar Iqbal, accused, standing, adjusting his pant zip. At that time, his wife was lying on the cot with his salwar open and upto her knees. She told her husband that the accused had raped her.
PW.9 Ashubi stated that she heard a cry of prosecutrix. She Criminal Appeal No. 259-SB of 2004 8 reached at the spot and bolted the room from outside. When the bolt of door was opened, Jafar Iqbal was adjusting his pant, chain and the salwar of prosecutrix was upto her knees.
All these incriminating circumstances were put to the accused when his statement under section 313 Cr.PC. was recorded. He denied them and pleaded false implication. However, he has stated as under:-
"That Jaibunisha used to go to the fields belonging to me to answer the call of nature and I used to stop to talk to her and on wrong inference, Idrish etc. gave beating to me and to save themselves from conviction in that case, I was falsely involved in this case. I was given beatings by Idrish, Ali Mohd. And Jamal and for the said beatings, a case FIR No. 117 of 99 under section 308 IPC etc. is pending against them".
I have heard Mr. S.S.Siao, Advocate, appearing for the appellant and Ms. Hemlata Balhara, Assistant Advocate General, Haryana, appearing for the State.
Mr. Siao has stated that even though under wrong impression, the appellant has denied the occurrence and stated that he was given beating by the husband of prosecutrix who was accompanied by his brothers, it is submitted before this Court that it is a case of consent. This Court has to consider the submissions made by counsel for the appellant as the following circumstances, in view of Court, lend credence to the argument of consent advanced:-
"i) That the date and time of occurrence Criminal Appeal No. 259-SB of 2004 9 stated by the prosecutrix is 28.4.1999 at 6.30 P.M. It is end of April month when the hot season had set in. It has been further stated in the FIR by the prosecutrix that they are agriculturist. In April, after Baisakhi, harvesting of wheat take place. At that time, it was expected that the male members will be in the fields. Therefore, the entry of the accused in the house of prosecutrix was on invitation.
ii) That when the accused arrived in the house of the prosecutrix and went inside the room, no noise was raised, no persons were attracted. At that time, prosecutrix was alone at house. The prosecutrix had offered no resistance to the entry of the accused in the house.
iii) In the present case, PW.9 Ashubi had bolted the door from outside and had raised noise. The accused was not aware that the husband of prosecutrix and male members are not in the fields but were sitting in the adjacent house. Therefore, when the room was opened, as per the evidence which has come on record, prosecutrix was lying on the cot with her Criminal Appeal No. 259-SB of 2004 10 salwar upto the knees and the accused was standing near the cot and he was pulling up zip of his pant. If it was a case of rape, the prosecutrix would not have been lying on the cot and accused standing nearby.
iv) From the inspection of the room, no marks of struggle and scuffle were found.
v) There was no external or internal mark of injury present on the body of prosecutrix. Though in the Court, prosecutrix has stated that she had given scratch injuries to the accused, yet no such scratch marks were found when the accused was medicolegally examined. No scratch marks or injuries due to breaking of bangles were found on the person of prosecutrix.
Though she stated that she received injuries and blood started oozing out, no such injury to this effect was noticed in the Medicolegal Report of prosecutrix.
vi) Prosecutrix stated that blood started oozing from her injuries and nawar of the cot and her clothes were smeared with blood. Neither the nawar of the cot nor clothes of prosecutrix were taken into Criminal Appeal No. 259-SB of 2004 11 possession by the police. PW.13 Des Raj has stated in his cross-examination that he had not found any broken bangles at the spot. Prosecutrix had also not shown broken bangles and he had also not taken clothes of prosecutrix into possession.
vii) It is a case where accused and prosecutrix were caught together in a compromising position. A plea of the prosecutrix that she was raped was accepted by the family to save the honour. When the door which was bolted from outside was opened, husband of the prosecutrix, who was accompanied by his brothers, had given a sound thrashing to the appellant. He received nine injuries. There was fracture of shaft of tibia and fibula of right leg.
Ms. Hemlata Balhara, Assistant Advocate General, Haryana, appearing for the State, has stated that Idrish PW.7 , Prosecutrix PW.8 and Ashubi PW.9 have no reason to falsely implicate the appellant.
In the context of circumstances noticed above, delay in lodging of the report assume importance. The occurrence had taken place on 28.4.1999 at 6.30 P.M. The report was lodged on the next day i.e. On 29.4.1999 at 10.00 A.M. To explain the delay, it was stated that talks of compromise were going on. No person from the Panchayat was examined to vouch safe, the fact that any efforts regarding compromise Criminal Appeal No. 259-SB of 2004 12 were going on. Furthermore, prosecutrix has stated that when the door was opened villagers were standing outside. Nobody from the village has been examined. Therefore, the contention of counsel for the appellant that it was a case of consent and the appellant had gone to the house of the prosecutrix with her consent cannot be brushed aside. From the circumstances noticed above, and submissions made by counsel for the appellant, performance of sexual intercourse due to consent seem probable. Therefore, as a matter of abundant caution, benefit of doubt can be extended to the appellant.
Hence, the appeal preferred by the appellant is accepted. The conviction and sentence awarded upon the appellant is set aside and he is acquitted of the charges.
(Kanwaljit Singh Ahluwalia) Judge February 4, 2010 "DK"