Rape--Unnatural conduct of Complainant--He neither tried to save his mother nor raised alarm immediately--Accused acquitted

JUDGMENT :

Rajiv Sharma, J.

1. This appeal has been instituted against the judgment and order dated 13.09.2013 rendered by the Sessions Judge, Hoshiarpur in Sessions case no. 20 of 01.08.2013 whereby the appellant, who was charged with and tried for offence punishable under Sections 376 of the Indian Penal Code (in short IPC), has been convicted thereunder and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year.

2. The case of the prosecution in a nutshell is that on 11.04.2013, ASI Salwinder Singh along with other police officials was holding picket at Bus Stand, Bhangala. Complainant Ved Parkash approached them. He made the statement. According to him, his mother (prosecutrix) was residing with him. Her age was about 90 years. She was unable to speak properly due to old age. She used to pay obeisance on temple at Mand Mandir Motla. On 11.04.2013 at about 2.30 P.M. the prosecutrix went in routine, for paying obeisance in the said temple. However, she did not come back until 6.00 P.M. Thereafter, the complainant went in search of prosecutrix at Mand Mandir Motla. At about 6.30 P.M. when he reached in the area of Motla in forest area, he found accused belonging to his village committing rape with the prosecutrix against her wishes. The accused ran away. The complainant brought his mother to house. He disclosed the occurrence to his brother Narinder Pal. Consequently the FIR was registered. Statements of witnesses were recorded. Site plan was prepared. The medical examination of the prosecutrix was got conducted. Vaginal swabs were sent to chemical examiner along with the parcel of the clothes of the prosecutrix. Challan was put up after completing all the codal formalities.

3. Prosecution examined a number of witnesses. The statement of accused was also recorded under Section 313 Cr.P.C. According to him, he was falsely implicated in the case. The appellant was convicted and sentenced as noticed hereinabove. Hence this appeal.

4. Learned counsel appearing for the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant.

5. Learned counsel appearing on behalf of the State has supported the prosecution case.

6. We have heard learned counsel for the parties and have gone through the judgment and record very carefully.

7. PW-1 Dr. Shelly Bajwa had proved the MLR Ex.P2. According to her opinion, spermatozoa was detected in vaginal swab and salwar. In her opinion, the sexual intercourse has probably occurred in this case. She gave her opinion Ex.P14 after receipt of report of Chemical Examiner Ex.P13. Since she has not received report of blood grouping, she could not comment upon the blood group. In her cross-examination, she deposed that the history about the sexual assault was not recorded at the instance of the prosecutrix. However, it was recorded at the instance of daughter-in-law of the prosecutrix. Ved Parkash son of the prosecutrix, was present when the prosecutrix was medico legally examined. He did not disclose any history of assault on the patient to her. She examined the body of the patient. No injury of any type including teeth bites etc. was found on any part of the body. The blood on the spot found was very small. It was taken into possession by scratching it. No blood was found on any part of the body. No blood was found on the clothes of the prosecutrix. She admitted that DNA profile was a 99.9% exact science. She also admitted that the spermatozoa found in the chemical report could only be attached to a particular person by DNA profiling otherwise it was not possible.

8. PW-2 Dr. Gurinder Pal Singh had examined the accused. According to him, there was nothing to suggest that the accused was unable to perform the sexual act.

9. PW-3 Subhash Kumar had prepared site plan Ex.P5. In his cross-examination, he deposed that he did not obtain signatures of Ved Parkash on the s