Nihal Khan vs State of Haryana

A.N. Jindal, J.—This appeal is directed against the judgment dated 22.12.1999 passed by the learned Additional Sessions Judge, Gurgaon, convicting and sentencing the accused-appellant Nihal Khan (herein referred as ''the accused'') to undergo rigorous imprisonment for ten years and to pay fine of Rs. 5000/- u/s 376 IPC.

In nutshell, the prosecution allegations are that on 24.9.1996, at about 10.00 a.m., the prosecutrix (name not disclosed) made a statement to the effect that on 24.9.1996 she had gone to bring fodder from the field known as "Aamkawala". At about 11.30 a.m. when she was collecting fodder, the accused came quietly, caught her, closed her mouth with the help of safi (a short piece of cloth usually kept by the males in the villages on their shoulders); tied her hands with lugri (a cloth usually kept by females in the villages on their head); made her to lie down on the earth; opened the string of her salwar and raped her. She failed in her efforts to save herself. After the commission of crime, the accused fled away. She became unconscious. During struggle, she received injuries on her back, forehead, right eye and other parts of her body. Later on her husband arrived there and took her to their house. On the aforesaid statement Ex.PE, FIR was registered and case was investigated. She was got medically examined on 25.9.1996. The Investigating Officer prepared the rough site plan Ex.PF of the place of occurrence and took the salwar and shirt into possession. The doctor also sent the swabs to the Chemical Examiner. The Investigating Officer recorded the statements of the witnesses and completion of the investigation was followed by a report u/s 173 Cr.P.C.

The accused was charged u/s 376 IPC, to which he pleaded not guilty and claimed trial.

In order to substantiate the charges, the prosecution examined C. Vijay Anand (PW1), C. Rajinder Parshad (PW2), SI Vijay Singh (PW3), Ved Pal Patwari (PW4), Dr. Santosh Jain (PW5), Dr. Lal Singh (PW6), Prosecutrix (PW7), Issab (PW8) and ASI Siri Dev (PW9).

When examined u/s 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. He further explained that there was previous enmity between the parties. A case FIR No. 220 dated 20.12.1985 under Sections 148/149/323/325 IPC was registered against the husband of the prosecutrix and his brother in which they were held guilty by the Judicial Magistrate Ist Class, on 27.11.1990, thus, in order to have vengeance, her husband had involved him in this false case.

In defence, they examined HC Dariyao Singh (DW1), who proved the FIR No. 220 of 28.12.1985 which was recorded on the basis of the statement of Noor Mohammad son of Chajju resident of Khajlikala. Aasin (DW2) deposed that his fields are near the fields of Issab and he is living there since 9-10 years. He did not hear any incident of rape with the prosecutrix. Usman, Record Keeper of Ferozepur Jhirka, proved the record of the case file. The accused also proved copy of the FIR Ex.DB which reveals that Nihal Khan is shown as injured eye witness in the case earlier registered against Issab (husband of the prosecutrix). Judgment Ex.DC proved on record reveals that Nihal Khan was the victim and the accused were convicted and sentenced vide judgment dated 27.11.1990 passed by the Judicial Magistrate Ist Class, Ferozepur Jhirka for causing injuries to Nihal Khan. Ex.DD is the copy of the statement of Nihal Khan accused in that case.

On appreciation of the evidence, the trial court convicted the accused and sentenced him accordingly.

Arguments heard. Record perused.

The offence of rape has been considered as a very heinous crime in this tradition bound society, where great honour has been given to the woman folk as a whole and to their modesty in particular. A wife is always presumed to consent to intercourse with her husband as long as they are not separated by an order of the court or separation agreement or a decree nisi of divorce or nullity (in the case of voidable marriage). As to intercourse, Section 44 of Sexual Offences Act, 1956 provides that where on trial of any offence under this Act it is necessary to prove sexual intercourse (whether natural or unnatural), it shall not be necessary to prove completion of intercourse by emission of seed, but the intercourse shall be deemed complete upon proof of slight penetration only. The British Parliament gave statutory recognition to a House of Lord''s decision by substituting for Section 1 of the Sexual Offences Act, 1956 and new Section by Criminal Justice and Public Order Act, 1994. This contains a new and expanded definition of rape and it says:

(1) It is an offence for a man to rape woman or another man;

(2) A commits rape if;

(a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and

(b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that persons consents to it.

As regards the offence of rape, in India also, the offence if committed without consent has been made punishable. In any way, the concept of rape, keeping in view the enormous increase of such cases in this country being hot, has developed and undergone various amendments for which Section 114-A of the Evidence Act was inserted. Similarly, noose against the rapist at the place of work by the public servant or police officers was also tightened. Similarly, punishment for gang rape was also added. But, at the same time, misuse of these harsh and draconian provisions is also not unknown. It is normally found in the married ladies so as in the case of prostitutes, ladies of easy virtues or professionals, who are habitual to sexual intercourse join hands with unscrupulous elements and involve the innocent persons to have the vengeance of the previous enmity, grind their own axe or to black mail the rich farmers and businessmen. As such, false implication are coming to light, obviously for the reasons that the Indian culture has been tampered with western culture, due to social culture, education and advancement in the society. The Indian girls like the western women could make false accusations regarding the sexual molestation against opposite sex for several reasons, such as:

(1) The female may be a ''good digger'' and may well have an economic motive - to extract money by holding out the gun of prosecution or public exposure.

(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by fantasizing or imagining a situation where she is desired, wanted and chased by males.

(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.

(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in compromising or embarrassing position, on account of personal or political vendetta.

(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.

(6) She may do so on account of jealousy;

(a) to win sympathy of others;

(b) or upon being repulsed.

Though, false implication was much prevalent in the western countries, yet, India is now no exception, where such cases could be detected. Present is the case where a 40 years old lady, mother of six children, came at the help of her husband for taking vengeance against the accused for the reason that her husband was convicted along with others for causing injuries to the accused of the present case. She not only made allegations of rape, but also caused injuries to herself in order to project that she was actually raped.

While going through the factual background of the case, it would be difficult to believe the prosecutrix. The occurrence in this case took place on 24.9.1996 at about 11.30 a.m.. She states that after the intercourse she became unconscious and her husband Issab came to the field at 1.00 p.m. and brought her to house at 2.30 p.m. They went to lodge the FIR at about 9.30 p.m. which was recorded at 9.40 p.m. on the same day and she was medically examined on 25.9.1996. Dr. Santosh Jain (PW5) has stated that on examination of the prosecutrix, he found the following injuries on her person:

Bluish contusion of 4 cms x 2 cms at the lower right eye lid of right eye.

Multiple bluish contusions about 6 cms x 4 cms on the whole back side of chest.

Bluish contusion on the both shoulders about 3 cms x 4 cms

Bluish contusion on both thighs about 5 cms x 4 cms.

Swelling on the left side of skull and left side of forehead.

Reddish abrasion of 3 cms x 2 cms on the inner side of thigh.

Chest examination: NAD - No injury seen.

Per abdomen examination: NAD. No injury seen on both side of abdomen.

Vagina Examination: External examination

Pubic hair was present. No spot of semen was present on the pubic hair. Labia majora and minora was present normally.

Internal examination

P/V Admitted two fingers loosely into the vaginal orifice. No discharge. Hymen absent. Vaginal Swab taken from the vaginal orifice and handed over to the police. Kamij and Salwar taken and handed over to the police.

Injury No. 1 to 6 fresh.

The doctor further opined that after examining the report of the Chemical Examiner, she was of the opinion that no rape was done. Her this statement that all the six injuries were fresh also goes to show that she was not true to her version. She got herself medically examined after fabricating the injuries. Had these injuries been the result of scuffle or force used by the accused, which allegedly took place 24 hours prior to the medical examination, then the doctor would not have opined the duration of the injuries as fresh. According to the Chemical Examiner''s report, semen was not found on the swabs. At the same time, the doctor has stated that the semen could be found on the vaginal swab within a week. The doctor has further stated that mere presence of semen on the salwar was hardly sufficient to prove that it was the result of sexual intercourse. According to Dr. Santosh Jain (PW5), the injuries found on the person of the prosecutrix were superficial in nature and the same could be possible by fall on a hard surface. As such, no other opinion than one could be formed is that in the light of the previous enmity between the parties, the prosecutrix in a bid to involve the accused in a false case fabricated the injuries so as to project the same as a result of scuffle in the process of the act of rape.

The testimony of the prosecutrix in this case, being 40 years old lady, mother of six children, in the given circumstances of the case, does not inspire confidence. Notwithstanding the fact that; to ask for corroboration to the testimony of the prosecutrix would amount to insult to the injury but at the same time, when the prosecutrix while keeping all her modesties away comes at the forefront to have the revenge, then anything false could be expected from her. While going through her testimony, the same appears to be unreliable. At the very beginning, she has stated that she was given about 50 sticks by the accused, but as per the medical evidence only six minor superficial injuries were detected on her body. In order to confirm the fact that she was given fifty sticks, she goes on to state that the accused continued beating her for half an hour, which at the face of it is highly improbable. She states that there was bleeding from the injury on the forehead, whereas, neither the doctor nor her husband Issab (PW8) supports this fact. Issab states that there was no bleeding from the injuries and no blood had fallen on the spot. Both, prosecutrix and Issab (PW8) state that the broken bangles had fallen at the spot and the police took the same into possession, whereas, ASI Siri Dev states that he did not see any piece of bangles at the spot. Had they been there she must have collected the same.

According to the prosecutrix, the police visited the place of occurrence on the next day at about 3.00 p.m. whereas, the Investigating Officer states that she went to the spot on the next day at 10.00 a.m. She states that the passage is around 1 km away from the place of occurrence, whereas, Issab (PW8) states that the passage is at 2- � acres from the place of occurrence. According to the prosecutrix, she became unconscious after the occurrence and she gained conscious at 1.00 p.m. when her husband came and sprinkled water on her face which totally appears to be a concocted one in order to cover the delay. The prosecutrix states that fodder was brought by her husband on the next day, whereas, Issab (PW8) states that the fodder was brought by him and his wife later on. It is also surprising that she did not raise hue and cry after the incident so as to attract the passersby but has tried to put off the natural circumstance while saying that she lay unconscious. She also tells a lie while denying that her husband was ever convicted on account of the injuries suffered by the accused, whereas the judgment Ex.DC placed on record reveals that Issab along with 15 other persons were convicted on 27.11.1990 by the Judicial Magistrate Ist Class, Ferozepur for the offence under Sections 148/149/323/325 IPC.

Thus, in these circumstances it would be difficult to place reliance on the testimony of such prosecutrix for sustaining conviction of the accused in this case relating to rape. The other weakness of the case is regarding delay in lodging the FIR. The occurrence having taken place at about 11.00 a.m. And she was brought at her house at about 2.00 p.m. The FIR could be lodged promptly i.e. within an hour or so as Issab (PW8) admits that the police station is at a distance of about 5 kms from their village. If they could go to the police station on that very day then they could go there earlier also. Issab (PW8) admits that they had started from the village at 4.00 p.m. to lodge the report. In such a situation, the report could be lodged by covering this distance of five kilometers, at the maximum within one hour, but it is not explained as to where they stayed for remaining four hours.

In the backdrop of the enmity between the parties resulting into causing of the injuries to the accused at the hands of Issab and 15 others. The delay in lodging the FIR becomes doubtful and fatal to the prosecution case. Keeping in view the delay in lodging the FIR and contradictory medical evidence, the court was bound to look for certain corroboration to the ocular version of the prosecutrix but no such corroboration could be made available through the medical or the other circumstantial evidence. In such circumstances, exception to the fact that women in this part of the country are reluctant to level false allegations with regard to molesting their modesty, attempt to rape or rape against the accused, until and unless such incident had happened with them could be traced from the present case but at the same time, this cannot be made a absolute rule, however, exceptions are there in case of married and ladies of easy virtues i.e. why more caution is required while assessing their reliability and trustworthiness. Similar observations were made by the Division Bench of this Court in case State of Haryana v. Dilawar 2009 (3) RCR (Cri) 200.

In the present case, there is delay of 10 hours in lodging the FIR which stands unexplained. There is an extra ordinary delay in getting the prosecutrix medically examined. She appears to have fabricated the injuries in order to support her version with the connivance of her husband. Her testimony does not find any corroboration from medical or other circumstantial evidence. The story put forward by the prosecutrix has not cleared the test of preponderance of probabilities. As such, this Court is of the confirmed opinion that no such incident had taken place and the story appears to have been concocted by her with connivance of her husband to settle the old scores.

In view of the aforesaid discussions, I hereby accept the appeal, set aside the impugned judgment, acquit the accused of the charges framed against him and direct him to be set at liberty forthwith. Bail bond and surety bond furnished by him stand discharged. Fine, if any deposited by him, be refunded.