Anil Kumar vs State of Haryana

Learned counsel for the State has filed affidavit of Sh. Ashok Kumar, Deputy Superintendent, District Prison, Karnal mentioning the period of imprisonment undergone by applicant/appellant Anil Kumar. The same is taken on record.

Heard learned counsel for the parties.

Criminal miscellaneous application has been filed seeking suspension of sentence of imprisonment of the applicant/appellant during pendency of the appeal. FIR in the case has been registered on the complaint (Ex. PD) of the prosecutrix (PW-2) daughter of Ram Kumar who has alleged that she was a student of 12th standard and on 16.06.2011 at about 7.00 p.m. she had gone from her house to the ''Johar Wala'' plot of her village for throwing cow-dung. When she was returning, the applicant/appellant Anil Kumar and his co-accused Narender alias Badshah (juvenile) forcibly put her on their motorcycle. She tried to cry out but they gagged her mouth with a cloth and then they took her to the fields. There their third accomplice, namely, Satish was found standing. Then they committed rape on her and after that they held out threats to her that if she disclosed the said facts to anyone, she would be killed. On returning home, she informed everything to her family members. Then her brother Jitender went to the house of the accused to complain of the act. However, Amit elder brother of the applicant/appellant Anil Kumar assaulted him. Thereafter, report Ex. PD was lodged on 18.06.2011 by the prosecutrix which was endorsed by the police official vide endorsement Ex. PD/1 on the basis of which FIR was registered.

The prosecutrix was medico-legally examined on 18.06.2011 by Dr. Sukhdeep Kaur, Medical Officer, General Hospital, Panipat (PW-1). The doctor inter alia recorded that she (i.e. the prosecutrix) had alleged history of sexual assault by unknown persons on 16.06.2011 at 7.00 p.m. in village Bhadar against her will. Besides, it is recorded that she suffered abrasion with brown scab on the back of right elbow, simple/blunt having duration of 48 hours to 7 days was found. On local examination, separation of thighs was not painful. It is also recorded that the hymen was found old torn with healed tags of epithelium. No bleeding or redness was present. On speculum examination, cervix and vagina of the prosecutrix were found healthy. On vaginal examination, it was found that it admitted two fingers easily. Two vaginal swabs were taken and two slides of the same were prepared with vaginal fluid, which were sent for chemical examination. MLR was prepared and a copy of the same was handed over to the police. It was opined that after going through the MLR, she (Dr. Sukhdeep Kaur - PW-1) was of the opinion that possibility of sexual assault on the prosecutrix could not be ruled out. On the strength of the same it is contended that the prosecutrix had lied when she stated that she did not have sexual intercourse earlier.

The statement Ex. PE of the prosecutrix was also recorded by the learned Area Magistrate on 20.6.2011 under Section 164 of the Code of Criminal Procedure (''CrPC - for short).

Learned counsel for the applicant/appellant has further made reference to the deposition of the prosecutrix wherein she has stated that she had received injury on her back, waist and elbow besides, bleeding from her private parts. However, according to the FSL report, her salwar was not blood-stained and neither was any semen detected. Besides, the prosecutrix stated that before the present occurrence, she had never had sexual intercourse with anyone. Further emphasis is made on the submission of the prosecutrix wherein she states that she admits the contents of Ex. D2 wherein it has been recorded as correct that on 17.06.2011 she moved an application in her own handwriting before the police. Besides she states as correct in the application that she had levelled allegations only against the accused Anil Kumar (applicant/appellant) and co-accused Narender alias Badshah. Further she stated that this statement was not given by her rather it was dictated to her by another counsel. She did not move any complaint before the Court. Further it is stated that handwriting of Ex. D1 dated 17.06.2011 was not known. It is stated as wrong to suggest that the application Ex. D1 had been moved by her or that she was setting up a lie before the Court to conceal the facts. Therefore, learned counsel for the applicant/appellant states that the prosecutrix has lied through and through and her statement, therefore, is not liable to be taken into consideration. It is also stated that the police had obtained signatures of the prosecutrix on blank papers. It is further contended that the Forensic Science Report belies the contention of the prosecutrix inasmuch as no blood or semen was detected on the salwar and the vaginal swab semen or blood.

In response, learned counsel for the State has submitted that the prosecutrix was just 16 years of age and she clearly names the applicant/appellant as the person who had committed rape on her. It is submitted that the applicant/appellant has undergone actual sentence of one year, ten months and twenty two days only, as on 02.08.2015. Besides, it is submitted that the statement of the prosecutrix on which learned counsel for the applicant/appellant has laid much emphasis may relate to the other accused, however, she clearly has named the applicant/appellant as the person who committed rape on her.

We have given our thoughtful consideration to the contentions of learned counsel for the parties. However, we find no merit in the contentions as have been raised by learned counsel for the applicant/appellant. The prosecutrix while appearing in the witness box as PW-2 clearly stated that she had gone to ''johar'' (pond) ''wala'' plot of her village for throwing cow dung on 16.06.2011 at about 7.00 p.m. While she was returning home, she met Anil (applicant/appellant) and Narinder alias Badhshah who forcibly took her on their motorcycle. When she raised cries, they gagged her mouth with a cloth and then took her to the fields where their third accomplice, namely, Satish was present. All of them raped her and threatened her not to disclose the incident to anyone otherwise she would be done to death. She narrated the whole incident to her family members and when her brother Jitender went to the house of Anil (applicant/appellant) for complaining about their such act, his elder brother assaulted him and inflicted injuries on him. A Panchayat was convened on 17.06.2011. As there was no outcome, she gave a complaint Ex. PD on 16.08.2011.

It may also be noticed that the statement of Prosecutrix was recorded in which she makes a mention of rape being committed on her by Anil (applicant/appellant). Besides the prosecutrix was about 16 years old.

The contentions of learned counsel for the applicant/appellant that the prosecutrix was telling lies inasmuch as she had stated before the doctor that some unknown persons had sexually assaulted her two days earlier to her medical examination on 18.06.2011 i.e. on 16.06.2011 at 7.00 p.m., it is to be noticed that the statement was made on the date of her medical examination on 18.06.2011 and it is so recorded by the doctor. The learned trial Court in fact noticed that the prosecutrix undoubtedly admits in her cross-examination that at the time of her medico-legal examination, she informed the doctor that some unknown person had sexually assaulted her. It was however, held that the version contained in the MLR is subsequent to the version contained in the document Ex. D1/A and Ex. PD. It was accordingly held that the version in the MLR since it had not been supported by substantive evidence before the Court was not of much help to the defence. Even otherwise, the prosecutrix stated that a Panchayat was convened on 17.06.2011 and as there was no outcome, she gave a complaint Ex. D1/A. The said complaint Ex. D1/A is in her own handwriting. Therefore, the contention of learned counsel for the applicant/appellant that the complaint Ex D1/A was dictated by a counsel and police had obtained signatures on blank papers are not required to be gone into at this stage as admittedly, the complaint Ex. D1/A was given by the prosecutrix in her own handwriting.

The contention that the prosecutrix was habitual of sexual intercourse whereas, in her statement, she stated she never had sexual intercourse, is of no consequence. It may be noticed that it is the accused in the case who are on trial and not the victim, and even if the victim in a given case may have been promiscuous in her sexual behaviour earlier, she had a right to refuse sexual intercourse to anyone as she is not vulnerable object and prey to anyone as laid down by Hon''ble Supreme Court in State of Punjab Vs. Ramdev Singh, .

The contention regarding the injuries on the person of the prosecutrix, it is to be noticed that there was abrasion with brown scab on back of right elbow, simple/blunt having duration of 48 hours to 7 days. The prosecutrix was examined on 18.06.2011 and the incident had occurred on 16.06.2011 which is within 48 hours of receiving the injury and the possibility of the same being received in the sexual assault cannot be ruled out.

The other contention of learned counsel for the applicant/appellant that the salwar of the prosecutrix was stated to be stained with blood, however, as per the FSL report Ex. PC there was no blood or semen detected on the salwar of the prosecutrix. It is to be noticed that semen was detected on Ex. P3 i.e. underwear of Varinder and Ex. P4 i.e. underwear of one Anil (applicant/appellant). However, semen could not be detected on the other exhibits which includes one blue colour salwar Ex. P2 of the prosecutrix. The same is not of much significance as admittedly semen is detected on the underwear of Anil (applicant/appellant). Besides, there may be no semen on the salwar as the prosecutrix was sexually assaulted by removing her salwar. The learned trial Court noticed that the prosecutrix accepts that on the date of her medico-legal examination, she was wearing the same salwar at the time of commission of offences in question yet, she was not asked as to whether in the intervening period the salwar had been washed. Therefore, it was held that once it was so the absence of blood on her body or on her clothes is rendered immaterial to the defence. It is to be kept in view that the prosecutrix was medico-legally examined two days after the occurrence. Therefore, the possibility of salwar being washed in the intervening period, as held by the learned trial Court would require consideration.

The applicant has undergone actual imprisonment of one year, ten months and twenty two days out of total sentence of 14 years. Therefore, at this stage, it would be premature and quite early to suspend his sentence of imprisonment.

Accordingly, the criminal miscellaneous application is dismissed at this stage. Nothing observed herein shall be construed as an expression of opinion on the merits of the appeal which is to be considered on the basis of evidence and material on record.