State of Haryana vs Mian Singh

S.D. Bajaj, J.

The long and short of the prosecution case set up against the accused is that around noon time on 3rd November, 1980 while prosecutrix was cutting Barseen on chaff cutting machine placed in the agricultural fields of her father in village Barna District Kurukshetra of Haryana State, accused Mian Singh alias Chhanga approached her and offered her his personal help in grass cutting operations. When the prosecutrix Smt Sona spurned his offer. The accused caught hold of her arms felled her on the heap of parali nearby, gagged her mouth by putting a piece of khes therein, opened the string of her salwar forcibly without her consent and committed rape on her. On hearing the noise raised by the prosecutrix PW6 Abbey came there to and on seeing him the accused made good his escape from the place of occurrence.

On being charged with the commission of the offence under section 376 of the Indian Penal Code accused Mian Singh alias Chhanga pleaded not guilty. thereto and claimed to be tried. Vide its impugned judgment dated January 7, 1982 learned trial court acquitted the accused holding that the prosecutrix was more than 19 years of age on the date of the occurrence and was also a consenting party to the sexual act. Feeling aggrieved from the judgment of acquittal the State of Haryana has filed Criminal Appeal No. 342DBA of 1982 in this Court.

We have heard Shri J.S. Dhillon, AAG Haryana for the appellant State, Shri H.S. Gill, Sr. Advocate, with Shri G.S. Gill, Advocate for the respondent and have carefully perused the relevant record.

Reasons for recording acquittal are obtaining in paragraphs 10 and 11 of the impugned judgment of the learned trial Court. Relevant paragraphs aforesaid read. :

"10. A perusal of the above evidence of PW5 Sona and PW6 Abbey would reveal that no reliance can be placed on the testimony of witnesses to hold that the accused committed sexual intercourse with Shrimati Sona forcibly against her will and consent. It is mostimprobable that the accused would commit the same at day time at 11/12 noon during winter season in the open, without the consent of the prosecutrix. According to her, the whole occurrence continued for about one hour. This again is most improbable as, if he was committing the act against her consent, he would not take such a long time to complete the act. Again, she has stated that the accused had removed her garara after untying the same but she did not give any slap or flit blows to him. This would indicate that the act was not done without her consent. Again, if her mouth was gagged by the accused, it is most improbable that she would be able to raise alarm, after removing the gag, so as to attract PW6 Abbey at the spot. This appears to have been introduced to make it look like a case of rape. PW6 Abbey has stated that he heard the cry `mardia, mardia, whereas PW5 Sona had nowhere stated that she had uttered these words. Further, the evidence of PW6 Abbey does not inspire confidence as he has stated that he saw the accused, lying on the prosecutrix, from a distance of 1/2 paces. If that is so, it is doubtful, if be would let the accused run away, after allowing him to wear his kachha and take away his other clothes.

11 The conduct of PW5 Sona and PW6 Abehy in going to Lachhman lambardar also appears to be unnatural, in as much as, it such an incident had occurred, PW5 Sona would, have first gone to her house, or to her uncle, who was working with Lachhman. It has come in the statement of PW6 Abbey that her uncle was available nearby, but he was not called, when Sona PW narrated the entire occurrence to Lachhman. This is again most unnatural."

First Information Report in respect of the alleged occurrence taking place around noon time on 23rd November, 1980 was got recorded at 5.15 p.m. on 24th November, 1980 i.e. nearly 30 hours after the occurrence.

In almost similar, circumstances their lordships of the Supreme Court observed in Partap Misra and others v. State. of Orissa, AIR 1977 SC 1307 :

"Consent of the lady is apparent when the prosecutrix silently abided to have the intercourse with the appellant without putting up any resistance, except shouting and when particularly the prosecutrix was a fully grown up lady and experienced in sexual intercourse.

The medical evidence, therefore clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the appellant. From this the only irresistible inference can be that the prosecutrix was a consenting party which would be reinforced by other circumstances."

Regarding inordinate and unexplained delay, of 30 hours in lodging the First information Report their lordships of the Supreme Court observed in Thulia Kati v. State of Tamil Nadu, AIR 1973 SC 501, "Delay of 20 hours in recording the FIR when the place of occurrence is only two miles from the Police Station makes the FIR doubtful".

In view of the matter Criminal Appeal filed by the State of Haryana is rendered wholly without merit and is consequently dismissed.