Balwan Singh vs State of Haryana

S.S. Grewal, J.—This appeal is directed against the order of Additional Sessions Judge, Karnal, dated 14th of May, 1990, whereby the present appellant was convicted u/s 376 read with Section 511 of the Indian Penal Code for attempting to commit rape on Kumari Manju aged about six years and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/-. In default of payment of fine he was ordered to undergo further rigorous imprisonment for two months.

In brief facts of the prosecution case as emerges from the first information report lodged by Ram Kishan father of Manju prosecutrix aged about six years are that on 21-5-1988 at about 4 or 4.30 p.m. he along with his daughter Manju went to the shop of the appellant (a cobbler) for getting a Chappal of his wife repaired. Balwan Singh appellant told Ram Kishan that it was likely to take some time for him to do this job. Meanwhile Ram Kishan was called by Dharam Vir whose shop is situated at a distance of 15 feet from there across the road. Ram Kishan left his daughter Manju under a tree near the place where the appellant was working as a cobbler. After about 15 to 20 minutes Ram Kishan and Dharam Vir heard shrieks of a child coming from behind the shop of the appellant. Both of them along with another Dharam Vir son of Surat Singh went there. Jawar crops was standing towards the shop of the appellant whereas sugar cane corp was standing towards the eastern side. In between there was a vacant area. When Ram Kishan accompanied by two Dhram Vir reached near the place of occurrence, he saw that the appellant made Manju to lie on the ground in that aforesaid vacant area after removing her underwear. According to these witneses the accused tried to commit rape on Manju. On seeing the two witnesses the appellant ran away in the nearby sugar cane field and escaped whereas Ram Kishan brought his daughter who was trembling at the time to his house. Ram Kishan then went to police station Samalkha and lodged the first information report on the same day at 10.55 p.m. The prosecutrix was examined by Dr. Manju Arora on the following day at 10.30 a.m. However, the said doctor did not find any mark of injury of struggle on the person of Manju including her private parts. Ossification test was also conducted in order to ascertain her age. After completion of the investigation the appellant was challenged tried, convicted and sentenced, as stated earlier.

The learned consel for the parties were heard.

On behalf of the appellant it was submitted that there is no legal cogent or reliable evidence on the record to bring home charge u/s 376 read with Section 511 of the Indian Penal Code against the appellant and that testimony of the prosecutrix who is a child writness and that of Ram Kishan PW. 5 and Dharam Vir PW 6 is quite contradictory and it would not be safe to place any reliance on such an evidence.

There is considerable merit in the contention raised by the learned counsel for the appellant. Manju a child witness aged about six years was examined as PW 4 in this case. After recording questions and their answers, the learned trial Court observed that child Manju understands things fully and was capable of making a statement. It was further directed that her statement would be recorded without administering any oath as it appears that she does not understand the sanctity of oath. According to Manju PW 4, after the accused took her in the field he removed her Kachha and she started weeping. On hearing her voice her father and Dharam Vir came to the spot and then the accused ran away. Ram Kishan father of the prosecutrix while appearing as PW 5 deposed that when he along with Dharam Vir reached near the spot, the appellant was attempting to commit rape on his daughter Manju. He further deposed that the appellant had already removed Kachhi of the prosecutrix and he had also removed his Kachha. To the similar effect is the testimony of Dharam Vir PW 6.

Careful perusal of the testimony of the aforesaid three material witnesses referred to above shows that Manju a child witness had not specifically mentioned that the accused too had taken off his Kachha. The version given by Ram Kishan and Dharam Vir PWs is to the effect that the accused too had removed his own Kachha and after Manju was made to lie on the ground the accused was attempting to commit rape on her. It is significant to note that there was no mark of injury on the person of Manju prosecutrix. In case she had been made to lie on the bare ground and the appellant who was strong man in his twenties had attempted to commit rape on her, then Manju normally would be expected to receive some injury on her person particularly on her back. Absence of any injury on the person of the prosecutrix contradicts the version given by Ram Kishan and Dharam Vir PWs referred to above. Even otherwise, it would be difficult to believe that the appellant would attempt to commit rape on Manju in the evening at about 5.15 p.m. when several people would be expected to be present in the nearby two or three shops and Baithak of Surja near the place of occurrence. Absence of any injury on the private parts of the prosecutrix is another factor which contradicts the occular account given by Ram Kishan and Dharam Vir PWs that the accused had attempted to commit rape on the prosecutrix.

The men may tell lies but the circumstances won''t. Material circumstances referred to above, leave no manner of doubt that both Ram Kishan and Dharam Vir PWs are wholly unreasonable witnesses and it would not be safe to place implicit reliance on their testimony. Manju herself is a child witness and she belongs to that dangerous class of witnesses who can easily be tutored by their parents or elders to level wild allegations against individuals for their own selfish ends.

In these circumstances testimony of Ram Kishan, Dharam Vir and Manju is not worthy of reliance. There is inordinate delay of more than five hours in lodging the first information report. This is another factor which clearly indicates that there was ample time for the complainant to implicate the appellant in this case.

For the foregoing reasons, I am of the considered view that the prosecution has failed to bring home charge u/s 376 read with Section 511 of the Indian Penal Code against the appellant and as an abundant caution giving the benefit of doubt I hereby acquit him by setting aside the order of conviction and sentence passed by the trial Court. This appeal is accordingly allowed.