S.C. Malte, J.
1. The appellant was convicted under Section 376 IPC and was sentenced to suffer rigorous imprisonment for seven years and fine of Rs. 500/, in default rigorous imprisonment for six months. He further came to be convicted under Section 506 IPC and was sentenced to suffer rigorous imprisonment for three years. The substantive sentences are ordered to run concurrently.
2. Briefly stated the prosecution case is as follows :
Prosecutrix Usha Rani was staying with her parents and other relatives at village Kheri Jattan. As per the version in the FIR, her younger brother Rajnish was admitted in the hospital at Kurukshetra and, therefore, her parents had gone there to attend him. Thus, during the night of 11th and 12th June, 1992, she along with other family members were sleeping in the courtyard. The other persons sleeping by her side were one girl Suman, aged 11 years, and Parvesh aged 4 years. At about midnight, prosecutrix was awakened on realising that her mouth was gagged by someone. She then noticed that accusedappellant Amarjit had gagged her mouth. He then brandished a knife and threatened with dire consequences if she raised alarm. Thereafter Usha Rani was taken inside a room beyond the courtyard and was made to lie on the cot. Allegdly, thereafter he opened the string of the salwar and raped her against her wishes. In the course of these events, Usha Rani was successful in removing the cloth from her mouth and could raise alarm. Thereupon accused tried to put back the cloth to gag the mouth, but prosecutrix resisted it by turning her face from side to side. In that process she sustained some abrasions on the neck. On hearing cries, neighbours Ram Singh, Jagiro wife of Ram Singh and another Jagiro widow of Surjan, and the above mentioned girl Suman woke up and came to the spot. On seeing them approaching, accused fled away. The witnesses who had thus arrived at the spot advised Usha Rani to wait till her parents came back from Kurukshetra. On the following noon, the father of Usha Rani came home. Usha Rani narrated the incident to him. Thereupon they both went to the Police Station and lodged the FIR. The FIR thus came to be registered at 3.30 PM on 12.6.1992. The Police Station is at a distance of about 10 kilometres from the scene of occurrence.
3. After investigation the police submitted chargesheet in the Court. Accused pleaded not guilty to the charge. After completion of evidence accused was questioned under Section 313 Cr.P.C. He denied the prosecution case in toto and claimed that he was being falsely involved. The learned Additional Sessions Judge, Karnal, found him guilty as stated above and convicted him.
4. Counsel for the appellant submitted before me that the medical evidence clearly shows that the prosecutrix was between the age of 161/2 to 17 years. I find that the conclusion had been arrived at on the basis of ossification test only. Needless to say the ossification test gives only approximate age group. The prosecution has led the evidence of PW4 Kesho Ram to establish the birth certificate of Usha Rani. His evidence indicates that on 13.1.1976 one daughter named Kimla was born to one Rameshwar of village Kheri Jattan. It may be mentioned that Rameshwar has only one daughter who is present prosecutrix Usha Rani. It, therefore, appears clearly that Usha Rani was named as Kimla at the initial stage soon after her birth, and in the course of events she was named as Usha Rani. Even counted from that date, the age of the prosecutrix would be about 16 years five months. On this premises, it was submitted that possibility of prosecutrix being consenting party assumes importance. It was submitted that since there was no injury on the genital of the prosecutrix, and since there were no other injury consistent with the forceful sexual intercourse, the possibility of the prosecutrix being consenting party cannot be ruled out. In that respect my attention was also invited to the fact that one of the eyewitnesses, who had come soon after hearing of the shouts, has not supported the prosecution. It may be recalled that on hearing the shouts, two ladies, namely, Jagiro wife of Ram Singh and Jagiro widow of Surjan (PW 10) and girl Suman aged 11 years appeared at the scene of occurrence. Out of these, Jagiro wife of Ram Singh was dropped by the prosecution by simply informing the Court that she was won over by the accused. It is surprising that the Prosecutor incharge of the case adopted such a novel method to brand a witness as hostile witness without any material to substantiate such a plea. It has been repeatedly observed by this Court and also by the Apex Court that dropping to a witness by simple intimation to the Court that the witness was won over, (sic) justify the action. There should be (sic) resiled from his or her previous statement recorded under Section 161 Cr.P.C., and thus has shown the tendency to suppress the truth. Such witness should, therefore, be placed in the witness box, and if in the course of evidence he indicates his noncooperation to the prosecution by resiling from the previous statement, the witness can be crossexamined with the permission of the Court as per Section 145 of the Evidence Act. Impeaching the credit of a witness is also possible in a manner indicated in Section 155 of the Evidence Act. The previous statement recorded under Section 161 Cr.P.C. can be confronted to the witness under Section 145 coupled with Sections 154 and 155 of the Evidence Act. Unless there is sufficient material to consider that a witness was suppressing the truth, it would not be possible to justify the dropping of a material witness. It may be mentioned here that the other witness Jagiro widow of Surjan (PW10) turned hostile to the prosecution and came to be crossexamined by confronting the statement recorded under Section 161 Cr.P.C., which were inconsistent with the statements made during the deposition. Thereby it was clearly indicated that the witness was capable of making discrepant statement on two different occasions. That was an indication that she was not wiling to tell the truth. The third witness, namely, child Suman was also not examined by the prosecution for the reasons best known to the prosecution. It may be mentioned that Suman was one of the persons who was sleeping by the side of the prosecutrix while in the courtyard. From courtyard the prosecutrix was taken to the interior room where she was, allegedly, subjected to rape. Therefore, Suman would be one of those first persons who would have certainly thrown light as to the sequence of events. That would have also corroborated the prosecutrix on the point that she had raised shouts and thus resisted the commission of rape.
5. Under the circumstances, the only piece of evidence that deserves serious consideration is that of the evidence of the prosecutrix. The evidence of her father Rameshwar Dass would deserve attention to ascertain whether the prosecutrix made grievance to her father soon after his arrival from Kurukshetra. Such a disclosure on the part of the prosecutrix would be relevant under Section 8 of the Evidence Act. Illustration (j) under Section 8 of the Evidence Act cover such conduct and carry its own weight. The prosecutrix in her deposition has categorically stated that accused gagged her mouth and forcibly took her in the adjoining room beyond the courtyard. While her mouth was thus gagged, he removed her salwar and committed rape. The prosecutrix further claims that in the course of incident, she could remove the cloth that gagged the mouth and could raise the shouts for help. Thereupon the accused again tried to gag her mouth and the prosecutrix tried to resist it by turning her face from one side to another. She further states that in the course of that she sustained injuries to her neck. In so far as these pieces of evidence pertaining to the resistance is concerned, the evidence of the prosecutrix is further supported by the evidence of Dr. Mrs. Vinod Girotra (PW5). Her evidence indicates that on examination of the prosecutrix at about 8.30 PM on 12.6.1992 she found (i) bright red contusion 2 cm x 1 cm, on the base of the right side of the neck, (ii) bright red contusion 1 cm x half cm on the base of the left side of the neck, (iii) bright red contusion 1 cm x half cm on the left mandibular area. These injuries are quite consistent with the case of the prosecutrix that she resisted. However, the prosecution evidence fall short to show that there was penetration of the male organ. The evidence of Dr. Mrs. Girotra indicates that there was no injury on the genitals. The hymen was "normal" and the internal portion of the vagina mucous membrane was intact. The clothes of the prosecutrix were also sent to the Forensic Science Laboratory, and the results show that semen was not detected on any of those clothes. The doctor says that the prosecutrix was then in the menstruation. She found that there was bloodstrains on the piece of cloth under the underwear. In all probabilities, the menstruation might have coincided with the events. That explains why the prosecutrix at one point of her deposition ventured to state that there was bloodstains on the carpet where incident took place. The investigating officer says that there was no such bloodstains. Some such discrepancies are accountable to the inadvertent answers given by the witnesses out of some guess work. That does not necessarily indicate that the witness was a liar.
6. The evidence of the prosecutrix is further supported by the testimony of her father Rameshwar Dass PW12. He states that after his arrival from the hospital, he found that his daughter Usha Rani was weeping. Thereupon she narrated the incident to her father. The father then took her daughter to the Police Station and her FIR came to be recorded. In respect of that piece of evidence the only comment was that the time of his arrival at the residence and the time of the reporting the matter to the police as given by him, did not tally with the time of such events stated by the prosecutrix. In my opinion, mere such discrepancies would not be quite enough to brush the prosecution evidence in toto. It may be mentioned that accused is the nephew of Rameshwar Dass. There was nothing to indicate that Rameshwar Dass would be out to involve his nephew at the cost of reputation of his daughter Usha Rani. It may also be recalled that Usha Rani was till then unmarried. In the present set of social conditions one can imagine the risk that a father would run by imputing commission of rape by his nephew on his daughter.
7. I thus find that the evidence of prosecutrix Usha Rani finds sufficient support from her father Rameshwar Dass. Nonetheless, the medical evidence, however, militates against the case of penetration and thus, commission of rape. The prosecution, therefore, was successful in establishing the case to the extent of attempt to commit rape. the counsel for the petitioner brought my attention to a case of State of Haryana v. Matru, 1996(1) RCR 718 . In that case their Lordships of this Court were of the view that since the rape could not be proved on the ground that the witnesses were not reliable, the same set of witnesses would not be helpful to spell out the offence under Section 376 read with 511 IPC. On perusal of that case, I find that in that case there was absolutely no injury on the person of the prosecutrix. Their Lordships, therefore, found that in the absence of proper corroboration, the evidence could not be accepted. In the present case of the prosecution is sufficiently linked and corroborated to the extent of resistance offered by the prosecutrix in the course of attempt to commit rape on her. The finding of rape could not be recorded because the medical evidence was not supporting. Thus, in this case a part of the evidence could be accepted on finding that it was sufficiently corroborated by independent evidence. I, therefore, hold the accused guilty under Section 376 read with Section 511 IPC.
8. The question now remains regarding the quantum of sentence. As per Section 511 IPC, in a case of attempt to commit an offence, the extent of punishment would be half of the sentence prescribed under the main offence. In this case the accused was sentenced to seven years, as stated above. He was behind the bars for about four months and seven days during the trial, until he could be released on bail. Soon after conviction on 10.9.1994, till this date he is behind the bars. In my opinion, the sentence thus undergone by him under Section 376 IPC would be enough to meet the ends of justice. In addition to above, I maintain the fine of Rs. 500/ that was imposed initially and in default of payment of fine, he shall undergo rigorous imprisonment for one month.
9. Inso far as it pertains to offence under Section 506 IPC, I find that there is no convincing evidence that at the point of knife and the threat to kill, the accused ravished the prosecutrix. The prosecution has led the evidence regarding recovery of knife at the instance of the accused. There is nothing to show that the knife thus recovered was the weapon of offence. The accused, therefore, gets benefit of doubt in respect of his conviction under Section 506 IPC. The conviction and sentence in that respect is set aside.
10. Thus, with the modification as regards sections under which the accused was sentenced, and the quantum of sentence, as mentioned above, under Section 376 read with Section 511 IPC, this appeal is disposed of.
