Madan Lal vs State of Haryana

K.K. Srivastava, J.

Appellant Madan Lal, son of Sat Narain, resident of Bhiwani, has been convicted for the offences punishable under Sections 366 and 376 of the Indian Penal Code and sentenced to suffer seven years'' rigorous imprisonment and to pay a fine of Rs. 200/ and in default of payment of fine, to undergo further rigorous imprisonment for two months, by the Additional Sessions Judge, Bhiwani, vide his judgment dated 17.11.1994.

The facts giving rise to this appeal may briefly be noticed as under :

Smt. Saroj Bala is alleged to have been abducted by the appellant Madan Lal, who resided in a portion of the house where the prosecutrix Smt. Saroj Bala resided with her husband. The incident of abduction is stated to have taken place on 27.2.1993. Madan Lal came to the residence of Smt. Saroj Bala and informed her that her fatherinlaw''s brother (uncleinlaw) had fallen ill and had been admitted in Medical College Hospital, Rohtak, for treatment. Madan Lal told her that her husband Amar Nath had desired that she should carry some money and accompany him to Rohtak. It is alleged further that Saroj Bala, believing the statement of Madan Lal, took a sum of Rs. 500/ and accompanied him. They came to the bus stand of Bhiwani and boarded a bus. Saroj Bala while travelling by the bus felt uneasy and Madan Lal served a cup of tea, which was taken by her and thereafter she became unconscious. Madan Lal and Saroj Bala got down from the bus at night time in a hilly area. Saroj Bala asked Madan Lal as to where he had brought her. Madan Lal threatened her with dire consequences in case she did not keep quiet. Madan Lal took Saroj Bala to his sister''s house, where Smt. Savitri, sister of Madan Lal resided with Kishan. Saroj Bala told Savitri about Madan Lal bringing her by deceitful means. The case of the prosecution further is that Madan Lal took Saroj Bala to another house and committed rape upon her there. Saroj Bala was later on taken to another house by Madan Lal, his sister Savitri and her husband Kishan. The said house was situated in a locality, where there were fields and a black woman along with some children resided in the house. The prosecutrix was detained at the said house for three nights. Madan Lal visited Saroj Bala there and committed rape on her on all the three nights. Thereafter, Saroj Bala was left at the bus stand by Madan Lal and his sister Savitri. Saroj Bala boarded a bus and came to Sonepat, where her brother Naresh resided. Amar Nath, husband of the prosecutrix, came to the house of Naresh accompanied by Jai Kishan, the other brother of Saroj Bala and she told about the occurrence to them. Thereafter the report was lodged with the police. According to the prosecution case, one Om Parkash, who was tried as a coaccused and acquitted alongwith Savitri and her husband Kishan, was also involved in the abduction of the prosecutrix. It was at the behest of Om Parkash that Madan Lal appellant had abducted and raped Saroj Bala. This was disclosed by Madan Lal himself to Saroj Bala.

After registration of the case, investigation was done by SI Debu Ram, who had recorded the statement Exhibit PC of Saroj Bala and made his endorsement Exhibit PC/1 and sent the same to the police station for registration of case. ASI Jagdish Pal recorded a formal FIR Exhibit PC/2. The Investigating Officer inspected the place of occurrence and prepared rough site plan Exhibit PC.10/A. He sent Saroj Bala for medical examination. Clothes of Saroj Bala, which she was wearing at the time of commission of rape, were taken into possession vide seizure memo Exhibit P.10/C. The accused/appellant Madan Lal was arrested by the Police and was also got medically examined. The I.O. visited village Hakimpur, where the prosecutrix was subjected to rape and inspected the same, prepared rough site plans Exhibits P.10/D and P.10/E. Om Parkash, Kishan and Guddi alias Savitri were also attested during he course of investigation on 17.3.1993 and 20.3.1993. After completion of investigation, a challan was submitted by the I.O. The accused persons appeared before the committing Magistrate, who committed them to the Court of Sessions.

Madan Lal was charged under Sections 366/376 of the Indian Penal Code, while Kishan and Savitri were charged under Section 368 Indian Penal Code and Om Parkash was charged under Section 366 Indian Penal Code. The accused denied the charges and claimed to be tried.

At the trial, the prosecution examined ASI Jagdish Parshad as PW.1, Shiva Sharma as PW.2, Dr. S.N. Sharma as PW.3, Smt. Saroj Bala as PW.4, Amar Nath as PW.5, Jai Kishan as PW.6, Vijay Kumar as PW.7, Daya Kishan as PW.8, Dr. Mrs. Punam Bawa as PW.9 and SI Debu Ram the Investigating Officer as PW.10.

As mentioned above the learned trial Judge after conclusion of the trial found the coassuced Savitri, her husband Kishan and Om Parkash not guilty of the charges and accordingly acquitted them of the charges. Madan Lal accused was, however, convicted of the charges under Sections 366/376 I.P.C. and sentenced, as mentioned above.

Feeling aggrieved against his conviction and sentence, Madan Lal has filed this appeal.

I have heard learned counsel for the appellant, learned Assistant Advocate General for the State and have been taken through the evidence of the prosecution witnesses and the record of the case by the learned counsel for the appellant as also by the State counsel.

Learned counsel for the appellant has submitted that the prosecution has in this case miserably failed to establish the charges against appellant Madan Lal beyond shadow of reasonable doubts. The witnesses examined by the prosecution in order to prove the charges of abduction and rape were disbelieved by the learned trial Judge so far as the role of coaccused Om Parkash and Savitri Devi as also her husband Kishan are concerned. He has referred to the statement of the prosecutrix Saroj Bala and argued that her statement clearly showed her consent in accompanying Madan Lal, who did not exert any force on the prosecutrix, nor did he take her by any deceitful means. He mentioned that the prosecutrix had ample opportunity of drawing the attention of the passengers of the bus when she was not being taken to Rohtak Medical College Hospital, but she did not do so. She had also an ample opportunity of drawing the attention of the residents of the village, where she had been taken by Madan Lal, but that was also not resorted to. Saroj Bala did not straightway go to the house of her husband after she had been set free by the appellant and instead of going to her husband''s house she chose to go to the house of her brother. Not only this, when Madan Lal approached her for accompanying him to see her uncleinlaw, she did not think it proper to verify the fact about the illness of her uncleinlaw from her husband. She did not consult her parentsinlaw, who resided in the same vicinity. It may be mentioned that the court put a question to the prosecutrix Saroj Bala (PW 4) in this regard and her reply was as under :

"I did not deem it fit to visit the parents of my husband, who are living in a separate house at Bhiwani. Volunteered, I did not go as Madan Lal had told me that my husband had left for Rohtak."

She further stated that her fatherinlaw and his brother resided in the same house in Bhiwani. The house in which her fatherinlaw resided, as per her statement, is situated at a distance of about 100 kilometre in another street. She stated that she used to visit the house of her fatherinlaw and his brother. According to her statement, she had gone about 34 days prior to this occurrence to the house of her fatherinlaw and enquired about the health of her Taisara (uncleinlaw). House of the husband of the prosecutrix is situated in Nand Ram Katra while house of her fatherinlaw and his brother is situated in Shore Wali Gali. She denied the suggestion that Shore Wali Gali fell on the way to bus stand, Bhiwani, from her house. She also denied the suggestion that Nand Ram Katra was just about 100 yards from the house of her Taisara. In crossexamination she stated about the tea served by Madan Lal appellant, who brought it from a shop at Kalanaur bus stand. Subsequently she stated that it was incorrect that she was served tea at Kalanaur by Madan Lal. She denied the suggestion that the bus stopped at Kalanaur only for enabling the passengers travelling by bus to get down and the stoppage is barely for a few seconds. She stated that she told the Magistrate that the bus at Kalanaur stopped and she was served tea there at the busstand. Then again, she volunteered to state that Madan Lal alighted from the bus and brought tea. She did not notice Madan Lal putting anything in the cup of tea, which was served to her. According to her statement, she got down with Madan Lal at about 900 p.m. at a liquor vend in a hilly area and there she raised an alarm to attract the persons present at the liquor vend, but no one came to her rescue as there was no one present. She, however, admitted that she did not raise any alarm in the bus, nor did she take any step to tell the driver and the conductor of the bus. She also did not raise any alarm at the house of the sister of Madan Lal or at the house of the black woman, where she was kept for three nights although there were a number of houses situated around the said house. She gave the reason for not raising the alarm as the threat held out to her by the accused Madan Lal. She stated that it was correct that Madan Lal did not beat her and she did not receive any injury.

The prosecution examined husband Amar Nath of the prosecutrix Saroj Bala as PW.5. He has stated that he resided with his wife and three children as a tenant in the house of one Bajrang Lal Mahajan in Hanuman Gali, Bhiwani. Accused Madan Lal also was living as a tenant in the same house. On the day of occurrence, i.e. 27.2.1993, he took his lunch at his house at about noon time and then went to meet his parents at their house and his children were away in the school. He returned to his house at about 400 p.m. and found his wife Saroj Bala not present there. He enquired about Saroj Bala from the mother of the accused Madan Lal. She had no knowledge about Saroj Bala. Mother of Madan Lal later on told Amar Nath to got to Hakimpur village in Kalka, where the sister of Madan Lal resided. He lodged a written complaint with the police on 1.3.1993. He stated about the police of the local area to be in league with the accused Madan Lal and consequently the Sub Inspector did not take any action on the complaint and rather reprimanded him and asked him to go away. He narrated about the behaviour of the police to his brotherin law. He, however, received a telephonic message from Sonepat from his brotherinlaw Naresh that Saroj had reached Sonepat and he was asked to reach there. Accordingly he accompanied by Jai Kishan (the other brother of Saroj Bala) went to Sonepat and found Saroj Bala present there. Saroj Bala told him about accused Madan Lal coming to the house and asking her to accompany him to Rohtak where the elder brother of the fatherinlaw had been taken for treatment. She also informed him that on asking of Madan Lal, she took about Rs. 500/ with her. Thereafter she disclosed about the occurrence and how she was left by the accused at the bus stand from where she took a bus and came to Sonepat at the house of her brother.

It will appear from the statement of Amar Nath PW.5 that he was present at his house on the day of occurrence and had taken lunch at about noon time and till then there was no news about the uncleinlaw of Saroj Bala having been shifted to Rohtak for treatment. Normally if it was a fact, the husband was expected to inform his wife about his accompanying the uncle for treatment to Rohtak. In these facts and circumstances, conduct of the prosecutrix Saroj Bala in readily believing the statement of Madan Lal accused about the uncle inlaw (Taisara) having been admitted at the Medical College Hospital, Rohtak and further about her husband also reaching Rohtak and calling her there, appears to be wholly unwarranted and contrary to the conduct of a prudent person. The prosecutrix is a married lady with three children, who were school going. There is nothing in evidence of the prosecution to suggest that the appellant Madan Lal was on friendly and visiting terms with the husband of the prosecutrix. Even if Madan Lal resided in a portion of the same house in which he prosecutrix resided with her husband, still then it was in normal circumstances as a prudent person expected from the prosecutrix to first of all go to the house of her parentsinlaw which was not situated far off and to confirm the fact as to whether her Taisara had been shifted to Rohtak and her husband had also gone. Apart from it, when the husband of the prosecutrix was reported to have accompanied his uncle for treatment to Rohtak, the presence of prosecutrix Saroj Bala at Rohtak was not necessary till she received some authentic information from her parentsinlaw or the husband. It is noteworthy that Saroj Balsa while accompanying Madan Lal appellant did not try to know as to for which place the tickets had been purchased and she did not, upon becoming suspicious of the conduct of the appellant, raise any alarm and did not tell the persons around about her being deceived by Madan Lal appellant and her being abducted by Madan Lal by using deceitful means and that she was seduced by him.

I have already referred above that if there was nothing wrong with the prosecutrix, then once she was set free, as alleged by her, by the appellant, his sister and brotherinlaw, she was, as a normal prudent person, expected to come back straight way to her own house, meet her husband and the children, rather than going to the house of her brother at Sonepat. The statement of the prosecutrix thus does not inspire confidence and is selfcontradictory and clearly indicative and suggestive of her willingness to accompany Madan Lal appellant. There is no corroborative evidence, including the medical evidence, to prove the allegations of rape against the appellant.

Medical report regarding the medical examination on the prosecutrix, conducted by Dr. Mrs. Punam Bawa PW.9 would go to show that no mark of injury was seen over the breasts, upper and lower limbs and wrists. The external genital organs were found well developed. Undergarments were not soiled with any blood, mud or other stains. Clothes were found intact and not torn. No mark of bloodstain etc. was seen. No mark of injury was seen on the inner aspect of thighs, vulva, pubics and separation of thighs was not painful. Pubaic hair were not metted. Swabs were taken from the posterior fornix and cervical of oss and sent for chemical examination. On internal examination, no evidence of blood upon genital organs was found. No evidence of tenderness was seen. The vagina admitted two fingers easily. The vaginal swab was taken and sent for chemical examination. This witness proved the medicolegal report Exhibit P.9/A, which was prepared under her signatures and verified to be correct from the original, which she had brought with her in the Court. She also proved the pettycoat as Exhibit P.1 and identified the same as being taken from the person of prosecutrix Saroj Bala. She was shown the report of the Forensic Science Laboratory, Madhuban, Exhibit P.9/C. She stated that since the prosecutrix was married and having children, the possibility of sexual intercourse could not be ruled out. Statement of Dr. Bawa, mentioned as above, categorically shows that no such material is found on medical examination, which was suggestive of rape having been committed upon the prosecutrix. It is a different matter that she had sexual intercourse with Madan Lal appellant but in order to prove a forcible sexual intercourse, there must be some evidence suggestive of the resistance offered by the prosecutrix and the force applied by the accused.

In view of the foregoing discussion, the prosecution has miserably failed to prove the charges punishable under Sections 366/376 of the Indian Penal Code against the appellant. It is a clear and categorical case of consent of the prosecutrix in voluntarily leaving her house with the accused/appellant and remaining with him for some days before returning to her brother''s house rather than to her husband''s house first. Resultantly, the appeal is allowed. Conviction and sentence passed by the learned Additional Sessions Judge, Bhiwani, under Sections 366/376 of the Indian Penal Code against the appellant are set aside. The appellant is acquitted of the said charges.