Salender vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is filed against the conviction and sentence imposed by the learned Additional Sessional Judge, Karnal on the accused for the offences under Sections 376(g) and 506 I.P.C.

According to the case of the prosecution the daughter and son of Darbara Singh returned from the School at about 4.00 p.m. on 2.3.1987 and at about 4.30 p.m. they went to the Burseem field for taking burseem crop. When Meera was cutting the Barseem crop, accused No. 1 came there and caught hold of her and took her behind the sugarcane field dragging her and accused No. 2 caught hold of Vipin, the brother of Meera and accused No. 1 forcibly snapped the string of the salwar of Meera and fell her on the ground and raped her. Thereafter accused No. 2 also committed the rape on Meera. At that time, accused No. 1 caught hold of Vipin and both the accused threatened Meera not to narrate the incident. Thereafter both the accused left the field. Meera and Vipin returned home weeping and narrated the occurrence to their mother Bhajan Devi. During the night accused No. 2 came to the house of victim and threatened the inmates not to narrate the incident to anybody. The father of the victim came back to the village on 10.3.1987. Then the occurrence was narrated to him. Thereafter they went to the Police and reported the matter. On the basis of the report, the FIR was registered.

On the basis of the material, the learned Magistrate committed the case to the Court of Session. The learned Additional Sessions Judge framed charges against both the accused for the offences under Sections 376(g) and 506 I.P.C. The accused pleaded not guilty to the said charges.

In order to prove the guilt of the accused, the prosecution examined 12 witnesses and closed its evidence. After the closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C.

On a consideration of the evidence on record the learned Additional Sessions Judge convicted both the accused for the offence under Sections376(g) and 506 I.P.C. Both the accused were sentenced to undergo R.I. for 10 years and pay a fine of Rs. 1,000/ and they were also sentenced to undergo R.I. for six months for the offence under Section 506 I.P.C.

On the basis of the evidence, the learned Additional Sessions Judge held that the victim girl was below 16 years of age. Even according to the defence, she was about 16/17 years old. As observed by the learned Additional Sessions Judge, the real issue is whether the accused committed rape on Meera, the victim. The victim girl was examined as PW9 and her brother was examined as PW10. The incident is said to have taken place on 2.3.1987, but the report was given to the police on 10.3.1987 i.e. after lapse of 8 days. According to PW9, the victim girl, when she was cutting the Burseem crop, both the accused came there and A1 caught hold of her and took her behind the sugarcane field where he snapped forcibly the string of her Salwar and fell her on the ground and after removing his underwear he raped her and while committing rape he put his hand on her mouth so that she could not raise hue and cry. She further deposed that accused No. 2 caught hold of her brother Vipin. She also deposed that after A1 raped her, A2 also committed rape on her. At that time A1 caught hold of PW10. PW10, the brother of the victim was aged about 10 years. He also deposed to the same effect.

It has come in the evidence that the father of the victim was not at home on the day of the incident. But the grandfather of the victim was present. It does not appear that the matter was reported to the grandfather. According to Meera, PW9 rape was committed on her in the sugarcane field after felling her down. If that is so, there would have been some injury on her body. But there is no evidence to show any injury on the body of Meera. The evidence of PW1, the Doctor, who examined Meera shows that the victim girl was habitual to sexual intercourse. Her evidence further shows that it cannot be said definitely whether intercourse was done with Meera since semen was not detected. Her evidence further shows that she found old healed tears of hymen. She further stated that vagina admitted two fingers. If really Pw9 was raped a week prior to the examination by Doctor, there would have been a fresh healing tears, but according to PW1, hymen showed old healed tears. Thus the medical evidence does not support the case of the prosecution.

Further admittedly there is a delay of one week in reporting the matter to the Police. The said delay has not been explained. When an unmarried minor daughter was raped by somebody, the mother of the victim should have sent a word to her husband to come home. Waiting for the father to come before reporting the matter to the Police appears to the quite unnatural. It is also strange that neither father nor mother of the victim has been examined as witness in this case. According to PW9, immediately after coming from the field on being raped, she informed her mother, but she has not been examined by the prosecution.

On a consideration of the evidence on record, I am of the opinion that no reliance on the evidence laid by the prosecution can be placed to convict the accused. There is no sufficient evidence to convict the accused.

Accordingly, I allow the appeal, set aside the conviction and sentence imposed by the learned Additional Sessions Judge and acquit the accused of the charges framed against them. Their bail bonds stand cancelled.