MOHINDER Vs. STATE OF HARYANA

JUDGEMENT

(1.) SHRI Mohinder son of Shri Sultan, caste Gujjar, resident of village Bapoli, district Karnal has filed the present criminal appeal and it has been directed against the judgment and order dated 8.4.1987 passed by the Court of Additional Sessions Judge, Karnal, who convicted the appellant under Section 376 IPC and sentenced him to undergo RI for a period of 7 years and to pay a fine of Rs. 200/-; in default of payment of fine to further undergo RI for 6 months.

(2.) THE brief facts of the case are that PW3 Smt. Bala Devi was residing at village Bapoli along with her husband Pala. She is Harijan by caste and her husband is a labourer. The father-in-law and mother-in-law of Smt. Bala Devi were living separately from her along with their another son Jai Narain. The field of Khilla is situated at a distance of 1 KM. from the village and the field of the accused is situated near the field of Khilla. The accused during the days of occurrence had sown Jawar in his field. On 30.9.1986 Pala Ram, husband of Smt. Bala Devi, had gone out of the village to meet his in-laws. At about 10.00 a.m. Smt. Bala Devi prosecutrix left the house for bringing grass from the field of Khilla as she had kept a cow. PW4 Nirmla wife of her husband's brother Jai Narain and her sister-in-law (Nanad) Smt. Kamla had already left the house to cut grass from the field of Pitma Gujjar. PW3 Smt. Bala Devi started cutting the grass from the field of Khilla and at that time the accused was cutting jawar from his field at a distance of about one killa from the prosecutrix. At about 12.00 noon the appellant called the prosecutrix and asked her to help him in lifting the bundle of jawar. Smt. Bala Devi accordingly went to him and helped him in lifting the bundle of jawar and returned to the field of Khilla and started cuttings grass. After about 5-10 minutes, the appellant again called her to help him in lifting another bundle of jawar. She again went to the field of the appellant to help him in lifting the bundle of jawar and when she bent a little bit in order to help the appellant in lifting the bundle, the appellant forcibly caught hold of her. He closed the mouth of the prosecutrix with his left hand and gave fist blows on her cheeks, lips and breast including nail scratches and made her to fall on the jawar crop with her face downward. The appellant continued to keep her mouth closed with his left hand while he removed his pajama with his right hand and placed it nearby. He then opened the string of the salwar of the prosecutrix and removed the salwar upto her knees and started committing sexual intercourse with her against her consent and in the process the left hand of the appellant slipped from the mouth of the prosecutrix enabling her to make raula. On hearing that raula, PW4 Nirmla and Kamla, who were going to the village along with their bundles of grass and were passing from the nearby dol of the fields heard her raula and reached the spot. On seeing them coming, the appellant picked up his pajama and ran away towards village Shimla. Smt. Bala Devi told the whole occurrence to them and they took her to the house. Pala husband of the prosecutrix returned in the village at about 8.00 p.m. and the prosecutrix told the whole occurrence to him. Then she along with her husband went to the police station Sadar Panipat where she made statement to the police which was recorded in the shape of formal FIR Ex.PE at about 10.00 p.m. On 1.10.1986 PW3 Smt. Bala Devi was got medico-legally examined by PW2 Dr. Rosy Aneja, who found the following injuries on her person :-

(3.) IN order to prove the charge, the prosecution examined Dr. R.M. Singh, Medical Officer, Civil Hospital, Panipat as PW1, who examined Mohinder appellant on 9.10.1986 and vide report Ex.PA declared that the appellant was fit to perform sexual intercourse. At that time there was no mark of injury over the person of the appellant and no foreign body was present around the genitalias. Smegma was found absent. Dr. Rosy Aneja PW2 medico-legally examined the prosecutrix on 1.10.1986 and found five injuries which I have already stated above. On the application of the police Ex.PC this doctor opined that the injuries on the person of Smt. Bala Devi were caused within a duration of 24 hours and could be the result of fist blows. It has been further opined by this doctor that injuries No. 3 and 4 of Smt. Bala Devi could be caused by scratching of nails. This doctor also took into possession salwar Ex.P1, Dupatta Ex.P2 and shirt Ex.P3 of the prosecutrix. Finally after the receipt of the report of the Chemical Examiner Ex.PD she opined that possibility of Smt. Bala Devi subject to rape cannot be ruled out.