Rajendra Babu, J. -
(1.)On May 9, 1993 at about 3.30 p.m., when Rajbir (P.W. 6) was passing in front of the Baithak of the residence of Ram Karan, father of the appellant, he heard the cries of his sister, Sudesh, aged about 15 years and when he went inside the Baithak by scaling over the wall he saw Anil Kumar (now deceased) committing rape of his sister, Sudesh and she was weeping while lying on the ground. Then came Ashok Kumar, the appellant, from the adjoining room with a pistol in his hand asking the witness Rajbir (P.W. 6) to run away as otherwise he would shoot him. Rajbir (P.W. 6) raised an alarm upon which several persons in the neighbourhood and his brother Ranbir (P.W. 4) and his father, Dhanpat, came to the spot. On seeing this, the appellant ran away from the place. Sudesh, sister of Rajbir (P.W. 6) after putting on her salwar went away as she was feeling ashamed. She was not found in the house when other members of the family looked for her. When they came back to their houses at about 12 midnight, she was vomiting and weeping. On asking her, they came to know that she had consumed aluminium phosphide tablets which are used for preservation of wheat in order to put an end to her life as the appellant and deceased Anil Kumar (1st accused) had committed rape on her and she was feeling ashamed. As no other conveyance was available, they took her to the hospital on a bicycle at about 5 a.m. on May 10, 1993. The doctor admitted her in the hospital at about 5.30 a.m. and thereafter both the brothers returned to their village to make arrangement for money for payment to the hospital. Dr. A. K. Suri (P.W. 2) sent intimation to the police station regarding the admission of Sudesh in the hospital, upon which H. C. Mohinder Singh (P.W. 12) went to the hospital and inquired about her fitness to make statement. The doctor declared her unfit to make any statement and she expired at about 7.10 a.m. on May 10, 1993. Thereafter H. C. Mohinder Singh (P.W. 12) recorded a statement of Rajbir (P.W. 6) at about 9 a.m. on the basis of which FIR for offences under Ss. 376, 306 and 506, I.P.C. were recorded at the Police Station, Safidon at 9.10 a.m. and after investigation the charge-sheet for offences under Ss. 3/6 and 506, I.P.C. was laid before the Court against the appellant and Anil Kumar. Ranbir and Rajbir (P.W. 4 and P.W. 6) were charged under S. 306, I.P.C. for abetting suicide of Sudesh, but they were acquitted of the charge. This in brief is the prosecution case.
(2.)The trial Court convicted each of the accused to undergo rigorous imprisonment for 11 years and to pay a fine of Rs. 2,000/- under S. 376(2)(g), I.P.C. and in default of payment of fine to undergo further imprisonment of one year. Both the accused filed appeals. During the pendency of the appeals, Anil Kumar died in an accident. The High Court, having dismissed the appeal filed by the appellant, this appeal by special leave is preferred.
The post-mortem report of the body of Sudesh disclosed as under :
"It was moderately built, moderately nourished body of a female. Auxiliary hair were present. Breasts were well developed. Pubic hair were present. There was no external mark of injury seen in perineum, thighs, hips, breast or on any other part of body. Hymen was ruptured, which was old healed and ruptured and admitted two fingers. No fresh injury was present in the vagina. Uterus was ante-verted and nulliparous."
(3.)In the Court, evidence was tendered to the effect that two vaginal swabs were taken from posterior and lateral fomices and pubic hair were sent to the chemical analysis as well as the salwar, undershirt and the underwear worn by the deceased were also sent to the Forensic Science Laboratory, which, however, did not indicate anything positive. Dr. V. P. Kakkar (P.W. 3) opined that the possibility of recent intercourse is totally ruled out. From the condition of vagina and hymen, he stated that the deceased was habituated to sexual intercourse. He did not find any injury upon the deceased. He opined that she has died as a result of poisoning. Similarly medico-legal examination of the appellant did not find any mark of injury on any part of the body and his underwear which was sent to the FSL did not produce anything positive. Apart from stating that he was fit to perform sexual intercourse, no other statement was made before the Court.