Udai Chand vs State of Haryana

A.N. Jindal, J.—Prosecutrix aged about 28 years, resident of Indira Colony, Faridabad was raped at the hands of the accused. Consequently, he was prosecuted, tried and vide judgment dated 14.1.2000 passed by the learned Additional Sessions Judge, Faridabad, convicted and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 2000/-under Section 376 IPC; rigorous imprisonment for six months u/s 342 IPC; and rigorous imprisonment for one year u/s 506 IPC.

Factual matrix of the case is that the prosecutrix (name not disclosed) was residing in Indira Colony, Faridabad along with her children. She was at her residence, while her husband Ashok Kumar being employee at Y.M.C.A. Workshop was on his duty. At about 2.30 p.m. the prosecutrix had gone to fetch water from the public water tap which was near the ration depot of the accused. After visiting the public tap, she went to the accused to enquire about the availability of the kerosene. The accused replied in positive. The prosecutrix intended to go home to bring the container, however, the accused offered to pick up the same from inside his shop. As soon as the prosecutrix went inside the shop, the accused followed her; bolted the door of the shop from inside; made the prosecutrix to lie on the ground and committed rape upon her. Cries made by her fell to deaf ears. After committing rape, the accused threatened the prosecutrix to kill her in case she informed any body and allowed her to go. After her husband returned home from duty, she informed him and then they went to the police station to lodge the report. On the basis of her statement Ex.PG, FIR Ex.PG/1 was recorded against the accused. The Investigating Officer went to the spot; prepared the rough site plan Ex.P1 and took into possession the broken bangles lying at the spot vide memo Ex.PH. The prosecutrix was taken to B.K. Hospital, Faridabad for medicolegal examination where she was examined by Dr. Shashi Bala (PW2) who opined that possibility of rape could not be ruled out. He arrested the accused on 22.7.1997 and got him medico-legally examined. Ultimately, challan was presented against him.

The accused was charged u/s 376/342/506 IPC, to which he pleaded not guilty and opted to contest.

In order to substantiate the charges, the prosecution examined C. Ramphool (PW1), Dr. Shashi Bala (PW2), Dr. D.S. Rathi (PW3), C. Ashok Kumar (PW4), MHC Mukhtiar Singh (PW5), Prosecutrix (PW6), Ashok Kumar (PW7), ASI Rajender Singh (PW8), ASI Narender Kumar (PW9) and ASI Mitrapal (PW10). When examined u/s 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. However, no evidence was led in defence.

The trial ended in conviction.

Arguments heard. Record perused.

Learned Counsel has stressed hard over the testimony of the prosecutrix alleging that her statement is replete with material improvements, contradictions and also does not find corroboration by any independent source, therefore, she does not inspire confidence.

Having closely scrutinized the testimony of the prosecutrix and other evidence on the record, nothing could be detected which may enable this Court to disbelieve her. Both, the accused and the prosecutrix were living in the same vicinity. The accused has not levelled any allegations of enmity, bias, malice or prejudice against the prosecutrix or her husband for implicating him falsely in the case, what to talk of referring to any enmity against the accused. Even not a little finger has been raised regarding any previous quarrel between him or his family members on one side and prosecutrix or her husband on the other side. The FIR in the case is very prompt one and she was also examined forthwith. The occurrence in the case took place on 17.7.1993 at 2.30 p.m. while her husband was on duty. On his arrival, they went to lodge the report. The Investigating Officer Rattan Pal completed her statement at 6.30 p.m. which shows that they must have reached one hour prior to the recording of the statement of the prosecutrix i.e. at 5.30 p.m. The FIR Ex.PG/1 was recorded at 7.00 p.m.

Notwithstanding the fact that the prosecutrix was a married lady and no definite opinion regarding rape could be made on examination of her vaginal orifice but in such cases, the court is to scrutinize the testimony of the prosecutrix, corroborative evidence, the conduct of the accused and attending circumstances of the case in order to reach the conclusion. Dr. Shashi Bala (PW2) has observed that possibility of rape could not be ruled out. She observed that breast, axillary and pubic hairs were well developed. Hook of the blouse and bra-strap were torn. There were some abrasions on the left fore arm and upper chest. She further observed that signs of struggle were present on her body. No such suggestion was given to Dr. Shashi Bala (PW2) that the injuries were self- suffered and the prosecutrix had torn out her bra-strap and blouse hook herself. The prosecutrix has also confirmed this fact that during the occurrence, her blouse was torn by the accused and she also received injuries by the nail on her neck. Further more, on examination by the doctor, the accused was found fit to commit sexual intercourse. Though the accused suggested to ASI Mitrapal (PW10) Investigating Officer that the prosecutrix was a lady of easy virtues, yet, no such suggestion was given to the Prosecutrix (PW6) and Ashok Kumar (PW7). From the fact that the prosecutrix was of easy virtues, the accused could not be extended any benefit out of that and it is not the case of the accused that the prosecutrix was a consenting party. Ashok Kumar (PW7) has also categorically stated that on the day of occurrence, at about 4.30 p.m., when he returned from duty, his wife started crying after seeing him and stated that she was ravished by the accused, then he got registered the case.

Now coming to the testimony of the prosecutrix, the law imposes duty upon the court to rely on the testimony of the prosecutrix alone provided it inspires confidence and to ask for corroboration would amount to an insult to the injury. The facts as set up by the prosecution leading to the commission of rape, seem to be quite probable. It has come in evidence that though the ration card of the family of the prosecutrix was not attached to the depot owned by the accused, yet, they had another ration card belonging to Vinod was with them which related to depot of the accused. In any cae, the prosecution never set up the case that the prosecutrix had gone to fetch kerosene on ration card but the allegations are that she had just gone to enquire about the availability of the kerosene. It is also normally seen that the people get kerosene from the depot holder without ration card while paying a little premium. Further more, though the prosecutrix has admitted that the ration card belonging to them was attached to some other shop and that she never purchased any article from the depot of the accused, yet, this fact is not sufficient to discard her testimony as she had simply gone to enquire about the availability of the kerosene, but it was the accused who had offered to supply her not only the kerosene but also the container which shows his evil designs.

The learned Counsel has also tried to contradict her version while urging that the prosecutrix testified that she was raped in a room at point ''B'' in the site plan, whereas, according to the prosecutrix, she was raped at point ''A'' of the site plan, therefore, she could not be believed.

Having given my thoughtful consideration and having examined the site plan, it would be suffice to say that the discrepancies with regard to the site plan cannot be given much importance as the same is prepared on hear say basis. Even according to the site plan one room of the building was being used for storage of the articles and the other room is used for sitting purpose. The accused had directed the prosecutrix to bring a container from the room inside the building, and not from the room used for sitting purpose. The evidence speaks for itself that she was raped inside the shop and not in the room which was used for sitting purpose. As such, minor discrepancies that she was raped in a room shown at point ''A'' or ''B'' does not make any difference.

The other contention raised by the learned Counsel is that the prosecutrix in her statement u/s 164 Cr.P.C. has stated that she asked the accused about the kerosene when he was present at his ration depot, whereas, in her statement in the court, she has stated that when she was going to his ration depot, he was sitting on a building material shop and on seeing her followed her and came at the ration depot when she enquired from him.

On conspectus of the entire evidence made by the prosecutrix, it comes out that the prosecutrix did not disclose about the actual position of the accused prior to his arrival at his ration depot shop where he asked him about the kerosene. Thus, this mere omission to mention in the statement u/s 164 Cr.P.C. and Ex.PG, as to where he was prior, before her arrival to his ration depot is of no consequence and does not effect the substratum of the prosecution case. Since the prosecutrix has supported the prosecution case in all material particulars, therefore, minor discrepancies would not be of any consequence for placing reliance upon her testimony.

The argument with regard to report of the Chemical Examiner; true that the Chemical Examiner reported that no semen was present on the vaginal swab and the underwear is without merit.

As regards the underwear of the accused, it was taken into possession on22.7.1997, therefore, semen could be made to perish after such a long time. However, with regard to presence of semen on the vaginal swab, that is merely corroborative piece of evidence and mere none presence of semen in such cases is not sufficient to exclude the direct testimony made by the prosecutrix having fell prey at the hands of the accused, the prosecutrix having been ravished by him would be the last person to implicate him falsely while throwing her own repute and modesty in the street. Had there been any element of enmity between the parties, the same could be viewed seriously in the facts and circumstances of the present case but in the absence of any such motive for commission of crime, the prosecution could be said to have proved the case beyond reasonable doubt. The accused has failed to prove his innocence while leading any plausible evidence in defence.

Now coming to the quantum of sentence, keeping in view the nature of allegations, gravity of offence and that the prosecutrix is married lady and that the accused has already suffered a lot due to the pendency of the proceedings since long, the accused could be extended some leniency on the quantum of sentence.

In the peculiar circumstances of the case, the appeal is dismissed with the modification in the sentence which is reduced to three years without alteration in the sentence of fine.

Copy of the judgment be sent to the Chief Judicial Magistrate, Faridabad for compliance.