Surender @ Narender @ Harender Vs. State of Haryana - Court Judgment

SooperKanoon Citationsooperkanoon.com/1143297
CourtPunjab and Haryana High Court
Decided OnMay-14-2014
AppellantSurender @ Narender @ Harender
RespondentState of Haryana
Excerpt:
verma sunil cra s no.718 sb of 2012 1 2014.05.29 12:05 in the high court of punjab and haryana at chandigarh cra s no.718 sb of 2012 decided on :14. .05. 2014 surender @ narender @ harender .... appellant versus state of haryana .... respondent cra s no.250 sb of 2012 sugreev @ sugreem @ khenya .... appellant versus state of haryana .... respondents cra s no.378 sb of 2012 rajesh .... appellant versus state of haryana and others .... respondents 1. whether reporters of local newspapers may be allowed to see the judgment?.2. to be referred to the reporters or not?.3. whether the judgment should be reported in the digest?. coram : hon'ble mr. justice k. c. puri present: mr. ajit sihag, advocate, for the appellant in cra no.s.718 sb of 2012 . mr.jainender saini and mr. s.sandhu advocates for the appellants in cra no.s. 250 sb of 2012 and cra no.s. 378 sb of 2012 mr. amit kaushik, sr. dag, haryana in all appeals. cra s no.718 sb of 2012 2 k. c. puri, j.by this common judgment, i intend to dispose of cra s no.718 sb of 2012 titled as surender @ narender @ harender versus state of haryana and cra no.s.250 sb of 2012 titled as sugreev @ sugreem @ khenya versus state of haryana and cra no.s.378 sb of 2012 titled as rajesh versus state of haryana and others, as all these appeals have arisen out of the same fir, judgment and order. for convenience facts are being taken from cra no.s.718 sb of 2012 titled as surender @ narender @ harender versus state of haryana.2. all the aforesaid appellants have directed their appeals against the judgment dated 22.12.2011 and order dated 24.12.2011, passed by shri pardeep kumar, additional sessions judge, (fast track court), hisar vide which the accused surender have been convicted for an offence under sections 363, 366 and 376 of the ipc and accused rajesh and sugreev have been convicted for an offence under sections 363/366 read with section 120-b of the ipc and sentenced and surender to undergo rigorous imprisonment for seven years and to pay a fine of rs.1000/- and in default of payment of fine to further undergo ri for two months under section 376 of the ipc ; he is further sentenced to undergo rigorous imprisonment for three years and to pay a fine of rs.500/- and in default of payment of fine to further undergo ri for one month under section 363 of the ipc and further sentenced to undergo rigorous imprisonment for three years and to pay a fine of rs.500/- and in default of payment of fine to further undergo ri for one month under section 363 of the ipc. accused sugreev and cra s no.718 sb of 2012 3 rajesh were also sentenced to undergo rigorous imprisonment for three years and to pay a fine of rs.500/- each and in default of payment of fine to further undergo ri for one month under section 363 of the ipc read with section 120-b of the ipc and they were further sentenced to undergo rigorous imprisonment for three years and to pay a fine of rs.500/- and in default of payment of fine to further undergo ri for one month under section 366 of the ipc read with section 120-b of the ipc. all the substantive sentences were, however, ordered to run concurrently.3. briefly stated the case of the prosecution is that on 18.2.2010 complainant moved an application to station house officer, police station sadar hisar that her daughter prosecutrix had left school after 5th class and helps her in household work. her husband used to do work of digging tube- well and narender son of ram swarup used to do same work with her husband. narender usually visit their house. on 16.02.2010 at 6.30p.m. prosecutrix went to take milk from the house of her uncle and did not return in the night. they searched for her in their village but did not find. they also came to know that narender and rajesh were also not present at their houses. they believed that narender and rakesh had taken away prosecutrix by enticing her. on the basis of aforesaid statement, fir was recorded. later on prosecutrix was recovered. accused were arrested. after completion of investigation, challan was presented against the accused.4. copies of the documents as relied upon by the prosecution were supplied to the accused free of costs. the illqua magistrate vide order dated 01.05.2010 committed the case to the court of session for trial as the offence alleged against the accused was exclusively triable by the cra s no.718 sb of 2012 4 said court.5. the trial court, framed charges under sections 363/366 read with section 120-b i.p.c. against all the accused whereas framed specific charge under section 376 of the ipc was framed against the accused surender @ narender @ harender to which, they pleaded not guilty and claimed trial.6. in support of its case, the prosecution examined pw-1 si hawa singh, pw-2 constable sunder, pw-3 rattan singh, easi pw-4 mahan singh, patwari, pw-5 ehc rajbir, pw-6 ehc chaili ram, pw-7 dr. anjali, pw-8 dr. kanta goel, pw-9 promila, pw-10 si/sho dharambir, pw-11 dr. dalal singh, pw-12 prosecutrix, pw-13 santosh, pw-14 asi bhana ram and closed the prosecution evidence.7. in their statements recorded under section 313 cr.p.c., the accused denied all the prosecution allegations and pleaded their false implication. in defence they examined dw-1 dalip singh and closed the same.8. the trial court, after hearing the learned counsel for the parties convicted and sentenced the accused vide judgment dated 22.12.2011 and order dated 24.12.2011, as narrated above.9. aggrieved by the aforesaid judgment dated 22.12.2011 and order dated 24.12.2011, the present appeals have been directed.10. i have heard learned counsel for the parties and have gone through the records of the case with their able assistance.11. the learned trial court after martialling the facts of the case reached to the conclusion that prosecutrix was above 16 years of age but cra s no.718 sb of 2012 5 was below 18 years of age. the question arises whether on the facts of the present case, the appellants have been rightly convicted by the trial court; the answer to that question is in negative.12. the prosecutrix was examined under section 164 of the cr.p.c. in her statement she has not made any imputation in respect of allegation of rape against any of the appellants much less surender. in the cross- examination the prosecutrix has stated that surender used to visit their house regularly even when she was alone in the house. she has stated that surinder used to fondle her and even committed rape during that time. strange enough that no complaint was made by the prosecutrix to any one during the period of two years. surender was visiting to her house. the accused have put love letters mark a and b to the prosecutrix to which she denied. the prosecutrix has stated that on 16.2.2010 surender visited her house in the morning at 6.00a.m. and at that time her entire family members were present. he called her outside and told her to meet him at 5.00p.m., at bus stand. she has further stated that she did not disclose the factum of visit of surender to her parents. she has further stated that she went to the bus stand at 6p.m. and kept sitting and waiting for surender for half an hour. she has stated that so many people were present at the bus stand. prosecutrix has further stated that she remained with surender for ten days at different places including rajgarh, langer kheri and mangoli. it cannot be said that without the consent of prosecutrix she can be taken to three different places. prosecutrix has not raised any little finger at any of the said three places. love letters further corroborates the fact that prosecutrix has voluntarily accompanied surender. prosecutrix has stated cra s no.718 sb of 2012 6 that one ladda was also mentioned as accused by her but he has not been arrayed as accused. the prosecutrix has stated that rajesh and sugreev have also committed rape upon her but this version given by the prosecutrix did not find favour with the trial court and sugreev and rajesh have not been convicted under section 376 of the ipc. in the original complaint ex.pa the name of sugreev accused is not mentioned. the prosecutrix has stated that all the three accused remained with her for next ten days but that story runs counter to the version given by the complainant santosh, who has stated that on the next day of occurrence rajesh and sugreev were found in the village. it so seems that sugreev is stated to be a taxi driver and he seems to have been arrayed as accused on that account.13. the real facts seems to be that the prosecutrix has accompanied surender voluntarily and stayed with him at different places voluntarily and have a sex with him. sugreev accused seems to have been arrayed as an accused being a taxi driver.14. as per medico-legal report prosecutrix was habitual to sexual intercourse and no injury was found on her body. although it is not always necessary that there must be injuries on the person of prosecutrix but coupled with other circumstantial evidence that prosecutrix has voluntarily accompanied surender goes a long way to disprove the factum of rape and kidnapping against all the accused.15. presence of semen on salwar of the prosecutrix and underwear of the accused simply prove the factum of sexual intercourse but does not prove the factum of rape.16. in view of the above discussion, the judgment of the trial court cra s no.718 sb of 2012 7 does not sustain the test of legal scrutiny.17. consequently, the appeal preferred by the accused-appellants stand accepted. the accused stand acquitted from the charges levelled against them after giving them benefit of doubt. the fine, if any, be refunded to the accused/appellants after the period of appeal/revision, if any, in accordance with law.18. surender accused/appellant is stated to be in custody for the last more than four years whereas accused rajesh and sugreev are on bail after undergoing incarceration for a period of six years and 21 respectively. accused surender be released forthwith in case he is not required in any other case. the bail bonds of accused rajesh and sugreev stand cancelled.19. a copy of this order be conveyed to the trial court for strict compliance. ( k. c. puri ) may 14 , 2014 judge sv
Judgment:

Verma Sunil CRA S No.718 SB of 2012 1 2014.05.29 12:05 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA S No.718 SB of 2012 Decided on :

14. .05. 2014 Surender @ Narender @ Harender .... Appellant versus State of Haryana .... Respondent CRA S No.250 SB of 2012 Sugreev @ Sugreem @ Khenya .... appellant versus State of Haryana .... Respondents CRA S No.378 SB of 2012 Rajesh .... Appellant versus State of Haryana and others .... Respondents 1. Whether Reporters of Local Newspapers may be allowed to see the judgment?.

2. To be referred to the Reporters or not?.

3. Whether the judgment should be reported in the Digest?. CORAM : HON'BLE MR. JUSTICE K. C. PURI Present: Mr. Ajit Sihag, Advocate, for the appellant in CRA No.S.718 SB of 2012 . Mr.Jainender Saini and Mr. S.Sandhu Advocates for the appellants in CRA No.S. 250 SB of 2012 and CRA No.S. 378 SB of 2012 Mr. Amit Kaushik, Sr. DAG, Haryana in all appeals. CRA S No.718 SB of 2012 2 K. C. PURI, J.

By this common judgment, I intend to dispose of CRA S No.718 SB of 2012 titled as Surender @ Narender @ Harender versus State of Haryana and CRA No.S.250 SB of 2012 titled as Sugreev @ Sugreem @ Khenya versus State of Haryana and CRA No.S.378 SB of 2012 titled as Rajesh versus State of Haryana and others, as all these appeals have arisen out of the same FIR, judgment and order. For convenience facts are being taken from CRA No.S.718 SB of 2012 titled as Surender @ Narender @ Harender versus State of Haryana.

2. All the aforesaid appellants have directed their appeals against the judgment dated 22.12.2011 and order dated 24.12.2011, passed by Shri Pardeep Kumar, Additional Sessions Judge, (Fast Track Court), Hisar vide which the accused Surender have been convicted for an offence under Sections 363, 366 and 376 of the IPC and accused Rajesh and Sugreev have been convicted for an offence under Sections 363/366 read with Section 120-B of the IPC and sentenced and Surender to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo RI for two months under Section 376 of the IPC ; he is further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- and in default of payment of fine to further undergo RI for one month under Section 363 of the IPC and further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- and in default of payment of fine to further undergo RI for one month under Section 363 of the IPC. Accused Sugreev and CRA S No.718 SB of 2012 3 Rajesh were also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- each and in default of payment of fine to further undergo RI for one month under Section 363 of the IPC read with Section 120-B of the IPC and they were further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- and in default of payment of fine to further undergo RI for one month under Section 366 of the IPC read with Section 120-B of the IPC. All the substantive sentences were, however, ordered to run concurrently.

3. Briefly stated the case of the prosecution is that on 18.2.2010 complainant moved an application to Station House Officer, Police Station Sadar Hisar that her daughter prosecutrix had left school after 5th class and helps her in household work. Her husband used to do work of digging tube- well and Narender son of Ram Swarup used to do same work with her husband. Narender usually visit their house. On 16.02.2010 at 6.30p.m. prosecutrix went to take milk from the house of her uncle and did not return in the night. They searched for her in their village but did not find. They also came to know that Narender and Rajesh were also not present at their houses. They believed that Narender and Rakesh had taken away prosecutrix by enticing her. On the basis of aforesaid statement, FIR was recorded. Later on prosecutrix was recovered. Accused were arrested. After completion of investigation, challan was presented against the accused.

4. Copies of the documents as relied upon by the prosecution were supplied to the accused free of costs. The Illqua Magistrate vide order dated 01.05.2010 committed the case to the Court of Session for trial as the offence alleged against the accused was exclusively triable by the CRA S No.718 SB of 2012 4 said Court.

5. The trial Court, framed charges under Sections 363/366 read with Section 120-B I.P.C. against all the accused whereas framed specific charge under Section 376 of the IPC was framed against the accused Surender @ Narender @ Harender to which, they pleaded not guilty and claimed trial.

6. In support of its case, the prosecution examined PW-1 SI Hawa Singh, PW-2 Constable Sunder, PW-3 Rattan Singh, EASI PW-4 Mahan Singh, Patwari, PW-5 EHC Rajbir, PW-6 EHC Chaili Ram, PW-7 Dr. Anjali, PW-8 Dr. Kanta Goel, PW-9 Promila, PW-10 SI/SHO Dharambir, PW-11 Dr. Dalal Singh, PW-12 prosecutrix, PW-13 Santosh, PW-14 ASI Bhana Ram and closed the prosecution evidence.

7. In their statements recorded under Section 313 Cr.P.C., the accused denied all the prosecution allegations and pleaded their false implication. In defence they examined DW-1 Dalip Singh and closed the same.

8. The trial Court, after hearing the learned counsel for the parties convicted and sentenced the accused vide judgment dated 22.12.2011 and order dated 24.12.2011, as narrated above.

9. Aggrieved by the aforesaid judgment dated 22.12.2011 and order dated 24.12.2011, the present appeals have been directed.

10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.

11. The learned trial Court after martialling the facts of the case reached to the conclusion that prosecutrix was above 16 years of age but CRA S No.718 SB of 2012 5 was below 18 years of age. The question arises whether on the facts of the present case, the appellants have been rightly convicted by the trial Court; The answer to that question is in negative.

12. The prosecutrix was examined under Section 164 of the Cr.P.C. In her statement she has not made any imputation in respect of allegation of rape against any of the appellants much less Surender. In the cross- examination the prosecutrix has stated that Surender used to visit their house regularly even when she was alone in the house. She has stated that Surinder used to fondle her and even committed rape during that time. Strange enough that no complaint was made by the prosecutrix to any one during the period of two years. Surender was visiting to her house. The accused have put love letters mark A and B to the prosecutrix to which she denied. The prosecutrix has stated that on 16.2.2010 Surender visited her house in the morning at 6.00a.m. and at that time her entire family members were present. He called her outside and told her to meet him at 5.00p.m., at bus stand. She has further stated that she did not disclose the factum of visit of Surender to her parents. She has further stated that she went to the bus stand at 6p.m. and kept sitting and waiting for Surender for half an hour. She has stated that so many people were present at the bus stand. Prosecutrix has further stated that she remained with Surender for ten days at different places including Rajgarh, Langer Kheri and Mangoli. It cannot be said that without the consent of prosecutrix she can be taken to three different places. Prosecutrix has not raised any little finger at any of the said three places. Love letters further corroborates the fact that prosecutrix has voluntarily accompanied Surender. Prosecutrix has stated CRA S No.718 SB of 2012 6 that one Ladda was also mentioned as accused by her but he has not been arrayed as accused. The prosecutrix has stated that Rajesh and Sugreev have also committed rape upon her but this version given by the prosecutrix did not find favour with the trial Court and Sugreev and Rajesh have not been convicted under Section 376 of the IPC. In the original complaint Ex.PA the name of Sugreev accused is not mentioned. The prosecutrix has stated that all the three accused remained with her for next ten days but that story runs counter to the version given by the complainant Santosh, who has stated that on the next day of occurrence Rajesh and Sugreev were found in the village. It so seems that Sugreev is stated to be a taxi driver and he seems to have been arrayed as accused on that account.

13. The real facts seems to be that the prosecutrix has accompanied Surender voluntarily and stayed with him at different places voluntarily and have a sex with him. Sugreev accused seems to have been arrayed as an accused being a taxi driver.

14. As per medico-legal report prosecutrix was habitual to sexual intercourse and no injury was found on her body. Although it is not always necessary that there must be injuries on the person of prosecutrix but coupled with other circumstantial evidence that prosecutrix has voluntarily accompanied Surender goes a long way to disprove the factum of rape and kidnapping against all the accused.

15. Presence of semen on salwar of the prosecutrix and underwear of the accused simply prove the factum of sexual intercourse but does not prove the factum of rape.

16. In view of the above discussion, the judgment of the trial Court CRA S No.718 SB of 2012 7 does not sustain the test of legal scrutiny.

17. Consequently, the appeal preferred by the accused-appellants stand accepted. The accused stand acquitted from the charges levelled against them after giving them benefit of doubt. The fine, if any, be refunded to the accused/appellants after the period of appeal/revision, if any, in accordance with law.

18. Surender accused/appellant is stated to be in custody for the last more than four years whereas accused Rajesh and Sugreev are on bail after undergoing incarceration for a period of six years and 21 respectively. Accused Surender be released forthwith in case he is not required in any other case. The bail bonds of accused Rajesh and Sugreev stand cancelled.

19. A copy of this order be conveyed to the trial Court for strict compliance. ( K. C. PURI ) May 14 , 2014 JUDGE sv