DEV RAJ Vs. STATE OF HARYANA

JUDGEMENT

(1.) This appeal has been filed by Dev Raj-appellant against the order dated 1.10.1991 passed by the Additional Sessions Judge, Yamuna Nagar at Jagadhri whereby the appellant has been convicted for the offence under Section 376, IPC, and sentenced to undergo RI for 7 years and fine of Rs. 200/- and in default of making the payment of fine, he was to undergo further RI for six months.

(2.) Case FIR 30 dated 4.3.1990 under Sections 376/120B/34, IPC, was registered at Police Station, Radaur, on the statement Ex. PB of the prosecutrix (name with-held) who is the wife of Jagdish aged about 30 years. It is stated that she was residing in village Tandwal, Police Station Mullana. She was married with Jagdish resident of Bhagumajra about four years earlier to the occurrence. She had two children i.e. a son and a daughter and had got herself sterilized. Her husband had taken land measuring one Killa on lease from Gram Panchayat of Village Bhagumajra on contract and he was cultivating the same for the last about five years. In half portion of the land wheat crop had been sown whereas in the remaining part, fodder (Barseen) was sown. It is further alleged that on 3.3.1990 at about 3.00 p.m., she had gone to her fields for getting fodder (Barseen) for the cattle and one person whose name is Dev Raj (appellant) came all of a sudden and embraced her from behind. He made her to fall on the Barseen and after breaking open the string of her 'salwar' stripped the 'salwar' downwards. Then he took off his Pyjama and after opening the string of his underwear forcibly raped her. She made a noise of help-help. However, the appellant had placed his hand on her mouth and forcibly raped her. After committing rape, he ran away towards village Ramgarh. Two women namely, Suresho wife of Sh. Nathu Ram and Jogindero wife of Om Parkash who heard the noise, came at the spot and also witnessed the running away of Dev Raj-appellant. Thereafter, the prosecutrix came to her house and narrated the entire incident to her husband, who gathered respectables of the village and told them of the occurrence. During night as the prosecutrix was unwell, she could not go out and in the morning, she along with her husband reached the Police Station where her statement was recorded at 4.15 a.m. On the basis of the said statement, FIR Ex. PB/1 was registered. The statement was read over to the prosecutrix, who after admitting it to be correct, thumb marked the same. Om Parkash ASI, Police Station, Radaur, PW7, investigated the case and got the prosecutrix medically examined from Dr. Kanta Dhankar (PW4). He also went along with the prosecutrix to village Bhagumajra and at the instance of the PWs, prepared the rough site plan Ex. PK, with its correct marginal notes in his hand. Thereafter, he recorded a supplementary statement of the prosecutrix and also the statement of Smt. Suresho Ex. PC. The statement of Smt. Jogindero was also recorded and offence under Section 120B, IPC, was added and the other accused-Dharam Singh was implicated. On the same day, the investigating officer went to the house of Baljit, father of appellant-Dev Raj and arrested him and got him medically examined from Primary Health Center, Radaur. Thereafter, on 6.3.1990, the other accused-Dharam Singh was arrested. After completing the investigation, the challan in terms of Section 173 Cr.P.C. was filed in the Court of the Illaqa Magistrate. In view of the fact that the case was triable by the Court of Session, the Magistrate committed the case to the said Court. The prosecution, in order to establish its case, examined as many as seven witnesses and also tendered documents in evidence including the report of the chemical examiner, Ex. PL, and closed its evidence. The appellant, in his statement under Section 313 Cr.P.C. stated that Jagdish, husband of the prosecutrix was doing the business of sinking tube-well and hand pump. There occurred some altercation on some money transaction between him and Jagdish and on this account, Jagdish planted a false case against him. The learned Additional Sessions Judge, as already noticed, convicted and sentenced the appellant. The other accused-Dharam Singh was, however, acquitted. The order of the learned Additional Sessions Judge convicting the appellant, is assailed in this appeal.

(3.) Mr. Ajai Lamba, Advocate, learned counsel appearing for the appellant, has contended that the appellant has been falsely implicated in the case and there are material discrepancies in the statement of the prosecutrix which go to show the innocence of the appellant. The prosecutrix, it is contended, has given an inflated and an exaggerated version and despite the fact that there has been delay of 13 hours in the registration of the FIR, the prosecutrix did not name Dharam Singh as an accused in her statement, Ex PB, on the basis of which, FIR, Ex. PB/1, was registered. It is further contended that the prosecutrix states that injuries were received by her. However, the doctor opined that she did not suffer any injury. The improved and exaggerated version given by the prosecutrix, it is contended, is sufficient to record a finding of acquittal against the appellant inasmuch as the prosecution has failed to prove its case against the appellant.