CRA-D-831-DB-2017 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-831-DB-2017 (OM)
Reserved on : September 16, 2019
Date of Decision: January 09, 2020
Jagdish …Appellant
Versus
State of Haryana …Respondent
CORAM: HON’BLE MR. JUSTICE RAJIV SHARMA,
HON’BLE MR. JUSTICE HARINDER SINGH SIDHU
Present: Mr. N.S.Shekhawat, Advocate for the appellant.
Mr. Vivek Saini, DAG, Haryana.
***
HARINDER SINGH SIDHU, J.
1. This appeal is instituted against the judgment and order dated
18.07.2017/25.07.2017 rendered by the Ld. Additional Sessions Judge-cum-
Special Court for Heinous Crimes against Women, Hisar in Sessions Case No.136-
SC of 2015, whereby the appellant, who was charged with and tried for offence
punishable under Section 376 IPC and Section 6 of The Protection of Children
from Sexual Offences Act, 2012 and Section 3 of The Scheduled Castes
Scheduled Tribes (Prevention of Atrocities ) Act, 1989 has been convicted and
sentenced as under:
Offence under Section Rigorous Fine In default of
imprisonment payment of fine
376(2)(i) IPC 14 years 10,000/- Two months
4 of POCSO Act 10 years 5,000/- One month
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3 of SC/ST Act 3 years 5,000/- One month
2. The sentences were ordered to run concurrently.
3. The case of the prosecution in a nutshell is that on 02.09.2015
complainant/prosecutrix (name withheld to conceal her identity) alongwith her
family members visited the police station and got recorded her statement to the
police in the presence of Ms.Rekha Mittal, Legal Aid Counsel alleging therein that
she was 7th class pass and used to do labour work. She was unmarried. On
31.08.2015 at about 9.00 AM Sunita wife of Jagdish son of Sheo Chand
(appellant), resident of Gaibipur came to her house and took her mother to her
fields to pick up the cotton crop. While leaving the house, her mother asked the
prosecutrix to get meals for her to the fields. At about 10.30 a.m. the prosecutrix
was taking the meals for her mother to the fields of accused. But she did not
know the exact location of the fields. Therefore, she asked the accused about the
location of his fields but accused intentionally did not disclose the exact location of
his fields. Rather he sent her to the wrong location to mislead her. Accused
reached there prior to prosecutrix. When, the prosecutrix reached near the said
field, he caught hold of her and gagged her mouth with her chunni. Thereafter, he
committed rape with her. He also threatened her with dire consequences if she
disclosed about the incident to anybody. Due to fear, she did not disclose about the
incident to anybody. However on the next day i.e., 01.09.2015 she was suffering
from fever. On being asked by her aunt-Banto she disclosed about the incident to
her. Thereafter the matter was reported to the police. On the basis of this
statement FIR was registered. The matter was investigated. Prosecutrix was
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produced before the Magistrate and her statement under section 164 Cr.P.C. was
recorded. Accused was arrested. Medical examination of accused as well as that
of prosecutrix was got conducted. Site plan of the place of occurrence was
prepared. Statements of witnesses were recorded. The samples collected at the
time of medical examination were sent to the Forensic Science Laboratory
Madhuban for chemical examination. After completion of investigation, challan
was presented to the court.
4. The prosecution examined number of witnesses in its support. The
statement of the accused under Section 313 Cr.P.C. was recorded. He denied the
allegations levelled against him and pleaded innocence. He stated that he had been
falsely implicated in this case. The salwar which was recovered by the police on
06.09.2015 was the salwar of his wife. The color of that salwar was dark brown
and green.
5. The appellant was convicted and sentenced as referred to above.
Hence, this appeal.
6. We have heard learned counsel for the parties and have gone through
the judgment and record.
7. PW1 the prosecutrix deposed that she did not know her date of birth.
She was studying in seventh class. She had left studies in seventh month of year
2015 and had again taken admission in school in January, 2016. On 31.08.2015,
at around 9.00 a.m. Sunita wife of Jagdish (appellant) came to her house and she
alongwith her mother went to the fields to work there. Her mother had asked her
to bring food for her in the fields. Thereafter, after preparing food for her mother,
she left home at around 10.30 a.m. to take over food to her mother. She had no
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idea in which field her mother had gone. Therefore, when she was passing from
the front of the house of Jagdish and saw him standing on the roof, she asked him
as to in which field her mother had gone. He had not disclose the correct field to
her but intentionally sent her to some other field, where he had hidden himself in
the cotton crop. As soon as she reached that field he caught her. He forcibly
broke the string of her salwar. When she tried to raise alarm he gagged her mouth
with her dupatta and ravished her. He also threatened to kill her in case she
disclosed about the incident to anyone. Jagdish had told her that her mother is
working in his field. She went there but could not see her mother. She threw
tiffin there and returned home. She started suffering from fever. When her aunt
Banto inquired from her she disclosed about the entire incident to her the same
day.
8. Next day, she along with her parents and family members went to the
police station where her statement Ex.PA was recorded, in presence of Lady
Advocate, by lady police. It bears her signatures at Point A and Point B. She was
also produced before Judicial Magistrate and her statement was got recorded. She
proved her statement Ex.PB which bore her signature at Point A. She was also
medico- legally examined at General Hospital, Hisar. Police had also taken her to
the place of occurrence and she had shown the place of occurrence to the police.
9. In cross examination, she denied the suggestion that she was more
than 18 years of age at the time of incident. She stated that house of Jagdish was at
a distance of 7 to 8 killas from their house. Her mother had gone to the field at
9.00 a.m. Her mother and Sunita had alone. No other lady was with them. She
stated that the field of Jagdish was near to the abadi. However, she could not tell
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in which direction it was. She stated that Jagdish had one big field of 40 killas.
She had not inquired from her mother in which field she was going for work.
Prior to the incident also her mother used to go for work in the field along with
Sunita. However, she had never gone with them. She stated that there are other
houses near the house of Jagdish but his house is the last one in the abadi. She
could not tell whose fields were situated near the field of Jagdish. She stated that
cotton crop in the field of accused was grown towards the village abadi. The
entire land of Jagdish was of cotton crop. The incident took place in the middle of
the field of Jagdish. Accused had dragged her by holding her hands towards the
field from the rasta for a distance of about 2 killas, where he committed the crime
against her. She had not suffered any injury marks from the crop when she was
dragged. Her clothes did not tear due to dragging as he had dragged her from the
passage of drain. There was no water in the drain. There was only some grass.
Her clothes were smeared with blood. She had not caused injuries to the accused
when he was dragging her as she was holding tiffin at that time. The place where
she was ravished had thick cotton crop which was damaged. She could not raise
alarm when the accused dragged her, as accused had gagged her mouth with one
hand and was dragging her with the other. She was wearing brown coloured
salwar-kameez at the time of the incident. She had not sustained injuries. She had
not raised alarm in the field as she was in bad shape. At that time there was
nobody in the surrounding fields. Her mother was at a distance of 4 to 5 killas
from the place where she was ravished. When accused ravished her, her clothes
were not stained with blood. The house of Banto is just adjoining to her house.
She had returned back from the field at about 11.00 am and Banto was present at
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home at that time. She had disclosed the incident to Banto after 15 minutes of her
return. Banto had informed her family members including her father about the
incident just after the complainant had narrated the incident to her. Village
Giabbipur is at a distance of about 6 kms from Barwala. She stated that they had
all gone to the Police Station on the next day at about 6.00 p.m. and her statement
was recorded about one hour thereafter. Her statement before the Magistrate was
recorded the same day. She was taken to the hospital on the next day at about 3.00
p.m. She stated that she was the third child of her parents and that her eldest sister
was 19 years and had been recently married. Her father is a labourer. On the day
of the incident he was present at home. She denied the suggestion that the accused
had not ravished her as alleged and that he had been falsely implicated at the
instance of her aunt Banto Devi. She denied that Banto had ever fought the
election of Panch or Sarpanch.
10. PW2 Krishan Kumar, JBT Teacher, Government Primary School,
Gaibbipur brought the original admission and withdrawal register of Government
Primary School, Gaibbipur from the year 2009 onwards. As per the record
prosecutrix was admitted in their school in 1st class on 27.07.2009. Her date of
birth was 24.07.2001. Entry in this regard was in the original admission and
withdrawal Register at Serial No.4909 dated 27.07.2009. She remained in their
school upto 29.03.2014. He proved photocopy of certificate issued by
Headmaster, Government Primary School, Gaibbipur Ex.PC, which was true and
correct as per the admission and withdrawal Register. In cross examination he
stated that Chhindo Devi-the mother of the prosecutrix had not produced any
certificate of the Civil Hospital or from any other authority regarding the date of
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birth of prosecutrix. The date of birth was entered as verbally disclosed by her.
11. PW3 Dalip Singh, Patwari stated that on 15.09.2015 he prepared the
scaled site plan Ex.PD on the pointing out of ASI Rajbala with correct marginal
notes. He used the scale 40 karam 1 inch.
12. In cross examination by counsel for accused he stated that police had
accompanied him to the place of occurrence and had pointed out point ‘A’ in
Ex.PD. There was no broken crop of cotton when he visited the place of
occurrence. He had not mentioned the name of the owner of Killa No.149/20 in
Ex.PD. The police has not asked for any Jamabandi, khasra Girdawari or revenue
record regarding this land. The place Ex.PD is adjoining to the village abadi and
there is a thickly populated area.
13. PW4 HC Rakesh Kumar tendered in evidence his affidavit Ex.PW4/A
deposing that on 02.09.2015, he was posted as MHC, Police Station Barwala. On
that day, the Investigating Officer, ASI Rajbala deposited in the Malkhana a parcel
of clothes of the prosecutrix, one parcel containing glass vial pertaining to the
prosecutrix, one envelope containing papers, all sealed with the seal of Doctor. On
06.09.2015, one parcel containing clothes of prosecutrix bearing seal RB, one
parcel containing blood sample of prosecutrix bearing seal of the doctor was
deposited in the Malkhana. On 06.09.2015, ASI Dharambir deposited with him
one parcel containing clothes of accused Jagdish, one parcel containing pubic hair
in glass vial, one parcel containing swab in glass vial and one envelope containing
papers and one parcel containing blood sample of accused Jagdish, all sealed with
the seal of doctor. On 13.7.2015, he handed over these articles to EASI Shamsher
Singh for depositing the same in FSL Madhuban, who after deposit handed over
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the receipt to him the same day.
14. PW5 HC Falel Singh stated that on 6.9.2015 he was posted as Head
Constable in Police Station, Barwala. On that day the prosecutrix was summoned
by ASI Rajbala to General Hospital, Hisar for taking her blood sample for DNA
examination. The attending doctor took the blood sample of prosecutrix which
was taken into possession by ASI Rajbala vide memo Ex.PE. On the same day, the
prosecutrix produced the clothes- one Salwar and shirt, which she was wearing at
the time of occurrence which were converted into sealed parcel sealed with the
seal of ‘RB’ and taken into possession vide memo Ex.PF. Both the sealed parcels
were deposited with MHC on returning to police station.
15. PW6 Babli wife of Harpal aunt of prosecutrix deposed that on
31.8.2015 at about 9.00 am her niece -prosecutrix daughter of Kala had taken the
tiffin for her mother, who had gone to pluck the cotton crop in the field of Jagdish.
Jagdish was standing on the way. Prosecutrix asked him as to where her mother
was plucking the cotton crop. Jagdish hid himself in the fields and he raped the
prosecutrix after breaking the string of her salwar. When the prosecutrix started
raising alarm he intimidated her and gagged her mouth with her dupatta. He also
warned her against disclosing about this act to anybody. After throwing tiffin in
the fields prosecutrix came to her house. Prosecutrix narrated all the facts to her
on 01.09.2015 and she (PW6) disclosed about the entire incident to family
members of prosecutrix. Then they went to police station. Police recorded the
statement of prosecutrix and also got her statement recorded before a Magistrate.
After that the prosecutrix was medically examined in General Hospital, Hisar.
PW6 stated that the police recorded her statement on 02.09.2015.
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16. In cross examination PW6 stated that the prosecutrix had revealed
about the incident to her on 01.09.2015 at about 6.00 p.m. They had all gone to the
police station at around 7 p.m. on 01.09.2015. She stated that she was illiterate.
She did not remember about the dates whether it was 31.08.2015 or 01.09.2015.
On 01.09.2015 the police recorded her statement and of the prosecutrix. She
stated that she had narrated about the incident to all the family members including
her mother-in-law, brother-in-law and parents of prosecutrix. The mother of the
prosecutrix had returned home along with tiffin after the prosecutrix revealed
about the incident. She stated that she had not seen any injury mark on the person
of prosecutrix. Her clothes were not torn. Entire field of Jagdish is at one place.
She denied the suggestion that the prosecutrix had not revealed anything to her or
that the accused had not ravished her as alleged and that she had made up the
entire story to falsely implicate the accused.
17. PW7 Rajesh Kumar, Tehsildar deposed that on 02.11.2015 ASI
Rajbala moved an application Ex.PG for verification of caste of prosecutrix. He
forwarded it to concerned Patwari for report. Patwari Dalip Singh submitted his
report to the effect that prosecutrix daughter of Kala belongs to Odd caste which
has been declared as Scheduled Caste vide notification of Haryana Government.
He proved the report Ex. PG/2 duly counter signed by Ram Kumar Retired
Tehsildar, Barwala.
18. PW8 Gopal, Assistant DC Office, Hisar stated that on 30.10.2015
ASI Rajbala obtained the Gazette notification Ex.PH and same was taken into
possession by her vide memo Ex.PH/1.
19. PW SI Rajbala (Investigating Officer) deposed that on 02.09.2015
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she was present at police station alongwith LAC Rekha Mittal. In her presence
prosecutrix got recorded her statement Ex.PA which was attested by LAC Rekha
Mittal and by her. She made her endorsement Ex.PL and sent the same to MHC
for registration of the case. Special report was sent through special constable.
Formal FIR Ex.PM was registered by SI Satbir Singh. Prosecutrix was produced
before Illaqa Magistrate. Application Ex.PO for recording her statement under
Section 164 Cr.P.C. was moved. After recording her statement under Section 164
Cr.P.C. prosecutrix was taken to Government Hospital Hisar for medico legal
examination. After medical examination cloth parcels were handed over by
medical officer which were taken into possession vide recovery memo Ex.PR.
Thereafter prosecutrix was handed over to her parents vide memo Ex.PS. On
6.9.2015, prosecutrix was produced before medical officer for obtaining blood
sampling for DNA. Medical officer after taking blood sample handed over sealed
blood sample which was taken into possession vide recovery memo Ex.PE which
was handed over to MHC PS Barwala. On same day PW 8 took into possession
clothes of prosecutrix which were worn by her at the time of alleged rape vide
recovery memo Ex.PF. On 30.10.2015 she had taken into possession Gazette
notification Ex.PH/1. On same day she had taken into possession attested copy of
notification Ex.PT by moving application Ex.PU. On same day, she had also
taken into possession certificate Ex.PC by moving application PV to Headmaster,
Primary School, Gabipur. On 2.11.2015, she had taken into possession caste
certificate Ex.PG/2 by moving application Ex.PG/1 and photographs of
prosecutrix and place of occurrence Mark 1 to 3 vide recovery memo Ex.PX.
She also recorded statement of prosecutrix.
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20. In cross examination she stated that the prosecutrix had come to
police station, Barwala on 02.09.2015 at 9.30/10.00 a.m. She was accompanied by
her parents. After recording her statement she was taken for medical examination.
She had not prepared injury report of prosecutrix as there was no injury on her.
The clothes which were worn by prosecutrix were handed over in parcel after
medical examination by doctor. She stated that village Gaibipur is at a distance of
10 km from police station Barwala. She admitted that the alleged place of
occurrence is near village abadi. She denied the suggestion that the investigation
was tainted and that the case was registered against the accused due to party
faction in the village and at the instance of Smt. Babli who is a politician of the
village.
21. PW9 Dr. Anju Arya stated that on 06.09.2015 she was posted as
Medical Officer GH, Hisar. On that day on the request of the police she had taken
blood sample of prosecutrix for DNA and handed it over to the police the same
day.
22. PW10-Dr. Pushpa Lata Bishnoi, Medical Officer, General Hospital,
Hisar tendered her affidavit Ex.PW10/A. She stated that on 02.09.2015 she had
conducted the medico-legal examination of the prosecutrix at 3.30 p.m. The
following observations were made while conducting the MLR:
“xxx xxx xxx
– No external mark of injury present any where on the body of the
victim
– History of taking bath and washing clothes after episode of rape
on 31.08.2015.
Local examination- No mark of injury seen on external genitilia.
Pubic hair trimmed on P/v examination Hymen torn. No bleeding
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present. Tenderness present. Vagina admits one finger with
difficulty. Two vaginal swabs taken handed to police.”
In her opinion the possibility of attempt to rape could not be ruled out.
23. She proved copy of the MLR Ex.PY, the blue colored salwar of the
prosecutrix which had been handed over to the police after medical examination
Ex.P2 and the glass vial Ex.P3. In cross examination, she stated that she had
mentioned the age of the prosecutrix as 14 years as deposed by her parents. She
had not advised to conduct ossification test of the victim to determine her age.
There were no external mark on the body of the victim or external gentilia mark.
She stated that during investigation of the case police did not take her opinion
regarding the possibility of rape on prosecutrix.
24. PW11-Dr. Dharmender Sandhir, Medical Officer, General Hospital,
Hisar tendered in evidence affidavit Ex.PW11/A. Therein it has been stated that
on 06.09.2015 he conducted medico-legal examination of Jagdish. In his opinion
there was nothing to suggest that he could not perform sexual intercourse. He
proved the MLR of Jagdish Ex.P4. He stated that on request of ASI Dharmbir he
had collected blood sample for DNA sample of Jagdish. The same was handed
over to police along with other parcels as mentioned in MLR Ex.P4. He proved
the glass vial containing the blood sample of Jagdish Ex.P5.
25. PW12-Dharambir Singh, Ex-Sub Inspector deposed that on
02.09.2015, he was posted as Sub Inspector at P.S Barwala. On that date, SI Saroj
Bala Investigating Officer of the case recorded the statement of prosecutrix in the
presence of Legal Aid Counsel. Thereafter, medical examination of the
prosecutrix was got conducted in General Hospital, Hisar. After medical
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examination, the doctor handed over the parcels to IO, which were taken into
possession by her vide recovery memo Ex.PR. After medical examination,
prosecutrix was produced before the Illaqa Magistrate where her statement was got
recorded under Section 164 Cr.P.C. Thereafter prosecutrix was handed over to her
parents vide Ex.P5. On 06.9.2015, investigation of the case was entrusted to him.
He produced accused Jagdish before Medical Officer General Hospital, Hisar for
conducting his medico-legal examination. On his request, the Medical Officer took
the blood sample of accused for DNA Test. Thereafter the parcel and blood
sample were taken into possession vide recovery memo Ex.P7. He proved the
glass vial containing blood sample of Jagdish Ex.P8.
26. PW13-Rajbir Singh, DSP Naraingarh deposed that on 02.09.2015 he
was posted as DSP Barwala. On that day, after receipt of special report of the
case, he reached the place of occurrence. He was accompanied by ASI Rajbala,
who prepared the rough site plan in his presence. He had directed ASI Rajbala to
get medico-legal examination of the prosecutrix conducted and also to produce
her before the Magistrate to get her statement under Section 164 Cr.P.C recorded.
On 05.09.2015 when he was present in police station, Barwala, Jagdish accused
was produced by his brother Mahabir. Accused was arrested vide arrest memo
Ex.PK. Upon interrogation, he suffered disclosure statement and led the police
party to the place of occurrence where the offence was committed and demarcated
the same vide memo Ex.PM.
27. In cross examination he stated that he did not sign any document on
02.09.2015 when he visited the place of occurrence along with ASI Rajbala. No
document was prepared by him during the investigation of the case except the
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arrest memo dated 05.09.2015. He denied the suggestion that a false case was
registered against accused under pressure of some politician belonging to Barwala
constituency.
28. Learned Public Prosecutor tendered into evidence report of FSL
(Biology) Ex.P1 and DNA report Ex.PJ. PWs LC Anita Devi, EHC Vinod Kumar,
Inspector Kapil Kumar, Mrs. Rekha Mittal-Legal Aid Counsel, SI Satbir Singh,
Kala, Mindo amongst others were given up being unnecessary.
29. DW1-Ram Niwas Head Teacher, GPS Giabipur, Hisar brought the
admission and withdrawal register from 08.04.2009 till date of Govt Primary
School, Giabipur, Hisar. He proved the attested photo copy of the same as Ex.D1.
As per the said register, Jyoti daughter of Kala Ram and Mindo had passed 5 th
class from the School. Her date of birth was recorded as 27.07.2001. He also
proved her School leaving certificate Ex.D2. In cross examination by learned
Public Prosecutor, he stated that as per the admission form Jyoti was admitted in
Class 1 by her mother. He mother was an illiterate lady as she had affixed her
thumb impression on the application form. No document was attached or referred
to in the admission form on the basis of which date of birth was mentioned in the
form.
30. DW2-Sandeep Kumar, Inspector Food and Supply, Barwala brought
the original record of the Application Form (D-1 Form) submitted by Kala Ram
and D-4 Form Register. He proved the attested copy of D1 Form as Ex.D3 and of
D-4 Form as Ex. D4. As per the same Kala Ram had applied for issuance of
Ration Card for six members out of which two were adult males and four minors.
In this form, the age of the prosecutrix d/o of Kala Ram was written as 12 years at
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point-A in Ex.D3. In cross examination, he stated that the date is not mentioned
in the form as well as in the register. The register pertains to the year 2005 till
date. He could not tell the exact date on which the form was submitted.
31. Ld. Counsel for the appellant has assailed the judgment of conviction
on the following grounds:
(i) As per evidence of PW10-Dr. Pushpa Lata Bishnoi, Medical Officer,
General Hospital, Hisar tendered through her affidavit Ex.PW10/A she had
conducted the medico-legal examination of prosecutrix on 02.09.2015 at 3.30 p.m.
After medical examination she had handed over to the police a dark blue colored
salwar of the prosecutrix. In her affidavit PW10/A she has recorded observation
about history of taking bath and washing clothes after the episode of rape on
31.08.2015. On 06.09.2015 the prosecutrix handed over one salwar and shirt
which were allegedly worn by her at the time when she was ravished. These were
taken into possession by PW8 ASI Raj Bala vide recovery memo Ex.PF. In the
recovery memo Ex.PF it has been recorded that due to fear the prosecutrix had
washed these clothes. As per the FSL report human semen was detected on both
the salwars i.e., exhibit-1 (the dirty dark blue coloured salwar) handed over to the
police by PW10-Dr. Pushpa Lata Bishnoi and exhibit-3a- dirty dark brown
green coloured salwar (handed over to PW8 ASI Raj Bala by the prosecutrix on
06.09.2015 which she was allegedly wearing when she was ravished). Ld Counsel
has argued that it is not possible that semen stains would remain after washing and
secondly how could the semen stains of accused be found on two salwars. He
argued that the entire case against the accused is planted and false.
(ii) As per PW3 Dalip Singh Patwari who prepared the scaled site plan of
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occurrence, the field of Jagdish accused where the incident is alleged to have taken
place, is close to the village abadi and there is a thickly populated area. It is highly
improbable that the rape could have taken place in a thickly populated area close
to the village abadi.
(iii) In her cross examination PW1- the prosecutrix had stated that the
entire land of Jagdish was having cotton crop. The place where she was ravished
had thick cotton crop growing which was damaged. But as per PW3 Dalip Singh
Patwari who prepared the scaled site plan of occurrence on 15. 09.2015 on the
same being pointed out by ASI Rajbala there was no broken crop of cotton when
he visited the place of occurrence. This belies the claim of the prosecutrix
regarding the incident. Further, if in the process of the victim being ravished the
cotton crop was damaged how is it that the victim suffered no injury at all?
(iv) There are material contradictions in the statements of PW1
prosecutrix and PW6 Babli aunt of the prosecutrix. As per PW1 she narrated the
entire incident to her aunt Babli PW6 soon after returning from the fields on
31.08.2015, whereas, according to PW6 the prosecutrix narrated the facts to her on
01.09.2015. Further as per PW1 her statement was recorded by the police on
01.09.2015 whereas according to PW8 SI Rajbala her statement was recorded on
02.09.2015.
(v) The most material witnesses the father and the mother of the
prosecutrix have not been examined.
32. Having carefully considered the submissions of the Ld. Counsel for
the appellant we find no merit in the same.
33. The first contention of the Ld. Counsel regarding human semen being
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detected on both the salwars, all that needs to be noticed is that it was not the case
of the prosecution that the blue coloured salwar which the prosecutrix was
wearing at the time of her medical examination on 02.09.2015 (exhibit-1) was the
salwar which she had been wearing when she was ravished. It was stated by PW1
in her cross examination that she was wearing a brown coloured salwar kameez at
the time of the incident. Hence the reliance by the Ld. Counsel on the observation
of PW10 Dr. Pushpa Lata Bishnoi that there was history of bathing and washing
after the incident on 31.08.2015 also loses significance. Further though human
semen was detected on this exhibit, however there was no amplification of DNA
when the DNA extracted from this exhibit (Item No.1) was subjected to Autosomal
STR analysis by using Identifier Plus Kit. Thus the semen detected on this salwar
has not been connected with accused Jagdish.
34. As per the FSL report in regard to the second salwar- Item No.2
(exhibit.-3a) which was handed over to PW8 ASI Raj Bala by the prosecutrix on
06.09.2015 which she was allegedly wearing when she was ravished the
conclusion was that: “The Autosomal STR analysis conclusively proves that the
DNA profile of seminal stains on item no.2 (salwar) matches with the DNA profile
of source of item No.3 (blood of Jagdish)”
35. Even though human semen stains were found on both the salwars, it
was only the DNA extracted from the salwar which as per the prosecution was
worn by the prosecutrix at the time when she was raped, that matched with the
DNA profile of Jagdish. This conclusively establishes the case of the prosecution.
36. Argument based on the mere recital in the Recovery Memo Ex.PF
that the prosecutrix had stated that due to fear she had washed the clothes and
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hence the semen stains could not remain on the washed clothes cannot help the
accused. First, neither the prosecutrix nor PW8 SI Rajbala were questioned
regarding this. Secondly much depends on the quality and extent of the wash. The
prosecutrix may have only attempted to remove the more visible stains and not
succeeded in removing all. This is all the more clear because as per the FSL
report both Exhibit-3a (the dirty dark brown green coloured salwar) and Exhibit-
3b (dirty blue coloured embroidered lady’s shirt) were dirty and had muddy stains,
quite contrary to a proper wash after which the clothes would be clean and in any
case not have muddy stains. This in fact supports the claim of the prosecutrix that
she was dragged from the passage of a drain by the accused before she was
ravished.
37. The accused has led no evidence to substantiate his assertion in his
statement under Section 313 Cr.P.C that the salwar which was recovered by the
police on 06.09.2015 was the salwar of his wife. This bald assertion cannot be
accepted.
38. The argument that the field of Jagdish accused where the incident is
alleged to have taken place is close to the village abadi and it is highly improbable
that the rape could have taken place in a thickly populated area close to the village
abadi also does not appeal to us. It has come in evidence that the fields of Jagdish
are about two killas from the village abadi. In her cross examination PW1- the
prosecutrix has stated that there are other houses near the house of Jagdish-
appellant, but his house is the last one on the abadi. Jagdish has one big chunk of
land approximately about 40 acres in which cotton was grown. As per PW1- the
occurrence took place in the middle of the field of Jagdish. At that time there was
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nobody in the surrounding fields. He had dragged her for a considerable distance
from the passage of a drain. Obviously, the appellant chose a place where he
would not be visible.
39. The argument of the Ld. Counsel that though as per PW1 the place
where she was ravished had thick cotton crop growing which was damaged. But as
per PW3 Dalip Singh Patwari who prepared the scaled site plan of occurrence on
15.09.2015 on the same being pointed out by ASI Rajbala there was no broken
crop of cotton when he visited the place of occurrence also is not sufficient to dent
the prosecution case. The prosecutrix is a minor girl of about 14 years. She had
gone to deliver food to her mother in the fields and she faced the accused hiding in
the crop who gagged her mouth, dragged her to some distance along the drain and
raped her. She obviously would be in a shock and she cannot be expected to
remember each minute detail regarding the incident. The incident had taken place
on 31.08.2015 whereas the scaled site plan was prepared on 15.09.2015 i.e, more
than two weeks after the incident. Much cannot be made of this discrepancy in the
face of the conclusive evidence against the accused.
40. Similarly, regarding the contradictions in the statements of PW1
prosecutrix and PW6 Babli aunt of the prosecutrix regarding the date and time
when PW1 narrated about the incident to PW6 all that needs to be said is that PW6
has in her cross examination stated that she is an illiterate lady and she did not
remember the dates as she had not refreshed them before making her statement. In
any case these variations are not material and do not dent the prosecution case.
41. Further, the fact that the parents of the prosecutrix have not been
examined does not weaken the prosecution case. It has come in evidence that the
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father of the prosecutrix is a labourer. Her mother often worked in the fields of the
accused. As such she appears to be dependent on the family of the accused for
providing her work. Their house is close to the house of the accused. Though they
have been given up as unnecessary but it is quite possible, that in these
circumstances they may have been reluctant to depose against the accused.
42. There is clear and unequivocal testimony of PW1- the prosecutrix
about the incident. Despite her being subjected to detailed and lengthy cross-
examination, the defence has not been able to dent her version. The FSL report
conclusively establishes that the semen found on the salwar of the prosecutrix was
of the appellant. The fact that the prosecutrix is a minor has been established on
record. Further the fact that she belongs to the Scheduled Caste has also been
established.
43. The prosecution has proved the case against the appellant beyond
reasonable doubt.
44. There is no merit in the appeal and the same is dismissed.
(RAJIV SHARMA) (HARINDER SINGH SIDHU)
JUDGE JUDGE
January 09, 2020
gian
Whether Speaking / Reasoned Yes
Whether Reportable Yes / No
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