K.C. Gupta, J.
1. This appeal has been instituted by Aman Kumar against judgment and order dated 20.3.1999 passed by the Additional Sessions Judge, Yamunanagar at Jagadhari, whereby he was found guilty and convicted under Section 376, IPC and sentenced to undergo rigorous imprisonment for 7 years and fine of Rs. 500/; in default of payment of fine, he was further sentenced R.I. for 6 months.
2. Briefly stated, the facts are that on 15.9.1997 at about 2.00 p.m. PW6 Ruksana Khatoon had gone to her fields for answering the call of nature. When she reached near the field of Charri (green fodder crop), the appellant came from the side of railway line. He caught hold of Ruskana prosecutrix by her arm and dragged her to the field of Charri where she was made to fall on the ground. He opened the string of her Salwar and pressed her mouth with one hand and with his other hand, he removed his pant and underwear and also Salwar of the prosecutrix and raped her. She raised an alarm which attracted Wakil son of Mohd. Hanif and her uncle Khalid. They removed the appellant from over the prosecutrix and both were made to wear their clothes. Ruskana prosecutrix was sent along with her uncle Khalid and aunt Balkish to lodge a report in the police station. ASI Tej Singh met them near Hassanpur chowk where she made statement ex. PE on the basis of which formal FIR was recorded. The appellant was also handed over to the ASI Tej Singh.
3. PW8 Dr. (Mrs.) Neenu Ohri medico legally examined Ruskana Khatoon prosecutrix on 15.9.1997 at 10.30 P.M. and found that there was no injury or struggle marks over any part of her body or back. She further found that her vagina admitted two fingers easily and there were no fresh or old tears. She next stated that possibility of Ruskana Khatoon being habitual to sexual intercourse could not be ruled out. She also stated that possibility that she might have been raped could not be ruled out.
4. PW1 Dr. Ramesh Kumar medico legally examined Aman Kumar appellant on 15.9.1997 at 8.15 p.m. and found him fit to perform sexual intercourse. He also found some injuries on the person of the appellant. He stated that several reddish and black spots showing discolouration of skin of variable sizes were present on his back both sides, arms, both upper limbs, on chest and right thigh etc.
5. PW11 ASI Tej Singh recorded the statements of the witnesses. The scene of occurrence was got photographed. He also prepared rough site plan Ex. PF of the place of occurrence with correct marginal notes.
6. After completion of the investigation, challan was put up in the Court of Judicial Magistrate Ist Class, Jagadhari, who vide his order dated 19.11.1997 committed the case to the Court of Sessions.
7. Having made out a prima facie case, the appellant was charged under Section 376 to which he did not plead guilty and claimed trial.
8. In order to prove the allegations, the prosecution examined 11 witnesses.
9. After close of the prosecution evidence, on 11.11.1998, statement of the appellant was recorded under Section 313, Cr.P.C. wherein he denied the prosecution allegations and pleaded false implication. He next stated that he was employed as a Gateman in the railway department at Hassanpur railway crossing. He further stated that two days prior to the occurrence, uncle of the prosecutrix namely Khalid had a quarrel with him as he had closed the railway crossing gate due to the arrival of train. He wanted to cross the railway crossing with his tractor trolley and on account of that dispute, he was falsely implicated in this case at the instance of Khalid uncle of the prosecutrix. In defence, he examined Dr. (Mrs.) Neeru Ohri as D.W.1. She stated that she had seen the report of the Forensic Science Laboratory Ex. DA and in view of this report, it was doubtful that Ruskana Khatoon had been raped. In crossexamination, however, she stated that absence of semen on the swab was not the final word to say that rape had not been committed.
10. DW2 Mahender Singh stated that a dispute had taken place between appellant and some residents of village Hassanpur at 2.00 p.m. on 15.9.1997 and disputes also used to take place earlier between them and then appellant Aman Kumar was taken away by the residents of village Hassanpur to the village. The appellant also produced the photostat copy of the entry of birth report Ex. DB of the prosecutrix and closed the defence evidence on 18.3.1999.
11. After hearing learned P.P. for the State and the learned defence counsel, the learned Addl. Sessions Judge, Yamunanagar at Jagadhari vide his judgment dated 20.3.1999 found the appellant guilty and convicted him under Section 376, IPC and sentenced him vide order of even date as stated in the earlier part of the judgment.
12. Aggrieved by the said judgment and order, the accused has filed the present appeal.
13. I have heard Mr. Mahavir Sandhu, learned counsel for the appellant, Mr. Sudhir Nehra, learned AAG, Haryana and carefully gone through the file.
14. Ex. DB is the photo copy of the entry of birth Register. It shows that Ruskana Khatoon prosecutrix daughter of Talib son of Rashid, was born on 30.9.1979. This shows that she was aged about 17 years and 350 days at the time of occurrence on 15.9.1997 i.e. at the time of occurrence, she was less than 18 years of age.
15. PW6 Ruskana Khatoon prosecutrix stated that about 8 months prior to her recording statement in the Court on 12.5.1998, she had gone to the fields to answer the call of nature. When she reached near the Charri field, then the appellant came there and caught hold of her and took her inside the Charri crop and made her to fall on the ground. She next stated that appellant opened the string of her Salwar with one hand and with the other hand he pressed her mouth. She further stated that the appellant laid over her and raped her. She next stated that she had raised cries and on hearing her cries, her uncle Khalid and one Wakil came at the spot and they lifted the appellant from over her and made her to wear her Salwar and the appellant was also made to wear his underwear and pant and then she was sent with her uncle Khalid and aunt Balkish to the police station on foot that as they could not get any conveyance but the Thanedar met her near Hassanpur chowk, where she made statement Ex. PE which was read over to her and she thumb marked the same in token of its correctness. She further stated that Akram and Mohd. Ali had also come to the spot on hearing her cries. She also stated that since the appellant had already been apprehended, so, he was also handed over to the police. She next stated that she was medicolegally examined.
16. Her statement is corroborated by PW7 Wakil Hassan. He stated that on 15.9.1997 about 2 or 2.30 p.m. he and Khalid were sitting on the out skirts of the village and on hearing the cries, they went towards the fields and saw that appellant was committing sexual intercourse with the daughter of Talib Hassan in the field of Charri belonging to Talib Hassan. He next stated that he removed the appellant from over Ruksana Khatoon by catching his shirt. The appellant tried to run away but was over powered. He further stated that they made the appellant as well as the prosecutrix to wear their clothes. In the meantime Mohd. Ali and Mohd. Akram also came to the spot. He next stated that he along with the prosecutrix and other persons went to the police station but the police met them hear Hassanpur chowk where the appellant was handed over to the police and statement of Ruskana Khatoon prosecutrix was recorded.
17. Both these witnesses were subjected to lengthy crossexamination but the learned defence counsel has not been able to point out any material discrepancies which could show that their statements are not believable. A suggestion was put to PW6 Ruksana Khatoon prosecutrix, that when the witnesses reached the spot, she as well as the apellant were wearing their clothes, meaning thereby that the learned defence counsel wanted to suggest to PW6 Ruksana Khatoon prosecutrix that she was a consenting party to the act of coitus with the appellant. Thus, the presence of the witnesses as well as that the appellant had done sexual intercourse with Ruksana Khatoon prosecutrix is admitted. It is true that the prosecutrix did not suffer any injury during the act of coitus. Since, the occurrence had taken place in the field of Charri, so, it is not surprising if she had not suffered any injury because Charri crop is soft in nature.
18. Counsel for the appellant next contended that the prosecutrix had told she was wearing 2/3 bangles in her right which were broken but the same were not taken into possession by the police and she did not suffer any injury on her right arm. It is not necessary that prosecutrix must suffer injuries if the bangles are broken. If the police had not taken those broken pieces of bangles into their possession, then it was a lapse on the part of police and not on the part of the prosecutrix. She had admitted in her abetment that she did not give any nail or tooth biting to the appellant as she was over powered and further that she was ill at that time. Since, the appellant was stated to be a person of stout health and the prosecutrix was weak being a girl of 17/18 years and also that the appellant had overpowered her, so, she could not resist the act of the appellant.
19. Counsel for the appellant next contended that it was admitted by PW6 Ruksana Khatoon prosecutrix that she had pushed the appellant with her hand and he fell away at some distance but still she did not run away and this only showed that she was a consenting party. In my opinion, the contention of the learned counsel is not tenable. It is in her evidence that although she had given a push to the appellant with her hands and he fell at some distance, but he did not leave her hand. Thus, she could not run away as she was still under the control of the appellant.
20. Learned counsel for the appellant also contended that underwear or Salwar of the prosecutrix or from the swabs which were taken from the vagina of the prosecutrix, no semen was detected and it only showed that no sexual intercourse was done with her. Again in the absence of semen, it cannot be held that she was not sexually assaulted.
21. Counsel for the appellant further contended that the appellant had been falsely implicated at the instance of Khalid, uncle of the prosecutrix, with whom he had a quarrel on account of opening of gate of railway crossing. It is difficult to believe that at the instance of Khalid, father of the prosecutrix will falsely implicate the appellant. Admittedly, she was an unmarried girl and her father could not have put the honour of an unmarried daughter at stake, at the instance of a third person. Moreover, evidence of DW2 Mahender Singh shows that appellant had a quarrel regarding opening of railway crossing gate, with the residents of village Hassanpur and not Khalid alone. Thus, the defence version is not at all relevant. Moreover PW6 Ruksana Khatoon prosecutrix had no ill will to falsely implicate the appellant. Although her statement does not require any corroboration yet it is corroborated by PW7 Wakil Hussan who had removed the appellant from over the prosecutrix by catching his shirt and he was overpowered at the spot.
22. Learned counsel for the appellant has cited a number of authorities i.e. Gurdial Singh and another v. The State of Punjab, 1980 PLR (P&H) 108; Sardara v. The State of Haryana, 1980 PLR 220; Ranbir Singh v. The State of Haryana, 1988(1) RCR 243 ;Charan Singh and another v. The State of Haryana, 1988(2) RCR 6; Ajmer Singh and another v. The State of Haryana, 1989(1) RCR 160 ; Gurjinder Singh v. The State of Punjab, 1998(2) RCR(Crl.) 178; State of Rajasthan v. Munsi alias Yonus, 2001(3) RCR(Crl.) 613 and number of other authorities to contend that if there was no mark of struggle on the person of accused of prosecutrix or any injury to her private parts or the buttocks or she was habitual to sexual intercourse, then it should be presumed that she was a consenting party and statement of the prosecutrix was not to be believed. In my opinion, the contention of the learned counsel is not tenable. The occurrence had taken place in the Charri field and it is certainly a soft crop and it acts like mattress and as such, there was no question that prosecutrix must suffer any injury. Moreover, she stated that she was ill on that day and the appellant was having stout health and he overpowered her and therefore, she could not offer any resistance. So, there was no question of her receiving any injury. The fact that the prosecutrix was habitual to sexual intercourse does not give any license to the appellant to rape her.
23. The appellant appears to be a very cunning type of person. He had given an application that Ruksana Khatoon was his wife and Suleman and Wakil Hassan had developed illicit relations with her and kept her illegally. He made this application to Sessions Judge. Jagadhari on 15.11.1998. On 25.11.1998 he made another application that Shashi Bala was his wife and five persons i.e. Daljit Singh etc. has raped her, so, action be taken against them. It suggests that he had falsely alleged that Ruksana Khatoon prosecutrix was his wife and on the other hand one Shashi Bale was his wife. This he had done in order to hoodwink the Court. In my opinion, he had been rightly found guilty and convicted under Section 376, IPC and sentenced. Therefore, no case is made out for reduction of the sentence.
24. In view of my above discussion, the appeal fails and the same is dismissed.
