Narinder vs State of Haryana

T.H.B. Chalapathi, J.

These two appeals, one from the jail and another through an Advocate have been filed against the conviction and sentence imposed on the appellant by the learned Sessions Judge, Rohtak for the offences under Section 376 and 506 I.P.C. in Sessions Case No. 16/14111995/851997 decided on 29.7.1997.

According to the case of the prosecution, on 3.7.1995 accused committed rape on Sunita at the point of knife. On a complaint given by the victim, a case was registered under Sections 376 and 506 I.P.C. On the basis of the material placed before him, the learned Magistrate committed the case to the Session and the learned Sessions Judge framed charges against the accused for the offences under Sections 376 and 506 I.P.C. The accused pleaded not guilty.

In order to prove the guilt of the accused, the prosecution examined 11 witnesses and marked certain documents. When the accused was examined under Section 313 Cr.P.C. he stated that the case of the prosecution is false and the prosecutrix was having illicit relations with one Gopal son of his uncle and he warned her not to carry on with these relations and he was falsely implicated in this case. In defence, the accused examined DW1 who deposed that the age of the prosecutirx at that time of the incident appeared to be 1617 years.

On a consideration of the evidence on record, the learned Sessions Judge found that the age of the prosecutrix was more than 16 years on the day of the alleged occurrence and the plea of the accused that she had illicit relations with Gopal of his village was not believed. He did not believe the story of the prosecution that the accused committed rape on Sunita at the point of knife. But holding that the charge against the accused stood proved, he convicted the accused for the offence under Section 376 and sentenced him to undergo R.I. for four years and to pay a fine of Rs. 500/. Hence this appeal.

PW10 is Dr. Sunita Siwach who examined the prosecutrix PW8. She did not find any injury or scratches on the body of the victim. But on the basis of the report of the Forensic Science Laboratory, Madhuban, she stated that the possibility of intercourse on the person of the prosecutrix could not be ruled out as the human semen was found on the salwar and shirt of the prosecutirx. The Doctor also found that during the course of medical examination, hymen not raptured and the vagina was found admitting one finger.

To prove that the accused committed rape on Sunita without her consent, the learned Sessions Judge strongly relied upon the evidence of PW8, the prosecutrix. The evidence of PW8 read with the evidence of PW10, the Doctor who examined the prosecutrix, clearly shows that there were no injuries on the body of PW8. It is clear from the evidence of PW10 that the hymen was intact and it was not ruptured. If the victim was unwilling to sexual intercourse, she would have received injuries on her person. The absence of injury on the body of the prosecutrix generally gives rise to an inference that she was a consenting party to the cohabitation. That too when it is alleged that the offence was committed in a field near Kikar trees. It is no doubt true that a conviction can be based on the sole testimony of the prosecutrix if there are strong reasons to believe the version. The evidence of PW10 also shows that the swabs and pubic hair from vagina were also sent to Forensic Science Laboratory alongwith the Salwar and Kameej of the prosecutrix, but no semen was found on the pubic hair and vaginal swabs of the prosecutrix. It is no doubt true that the report the analyser shows the presence of semen on the complainant''s clothing. But it is not sufficient to prove that the complainant was actually raped as held in the case of Jalal v. Emperor, AIR 1930 Lahore 193(1).

After going through the evidence on record, I am of the opinion that the prosecution failed to prove that the accused committed rape on the prosecutrix PW8 and the accused is entitled to be acquitted of the charge framed against him.

Accordingly, I allow the appeals and set aside the conviction and sentence imposed on accused by the learned Sessions Judge. Bail bonds of the accused appellant shall stand cancelled.

Appeals allowed.