AMARJIT SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE appellant was convicted under Section 376 IPC and was sentenced to suffer rigorous imprisonment for seven years and fine of Rs. 500/-, in default rigorous imprisonment for six months. He further came to be convicted under Section 506 IPC and was sentenced to suffer rigorous imprisonment for three years. The substantive sentences are ordered to run concurrently.

(2.) BRIEFLY stated the prosecution case is as follows :-

(3.) COUNSEL for the appellant submitted before me that the medical evidence clearly shows that the prosecutrix was between the age of 16-1/2 to 17 years. I find that the conclusion had been arrived at on the basis of ossification test only. Needless to say the ossification test gives only approximate age group. The prosecution has led the evidence of PW-4 Kesho Ram to establish the birth certificate of Usha Rani. His evidence indicates that on 13.1.1976 one daughter named Kimla was born to one Rameshwar of village Kheri Jattan. It may be mentioned that Rameshwar has only one daughter who is present prosecutrix Usha Rani. It, therefore, appears clearly that Usha Rani was named as Kimla at the initial stage soon after her birth, and in the course of events she was named as Usha Rani. Even counted from that date, the age of the prosecutrix would be about 16 years five months. On this premises, it was submitted that possibility of prosecutrix being consenting party assumes importance. It was submitted that since there was no injury on the genital of the prosecutrix, and since there were no other injury consistent with the forceful sexual intercourse, the possibility of the prosecutrix being consenting party cannot be ruled out. In that respect my attention was also invited to the fact that one of the eye-witnesses, who had come soon after hearing of the shouts, has not supported the prosecution. It may be recalled that on hearing the shouts, two ladies, namely, Jagiro wife of Ram Singh and Jagiro widow of Surjan (PW- 10) and girl Suman aged 11 years appeared at the scene of occurrence. Out of these, Jagiro wife of Ram Singh was dropped by the prosecution by simply informing the Court that she was won over by the accused. It is surprising that the Prosecutor incharge of the case adopted such a novel method to brand a witness as hostile witness without any material to substantiate such a plea. It has been repeatedly observed by this Court and also by the Apex Court that dropping to a witness by simple intimation to the Court that the witness was won over, (sic) justify the action. There should be (sic) resiled from his or her previous statement recorded under Section 161 Cr.P.C., and thus has shown the tendency to suppress the truth. Such witness should, therefore, be placed in the witness box, and if in the course of evidence he indicates his noncooperation to the prosecution by resiling from the previous statement, the witness can be cross-examined with the permission of the Court as per Section 145 of the Evidence Act. Impeaching the credit of a witness is also possible in a manner indicated in Section 155 of the Evidence Act. The previous statement recorded under Section 161 Cr.P.C. can be confronted to the witness under Section 145 coupled with Sections 154 and 155 of the Evidence Act. Unless there is sufficient material to consider that a witness was suppressing the truth, it would not be possible to justify the dropping of a material witness. It may be mentioned here that the other witness Jagiro widow of Surjan (PW-10) turned hostile to the prosecution and came to be cross-examined by confronting the statement recorded under Section 161 Cr.P.C., which were inconsistent with the statements made during the deposition. Thereby it was clearly indicated that the witness was capable of making discrepant statement on two different occasions. That was an indication that she was not wiling to tell the truth. The third witness, namely, child Suman was also not examined by the prosecution for the reasons best known to the prosecution. It may be mentioned that Suman was one of the persons who was sleeping by the side of the prosecutrix while in the courtyard. From courtyard the prosecutrix was taken to the interior room where she was, allegedly, subjected to rape. Therefore, Suman would be one of those first persons who would have certainly thrown light as to the sequence of events. That would have also corroborated the prosecutrix on the point that she had raised shouts and thus resisted the commission of rape.