Allegation of forcible rape by accused on a married lady, No injury on victim body and private parts, Held, rape was with consent

Allegation of forcible rape by accused on a married lady, No injury on victim body and private parts, Held, rape was  with consent
PUNJAB AND HARYANA HIGH COURT
Before :- H.S. Bhalla, J.
Criminal Appeal No. 753-SB of 1997


IMPORTANT
Allegation of forcible rape on a married lady aged 22 years by accused - No injury found on body of victim - Held, it was a rape with consent.

Harpal Versus State of Haryana, D/d. 18.01.2010


For the Appellant :- Mr. Vijay Pal Singh, Advocate.
For the Respondent :- Mr. Sunil Katyal, Senior Deputy Advocate General, Haryana.

A. Indian Penal Code, Section 376 - Rape case - Acquittal of accused - Allegation of forcible rape by accused on a married lady aged 22 years - No injury on body and her private parts - Prosecutrix not believed - Held, it was a rape with consent - Further held :-
(1) It was very difficult for any person to rape single handedly a grown up and an experienced woman without meeting the stiffest possible resistance from her and the absence of any injury either on the accused or the prosecutrix was a clear pointer to the fact that she had not put any resistance to the alleged rape leading to the irresistible conclusion that she was a consenting party.
(2) Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to forced sexual intercourse. 1977 Criminal Law Journal 817. Relied.
[Paras 12 and 13]
B. Evidence Act, Section 18 - Admission - Whether a suggestion put by the defence counsel to a prosecution witness, amounts to an admission on the part of the accused (No) - Suggestions put are no evidence at all against the accused and on the basis of such suggestion no inference can be drawn against the accused that he admitted the fact suggested in the cross-examination - A suggestion thrown to a prosecution witness under cross-examination by the defence counsel can not be used as an implied admission so as to dispense with the proof of the prosecution case - It is only the plea of guilty, pleaded by a accused which can relieve the prosecution of its burden of proof. AIR 1969 Gujarat 69 : (1969 Crl. L.J. 409). Relied.
[Para 11]
C. Evidence Act, Section 18 - Admission made by counsel of accused - Accused not bound by admission - In a criminal trial, a lawyer appears for the accused to defend the accused but he has no implied authority to make admissions against the client during the progress of the trial.
[Para 11]


Cases Referred :


Koli Trikam Jivraj v. State of Gujarat, AIR 1969 Gujarat 69 : 1969 Crl. L.J. 409.
Partap Misra v. State of Orissa, 1977 Criminal Law Journal 817.

JUDGMENT


H.S. Bhalla, J. - This appeal is directed against judgment dated 3.9.1997, passed by Additional Sessions Judge (1) Jind, whereby he convicted the appellant under Section 376 I.P.C. and sentenced him to undergo rigorous imprisonment for seven years; to pay a fine of Rs. 1000/- and in default of payment of fine, he was directed to further undergo rigorous imprisonment for six months.
2. Briefly stated the facts of the prosecution case are that in March, 1997 prosecutrix wife of Telu, aged, 20 years, was residing in village Intal Khurd. During the intervening night of 17/18.3.1997 her husband had gone out of station and she was sleeping in her house all alone. She had already been conceived at that time. At about 9.30 P.M. some body knocked at the main door of her house. She asked who is at the door. The said person replied that he was Satbir, resident of Mirchpur and asked her to open the door as her husband was under the influence of liquor. When she heard about the condition of her husband, she opened the door. Satbir and Harpal entered the house. She asked where her husband was, but they did not respond. Satbir asked Harpal to do his job and he himself went from there on the pretext of bringing Telu from the trolly of the tractor. Harpal who was previously known to the prosecutrix said "you are still young in age and immature. Why you have separated." In the meantime, Raj Kumar @ Raju son of Hari Singh, resident of village Intal Khurd came there on hearing the knocking of the door. He directed Harpal to go to his house and asked the prosecutrix to sleep, but Harpal directed Raju to go to his house and not to interfere in the private matter. At this, Raju went. Harpal (appellant) bolted the door of the house of the prosecutrix from inside. Prosecutrix cried, but Harpal made her to lay on a cot, broke the siting of her salwar and tried to remove the same. She gave a kick to him and again raised a noise of "Bachao Bachao". Harpal pressed her neck and threatened her to put to death in case she cried. When she looked at the window of the room, she saw that two-three persons were standing outside the window and were trying to remove the curtain. On realizing, that there was some conspiracy and danger to her life, she kept quiet. Harpal removed her underwear and then committed rape with her and thereafter left the spot. Prosecutrix saw three persons, namely, Satbir Mirchpuria, Rajive alias Babban son of Tek Ram and Sukhbir alias Kala son of Kapoor Singh, residents of village, Intal-Khurd standing outside her house and then going in the street in the light of her house. On the next morning at about 12.15 P.M., she went to the Police Station Sadar Jind and reported the matter to the police whereupon F.I.R. (Ex. PK) was registered against the accused persons.
3. After the case was registered, police took the prosecutrix to the General Hospital, Jind for her medical examination and after completion of necessary formalities, accused persons were sent up for trial under Section 376(g), 506/34 and 120-B of the Indian Penal Code.
4. The trial court framed charge under Section 376 I.P.C. against appellant Harpal, whereas charge under section 120-B I.P.C. was framed against all the accused persons, to which they did not plead guilty and claimed trial.
5. Prosecution in order to substantiate its allegations, examined as many as 11 witnesses and tendered in evidence documents Ex. PA to Ex. PM and placed on record articles Ex.. P-1 to Ex. P-5 and closed its evidence.
6. In their statements recorded under Section 313 of the Code of Criminal Procedure, appellant Harpal the stand that he gave beatings to Telu, the husband of the prosecutrix some 4-5 days prior to the registration of this case because of the foul act and conduct of the prosecutrix and her husband. He also stated that there was a dispute about the partition of the land between their families. Accused Satbir stated that Telu the husband of the prosecutrix purchased pesticide and fertilizer from Karambir on credit and his brother Mohinder stood surety for him but later on Telu refused to make the payment and when he was pressurised by Mohinder to make the payment of Karambir, he involved him in the false case.
7. The learned trial Judge, after hearing the learned counsel for the accused persons and the learned Public Prosecutor, acquitted remaining three accused of the charges framed by him and also acquitted appellant Harpal of charge under Section 120-B of the Indian Penal Code vide judgment dated 3.9.1997.
8. I have heard learned counsel appearing for the appellant the learned State counsel at some length and with their assistance have also gone through the record of the case minutely.
9. Prosecution, in order to prove its case, has relied heavily upon the testimony of the prosecutrix. It is an admitted case of the prosecution that prosecutrix had not heard any conversation of the accused persons while hatching a conspiracy to commit rape with her nor she had seen the accused persons together before the occurance. Only Harpal was known to her being elder brother of her husband. According to the version of the prosecution, occurrence took place at 9.30 P.M. during the intervening night of 17/18.3.1997 and at that time, she was all alone because her husband was out of station and Satbir knocked at the door of her house and requested the prosecutrix to open the same on the pretext that he had brought her husband in the state of intoxication and in such like circumstances, as per prosecution version, she opened the door despite the fact that Satbir was not known to her previously. According to her version, sufficient light was there inside and outside the house. The learned trial court has categorically observed that if this version is not believed then presence of the accused persons at the house of the prosecutrix at the relevant time become highly doubtful and therefore, if there would have been no admission on part of accused Harpal about his presence at the relevant time at the house of the prosecutrix, presence of all the accused persons including Harpal would become doubtful. Certain suggestions were put to the prosecution witnesses by the learned defence counsel appearing for appellant Harpal and on account of those suggestions, the learned lower court arrived at a conclusion that Harpal has admitted his presence with the prosecutrix at her residence during the intervening night of 17/18.3.1997 at about 9.30 P.M. and he has also admitted that he had committed sexual intercourse with the prosecutrix without her consent and will. The relevant portion of the judgment of the learned trial court runs as under :-
    "In the same way further suggestion was put to this witness by accused Harpal that she remained in her house during the rest part of that night after the occurance and did not report the matter to her mother-in-law or any other family member. In the reply of this suggestion the prosecutrix made the following version :-
    "It is correct that after the occurrence I stayed in my house during the rest part of the night and did not report the matter to my mother-in-law or any other family member. I did not report the matter to any member, Sarpanch or Lambardar of the village."
    "In view of the above quoted version of the prosecutrix it is quite clear that accused Harpal has admitted his presence with the prosecutrix at her residence during the intervening night of 17/18.3.1997 at about 9.30 P.M. He has also admitted that he committed the sexual intercourse with the prosecutrix and that too without her consent and against her will. The version is a relevant and material evidence against accused Harpal being his admission. This version can not be used against the remaining accused persons. Therefore, as I have stated above there was no reliable evidence adduced by the prosecution on the file to prove the presence of the accused persons at the spot because the prosecutrix was the only witness who was examined by the prosecution to prove the presence of the accused persons at her residence and her version was not appealable to the common sense, but in view of the admission of accused Harpal it can be held that he was present at the residence of the prosecutrix at the relevant time. From this admission of one of the co-accused persons the presence of the accused persons at the place of occurrence at the relevant time and hatching of conspiracy by all of them to commit rape upon the prosecutrix can not be inferred. At the cost of repetition would like to say that the above quoted admission of accused Harpal can only prove his presence at the residence of the prosecutrix at the relevant date and time."
10. The above quoted relevant portion of the judgment of the learned trial Judge clearly spells out that he has based h conviction order on account of admission of accused Harpal, which has been developed by the learned trial court on the basis of suggestions put to the prosecutrix and the witnesses on behalf of the accused by the learned defence counsel, but for the reasons to be recorded by me hereinafter, to my mind, learned trial of court fell in error since it is admitted case that in the statement of the accused, there is plain denial and false implication. The learned defence counsel has rightly pointed out that the learned trial court has based his reasoning and discussion to some of the suggestions made to the prosecution witnesses in their cross-examination rather than what has in fact been proved by the prosecution within the meaning of Section 3 of the Evidence Act. Learned counsel has further rightly submitted that conviction is based on rejection of defence case and not on the proof of the prosecution. To my mind, accused is not bound by such questions or suggestions being put to any witness by her counsel in cross-examination of witnesses. Moreover, the statement of the accused under Section 313, Code of Criminal Procedure, would stand on better legal footing than the suggestions put to prosecution witnesses in cross- examination. The learned counsel is right when he says that major portion of trial court's discussion is devoted to the suggestions made by the defence counsel in cross-examination. In fact, before considering the defence stand and the evidence in support thereof, it is necessary for the court to reach a conclusion and record a positive finding about the proof of the prosecution case. The prosecution has to stand on its own legs and the suggestions put to the prosecution witnesses by the defence counsel would not by itself prove the prosecution case and the guilt of the accused. This approach of the learned trial Judge that before dealing with the prosecution evidence and reaching a conclusion based on the defence plea is completely wrong. The reasoning adopted by the learned trial Judge and having termed as admission on part of the accused merely on the basis of suggestions put to the witnesses can not be proved under the concept of criminal Jurisprudence.
11. As has been noted above, the trial court has not adverted to the plea taken by the accused in the statement recorded under section 313 of the Code of Criminal Procedure. The learned trial Judge remained confined to the suggestions about consent etc. made to prosecutrix and other witnesses during the course of cross-examination. In fact, the trial court has not gone beyond this suggestion and not even looked into the appellant's statement recorded under section 313 of the Code of Criminal. Procedure in order to ascertain the defence plea. Going through the statement of the accused and his plea as recorded by the trial court, it was a case of plain denial and false implication. At this stage, I would like to peep through the provisions of sections 17 and 18 of the Evidence Act regarding admission. Section 18 of the Evidence Act deals with admission by party to proceeding or his agent. Whether a suggestion put by the defence counsel to a prosecution witness, amounts to an admission on the part of the accused is a crucial question which requires consideration. It is a common practice to suggest to a witness while he or she is under cross-examination, the case of the defence when such evidence or suggestion is denied, it does not constitute any evidence. Suggestion put are no evidence at all against the accused and on the basis of such suggestion no interference can be drawn against the accused that he admitted the fact suggested in the cross-examination as has been erroneously done by the learned Judge of the trial court in the instant case. The proof of guilty required of the prosecution.does not depend on the suggestion put to a witness. I would also like to observe that on account of mere suggestions to the prosecutrix, the learned trial Judge has virtually dispensed with the proof of offence of rape. Accused, as has been discussed above, is now bound by such a situation or implied admission made by the counsel. It may also be noted as has been pointed out by a Division Bench of Gujarat High Court in Koli Trikam Jivraj v. State of Gujarat, AIR 1969 Gujarat 69; (1969 Crl. L.J. 409), that the accused is entitled to the benefit of the plea set up by his counsel but it can not be said that the plea or defence which his lawyer puts forward must bind the accused. The reason is simple and not far to seek. In a criminal trial, a lawyer appears for the accused to defend the accused but he has no implied authority to make admissions against his client during the progress of the trial. The role of defence counsel at a criminal trial, is that of assisting the accused in defending him against the charge. In criminal cases, a suggestion thrown to a prosecution witness under cross-examination by the defence counsel can not be used as an implied admission so as to dispense with the proof of the prosecution case. It is only the plea of guilty, pleaded by a accused which can relieve the prosecution of its burden of proof. The learned Judge of this trial court contrary to these settled principles of criminal jurisprudence has acted upon the suggestions made to the prosecutrix about her being consenting party to the act.
12. P.W. 6 Dr. Sheela Kharab is a lady Medical Officer, who medico-legally examined the prosecutrix in the General Hospital, Jind on 18.3.1997. This witness has categorically observed that there was no external mark of violence on any part of the body including buttock, perineum, thighs and lower abdomen of the prosecutrix and in view of this evidence, learned counsel appearing for the appellant has further argued that entire episode was nothing but a consensual affairs which does not give rise to any offence because the prosecutrix on her own showing was a major lady at the time of commission of impugned offence. This contention of the learned counsel is liable to be accepted in view of the fact that evidence available on the file is supportive of an inference that the prosecutrix was a major and was married at the relevant point of time and she was a consenting party to the act. It may be noticed in the context that Harpal was known to her being elder brother of her husband. If there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grown up lady. Some injuries would have been found on the private parts of the body or some other part indicative of any such use of force or it would be too much to assume that there would have been no injuries whatsoever on the body on this account. Tough injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to forced sexual intercourse. The prosecutrix was a young and experience woman, aged about 22 years, and if a rape had been committed, some marks of injuries would have been found on the private parts of both the prosecutrix and the accused. As no such injury has been found on the body of the prosecutrix, it clearly shows that it was not a case of rape.
13. In Partap Misra and others v. State of Orissa, 1977 Criminal Law Journal 817, wherein the Supreme Court observed that the opinions of medical experts showed that it was very difficult for any person to rape single handedly a grown up and an experienced woman without meeting the stiffest possible resistance from her and the absence of any injury either on the accused or the prosecutrix was a clear pointer to the fact that she had not put any resistance to the alleged rape leading to the irresistible conclusion that she was a consenting party. In view of all this, I find that it would have been virtually impossible for the accused alone to have committed rape on her without her consent. Keeping in view the relationship of the accused with the prosecutrix, he would be a frequent visitor to the prosecutrix and as soon as he tried to commit a rape, she could have raised an alarm and it appears that prosecutrix herself was a consenting party with the sexual intercourse with the accused and that is why no resistance was put up and as such no injury marks were found.
14. In view of the infirmities pointed out and the erroneous approach of the trial court in construing the suggestion as an implied admission, on the part of the accused, the conviction as recorded above clearly beats drum of acquittal.
15. For the foregoing reasons, the conviction and sentence as recorded by the trial court can not be sustained and are they are liable to be set aside and are accordingly set aside. The appellant is acquitted of the charge framed against him giving him the benefit of doubt. Fine if paid, be refunded to the accused-appellant. His bail bonds stand discharged.

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