K.S. Garewal, J.@mdashHem Raj and his wife Swaran Devi were tried by the learned Additional Sessions Judge, Ropar for offence u/s 376/323/506/34 IPC and vide judgment dated August 11, 1994 Hem Raj was convicted on both counts and sentenced to undergo three years rigorous imprisonment u/s 376 IPC and one month u/s 506/341 PC. Swaran Devi was convicted u/s 323/506 IPC and was given the benefit of suspended sentence and probation. Both Hem Raj and Swarna Devi have filed this appeal to challenge their conviction.
2. Sunita Rani was a neighbour of the appellants in a locality known as Balmiki Majri. It appears that Hem Raj was employed as a Driver with the Chandigarh Transport Undertaking and in November 1989 he had managed to secure employment for Sunita Rani in his office on daily wages. Sunita Rani''s services were terminated after six months. The two of them remained on good visiting terms. According to Sunita Rani Hem Raj kept giving her an assurance that he would get her re-employment. On June 3, 1992 at about 7.30 P.M. Sunita Rani was called by Hem Raj to his house to discuss her employment prospects. At that time Swarna Devi and her children were not present in the house. Hem Raj took Sunita Rani inside the house and after overpowering her had sexual intercourse with her against her wish. After about ten minutes Swarna Devi returned home and when Hem Raj opened the door, she and Hem Raj had some discussion on the side and then they started beating Sunita Rani. They boxed her in the abdomen and pulled her hair and also threatened her that is case she disclosed the episode to anyone they would kill her. The complainant''s cries attracted Nathi Ram and Manohar Lal who rescued her from the accused. The complainant narrated the occurrence to her family and on the following day her father convened a meeting of the residents of the locality and all of them went to the Police Station, Kharar where a written complaint was filed. Hem Raj was summoned to the police station and made to sit there for two days but no action was taken against him by the police. The complainant then moved an application before the Judicial Magistrate, Kharar on June 9 and on the basis of the order of the court she was medico-legally examined on June 10 at 10.30 A.M. but still no action was taken. This led the complainant to file a complaint on July 18. 1992 before the Judicial Magistrate, Kharar. After recording preliminary evidence the learned Magistrate summoned the accused appellants and committed their case for trial to the court of Session. At the trial charge was framed against them u/s 376 IPC and also u/s 323/506 read with Section 34 IPC. The accused pleaded not guilty and claimed to be tried.
3. The prosecution examined Sunita Rani (PW1), Nathi Ram (PW2), Hari Ram (PW3) and Dr. Usha Rani (PW4). After completion of the evidence the accused were examined without oath u/s 313 Cr.P.C. They denied the various items of prosecution case against them. Hem Raj''s defence was that he had been falsely implicated at the instance of Hari Ram and Nathi Ram who joined hands with Sunila Rani. The learned trial Judge accepted the prosecution version and convicted the appellants.
4. A close scrutiny of the prosecution evidence would show that on the date of the occurrence when Hem Raj was alone in his house, Sunita Rani was called by him on the pretext that he wanted to discuss with her employment prospects. When Sunita Rani entered the house only to be told that they had gone to bazaar. Sunita Rani went inside the house where Hem Raj forcibly raped her inspite of Sunita Rani putting up resistance. When Swarna Devi returned home with the children she along with her husband Hem Raj severely beat Sunita Rani.
5. It seems that Sunita Rani had secured employment through the good offices of Hem Raj with the C.T.U. in November 1989 and they were both on visiting terms. It is probable that Sunita Rani may have agreed to have a quiet sexual encounter with Hem Raj when Hem Raj''s wife and children were out of the house. The matter may not have been even noticed had Swarana Devi not returned home and caught her husband lying with another woman and feeling a sense of outrage beat up the other woman while her husband also joined in the act to show that he was an innocent victim. Sunita Rani was 29 years of age and according to the evidence of Dr. Usha Rani (PW4) Her Vagina admitted two fingers easily and she had been habitually performing sexual intercourse. There was nothing whatever in the medical evidence to suggest that she had been forcibly raped. She had no visible injuries on her person.
6. In view of the above, it seems that the case was not at all of rape but of consensual intercourse. Consequently, Hem Raj appellant is hereby acquitted under 376 IPC. However, conviction u/s 323/506 IPC shall stand. The appellant is awarded suspended sentenced and shall be released on probation of good conduct u/s 4 of the Probation of Offenders Act, 1958. He shall execute a personal bond in the sum of Rs. 10,000/- with one surety in the like amount undertaking that he shall be of a good behaviour and shall keep the peace for one year and shall receive sentence as and when called upon to do so during this period.
Swarna Devi''s appeal is without merit and is dismissed.
The appeal stands disposed of in the manner indicated above.
