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Jagdish vs State Of Haryana on 9 January, 2020

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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