CRIMINAL APPEAL None on 5 November 1998

1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ?allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest ?

CORAM :HON'BLE MR. JUSTICE MOHINDER PAL.

Present:Mr.Nikhil Batta, Advocate,Amius Curiae, for the appellant.

Ms. Sushma Chopra, Additional Advocate General, Haryana.

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MOHINDER PAL, J.

This appeal is directed against the judgment ofconviction and the sentence order dated 5.11.1998 passed bythe learned Additional Sessions Judge, Narnaul, whereby Dhirualias Manbir (appellant) was convicted under Section 376 read

with Section 511 of the Indian Penal Code (hereinafter referredto as `the Code') and sentenced to undergo rigorousimprisonment for three years and to pay fine of Rs.2,000/-, indefault whereof to undergo further rigorous imprisonment for threemonths.

The instant F.I.R was registered against the appellanton the basis of the statement made before the police by theprosecutrix, a married lady, (name withheld) wherein she statedthat on 1.10.1997 at about 10 A.M, when she was presentalone at her house, the appellant came to her house; that hetook her in the `Bara' where the lambs were confined; thatthereafter he took her in the `Turi Wala Chappar' and strippedher, gagged her mouth, made her lie on the ground and tried tocommit rape upon her; and that she resisted and cried forhelp. She further stated that, in the meanwhile, her mother Smt.Maina Devi came after collecting the fodder from the fields andthat on seeing Smt. Maine Devi the appellant ran away from thespot. Smt. Mafia, aunt of the prosecutrix, her uncle Maksud andDharambir, who had been attracted to the spot, had seen theappellant running away from the spot.

After completion of investigation, challan was presentedagainst the appellant in Court.

The accused was charged under Section 376 read withSection 511 of the Code. He did not plead guilty to the chargeand claimed trial.

In order to prove its case, the prosecution examined

Sub Inspector Balbir Singh (P.W.1), Constable Bhim Singh(P.W.2), Constable Mahesh Kumar (P.W.3), Smt. Maina (P.W.4),Dharambir (P.W.5), Smt. Mafia (P.W.6) and Assistant Sub InspectorSube Singh (P.W.7).

Statement of the accused-appellant was thereafterrecorded under Section 313 of the Code of Criminal Procedurewherein he denied the prosecution allegations and pleadedinnocence. The appellant examined Amar Singh (D.W.1) andGaje Singh (D.W.2) in his defence. Both the defence witnessesstated that the prosecutrix was mentally deranged from herchildhood; that the mother of the accused had lent Rs.5000/-to the mother of the prosecutrix; and that a dispute arosebetween them regarding this transaction. They further statedthat to take revenge from the mother of the accused, the motherof the prosecutrix got the accused challaned in this case falsely. I have heard the learned counsel for the parties andhave gone through the records of the case.

In this case the prosecutrix has not been examined.Smt. Maina (P.W.4), mother of the prosecutrix, in her cross-examination stated that the prosecutrix was married abouttwo years prior to the occurrence; that she stayed at hermatrimonial house only for a night; that the prosecutrix was willingto go to her matrimonial house; that they were interested tosend the prosecutrix to her matrimonial house and that the husbandof the prosecutrix was also willing to take her. Smt. Maina(P.W.4),admitted that the prosecutrix was mentally deranged.

After hearing the learned counsel for the parties andgoing through the evidence on record, I am of the consideredopinion that it was a case of attempted sexual intercoursefalling within the definition of Section 376 read with Section 511of the Code. The evidence of Smt. Maina (P.W.4), Dharambir(P.W.5) and Smt. Mafia (P.W.6) establishes the case of theprosecution against the appellant. Smt. Maina (P.W.4), motherof the prosecutrix, stated that when she returned from thefields after collecting fodder, she heard the `raula' and wentto the place of occurrence where she found the prosecutrixlying naked. The appellant had also put off one of his trousers.He was trying to commit rape upon the prosecutrix. On seeingSmt.Maina, the appellant ran away from the spot. Dharambir(P.W.5) and Smt. Mafia (P.W.6), who had been attracted to thespot on hearing the noise, had witnessed the appellant runningaway from the spot while chaining / zipping his Pants. Nodoubt Smt. Maina (P.W.4) has admitted in her cross-examinationthat the prosecutrix was mentally deranged and, thus, obviouslyunable to get her statement recorded before the police, butkeeping in view the facts and circumstances of the case this facthardly affects the veracity of the prosecution version. As theprosecutrix was not examined by the prosecution, it showsthat she was not capable of deposing before Court. In offenceslike the present one, the prosecutrix is the main and keywitness because she being the victim can narrate the incident.As noticed above, besides the prosecutrix, in this case there

is evidence of Smt. Maina (P.W.4), Dharambir (P.W.5) and Smt.Mafia (P.W.6), discussed above, which connects the accused withthe crime. There was no hindrance for the mother of theprosecutrix to get the First Information Report recorded in thiscase by making her statement before the police. It appearsthat in fact Smt. Maina had narrated the facts before theInvestigating Officer, but the Investigating Officer, with anobject to help the accused, got the thumb impression of theprosecutrix on the statement (Exhibit P.A) knowing fully wellthat she (prosecutrix) was mentally deranged. The InvestigatingOfficer ought to have recorded the First Information Report on thestatement of Smt. Maina if the prosecutrix was not in a position toexplain the things because of her mental incapability and therewould not have been anything illegal in it. If theInvestigating Officer got the thumb impression of the prosecutrixon the statement (Exhibit P.A), it does not at all demolishes theprosecution case, which stands otherwise proved on record, asdiscussed above. A fault committed by the police official cannotbe made the basis for not bringing the culprit to book and thefacts and circumstances on record, in totality, form the basisfor the Courts to reach to a correct conclusion. Had Smt.Maina (P.W.4), mother of the prosecutrix, not arrived at herhouse timely, the appellant would have been able to commitrape upon the prosecutrix. The appellant had no business to goto the house of the prosecutrix when she was alone. The facts andcircumstances of the case, enumerated above, suggest that the appellant had gone to the house of the prosecutrix to commit rapeon her taking advantage of the fact that she was mentallyregarded.

In view of the above, the prosecution has been able tobring home the guilt of the accused beyond all reasonable doubtsunder Section 376 read with Section 511 of the Code. Therefore,no interference is called for in the impugned judgment of convictionand the sentence order. Resultantly, this appeal is herebydismissed.

December 23, 2009.ak

( MOHINDER PAL ) JUDGE