RAJ MAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) RAJ Mal-appellant was convicted by the learned Additional Sessions Judge, Gurgaon, on the charge for offences punishable under Sections 376 and 452 of the Indian Penal Code. He was awarded four years rigorous imprisonment and fine of Rs. 1,000/- or in default of payment thereof to further suffer one year's rigorous imprisonment, on the first count, while one years rigorous imprisonment was awarded on the second count., The amount of fine, if realized, was ordered to be paid as compensation to the prosecutrix. Feeling aggrieved against his conviction and sentence, he has come up in appeal.

(2.) IN brief, the facts of the prosecution case, are that Mst. Jameela, Prosecutrix, along with her husband Hassan Mohammed (P.W.2) and children used to reside in a thatched hut in the area of Village Rithar. Her husband used to sell goods in different villages as a peddler. On November 6, 1985, at about 2 P.M., while suckling her youngest child, she went in deep slumber. In the meanwhile, her neighbour Raj Mal accused came there and secured her from her breasts. She woke up. The accused then gagged her mouth with her left hand and with the help of the other he opened the string of her Salwar and without her consent committed sexual intercourse with her. She failed to make any noise due to the gagging of her mouth. However, she put up struggle during this process. Her suckler child fell down from the cot during this process. In the meanwhile, her husband Hassan Mohammed (P.W.2) alongwith Kasam and Harun arrived there. Raj Mal accused managed to escape despite of best efforts of these witnesses to apprehend him. She was then crying and apprised her husband of the entire episode. Her husband wanted to take her to the Police Station for lodging the report, but Sufeda and Chuttan, in whose land they were residing, restrained them from doing so saying that they would bring about a reconciliation. Ultimately, when nobody tried to reconcile the matter, she along with her husband came to Police Station, Nagina, on November 9, 1985 and lodged the report (Exhibit P.A.) at 8.05 P.M. with Sub Inspector Gian Chand. A case under Sections 376/452 of the Indian Penal Code was registered against the accused. The prosecutrix was then taken to Primary Health Centre, Nagina, for medical examination where from she was referred to the hospital at Ferozepur Jhirka as no lady doctor was available. She was then taken to Ferozepur Jhirka, but as the lady doctor was ill, she was referred to General Hospital, Gurgaon. Ultimately, at General Hospital, Gurgaon, she was medically examined by Dr. (Mrs.) Rekha Yadav (P.W.3) at 4.30 A.M. on November 10, 1985. She found no external injury on her private parts or other portion of the body. She took swabs from the vagina of the prosecutrix. She also got removed the Salwar and handed over the Salwar and swabs to the police for their chemical examination after putting them in sealed parcels. The Chemical Examiner detected human semen on the Salwar; but not in the vaginal swabs.

(3.) AFTER completion of investigation, the accused was arraigned for trial on such like allegations by submitting the charge sheet before the Committing Magistrate, who committed the case to the Court of Sessions.