George Masih alias Bulla vs State of Punjab

K.S.P. Sandhu, J. (Oral)

George Masih alias Billa aged 16/17 years stands convicted under Section 376 read with 511 and 452 Indian Penal Code. Sentence awarded under Section 376 read with Section 511 Indian Penal Code is two years and a fine of Rs. 200/. In default of payment of fine two months rigorous imprisonment and under Section 452 Indian Penal Code to undergo one year rigorous imprisonment. The sentences of course were ordered to run concurrently.

Briefly stated the prosecution case is that the appellant George Masih is living close to the house of the prosecutrix namely Chinndo in village Quthi Nangal. It is alleged that at about noon on 26th August, 1980, the appellant went to house of the prosecutrix where she and her younger brother Jit PW alone were there, as their parents had gone to some other village. It is further alleged that on some pretext accused sent Jit the brother of the prosecutrix to bring play cards and after he had left the house, he lifted the prosecutrix and put her on the cot and broke the string of her salwar, and tried to commit rape on her but in the meantime Jit returned and on an alarm being raised by Chhindo and Jit the accused took to his heels. Report was lodged on the same day at 8.40 P.M. by Shri Surta Singh, father of the prosecutrix at police station Sadar Batala, which is at a distance of two miles from the place of occurrence. Chhindo was got medically examined on 27th August, 1980 and the accused was also got examined on 29th August, 1980, on the day of his arrest.

Accused in his statement recorded under Section 313, Criminal Procedure Code, has pleaded false implication.

Doctor on examination of the prosecutrix gave her age 14 to 15 years. In crossexamination he stated that there could be variation of two years on either side. No internal or external injury was found on the person of prosecutrix. On internal Examination he found that her vagina could admit two fingers easily. There was no fresh tear of hymen. He further found that prosecutrix was suffering from syphilitic infection.

The prosecution examined only Chhindo and her brother Jit as eye witnesses of the occurrence.

Mr. T.P.S. Mann, learned counsel for the appellant has argued that although the appellant has taken the plea of denial simplicitor still if the circumstances of the case and prosecution evidence itself makes out a case of consent, then the accused has to be given the benefit of doubt. In support of his contention he has cited Partap Mishra and others v. State of Orissa, AIR 1977 Supreme Court, 1307.

To my mind this case is really one of those consent cases which ultimately detected are converted into criminal act. The prosecutrix as is clear from the medical evidence did not receive any injury at all. There is no struggle make on her body and she seems to be girl of easy virtue. Not only that she was used to sexual intercourse even she is suffering from syphilitic infection. The alleged occurrence is of day time in the village. In such a situation no one would try to get into some body else''s house to commit rape because on the slightest alarm there is likelihood a number of persons collecting on the spot, as the house is situated in a populated area. It appears from the circumstances that the prosecutrix had earlier a liaison with the accused and they found the absence of her parents as a very good opportunity to indulge in sex pleasure, but it appears that the young boy came in and saw them and consequently the father of the prosecutrix was obliged in this situation to lodge the report for attempted rape. Strange enough, in the day time, in the residential area after alarm being raised no independent person came to the spot. This again is suggestive of the same fact that it was a case of mutual consent and not to attempted rape.

In view of the above discussion, I hold that the appellant is entitled to acquittal. Consequently the appeal is allowed and his conviction and sentence on all the charges set aside. Fine if already paid, be refunded to the appellant.