Asha Vs. State of Haryana and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1158136
CourtPunjab and Haryana High Court
Decided OnJul-07-2014
AppellantAsha
RespondentState of Haryana and Another
Excerpt:
in the high court of punjab and haryana at chandigarh crl. a. no.d-134-db of 2014 date of decision :07. 07.2014 asha .... appellant versus state of haryana and another ..... respondents coram :- hon'ble mr. justice satish kumar mittal hon'ble mr. justice mahavir s. chauhan present: mr. j.s. hooda, advocate, for the appellant. *** satish kumar mittal , j.1. the prosecutrix has filed the instant appeal against the judgment dated 1.11.2013 passed by the court of additional sessions judge, faridabad, whereby accused ravinder (respondent no.2 herein) has been acquitted of the charges under sections 363, 366, 376, 342 ipc and section 4 of the protection of children from sexual offences act, 2012.2. briefly stated, case of the prosecution is that on 9.11.2012, after receiving a telephonic information that a quarrel was going on at the house of mohar ram (father of the accused), the police party headed by asi bhim singh (pw.3), in-charge police post sikri, reached at the spot. it was informed that mohar ram was got admitted in general hospital, ballbgarh, dass narotam 2014.07.28 13:22 i attest to the accuracy and integrity of this document crl. a. no.d-134-db of 2014 -2- in an injured condition. rajender (pw.7), father of the prosecutrix, told the police that the prosecutrix was locked in the house of mohar ram. thereupon, the prosecutrix and her parents were brought to the police post, where her parents alleged that rape was committed on their daughter. however, the prosecutrix refused to disclose anything. finding the matter to be doubtful, rapat (ex.p4) was lodged. it is the further case of the prosecution that on the next day, i.e. on 10.11.2012, on receiving information that the prosecutrix was admitted in b.k. hospital, faridabad, the police reached the hospital and recorded the statement (ex.p13) of the prosecutrix, wherein she stated that on 9.11.2012, a certain death had taken place in their relations and at 7.00 am, her parents and other family members had gone to their relatives. at about 9.00 am, the accused, who lives in her neighbourhood, came in the street and asked her the whereabouts of her parents. she told him that a certain death had occurred in their relations and they had gone to that place. at that very moment, the accused gave some parshad to the prosecutrix. after some time, rajwati, bhabhi (brother's wife) of the accused, came in the street. she proposed her to go to a certain place just for a walk and thereafter, she took her to her house. after some time, the accused came there. the prosecutrix began to feel giddy. rajwati left the room and the prosecutrix laid on the cot after feeling giddy. she further stated that her condition got deteriorated and unconsciousness began to envelop her, which was the outcome of the parshad given to her by the accused. thereafter, the accused forcibly dass narotam 2014.07.28 13:22 i attest to the accuracy and integrity of this document crl. a. no.d-134-db of 2014 -3- committed rape on her on the same cot where she was lying. when she resisted his committing rape, he also slapped her. according to the prosecutrix, this incident took place between 10.00-11.00 am. thereafter, her condition worsened and she became unconscious. after that, at 6.30 pm, her parents took her away from the house of the accused in unconscious state. on the basis of this statement, ddr (ex.p8) was recorded. after investigating the matter, cancellation report was filed by the police.3. it is the further case of the prosecution that after the filing of cancellation report by the police, the prosecutrix filed a complaint (ex.p14) in the court of judicial magistrate ist class, faridabad, against the accused and his bhabhi rajwati. the said complaint was sent to police station under section 156 (3) cr.p.c., on the basis of which formal fir was registered. the prosecutrix was got medico-legally examined. on 23.3.2013, her statement under section 164 cr.p.c was got recorded, wherein she showed her intention to live with the accused. she further stated that she had danger to her life at the hands of her parents. in view of this statement of the prosecutrix, she was sent to nari niketan, karnal. thereafter, on 2.4.2013, the prosecutrix again made statement before the illaqa magistrate to the effect that on 9.11.2012, the accused had committed rape on her in collusion with his bhabhi. the case was investigated and accused rajwati was found innocent. accused ravinder was arrested on 7.4.2013.4. after completing investigation, challan was filed and charges under sections 363, 366, 376, 342 ipc and section 4 of the protection of dass narotam 2014.07.28 13:22 i attest to the accuracy and integrity of this document crl. a. no.d-134-db of 2014 -4- children from sexual offences act, 2012, were framed against accused ravinder, to which he did not plead guilty and claimed trial.5. in support of its case, the prosecution examined eleven witnesses.6. the prosecutrix (pw.6) and her father rajender (pw.7) are the material witnesses. they have fully supported the case of the prosecution. si bhim singh (pw.3), the investigating officer of the case, also supported the case of the prosecution and proved all the documents prepared by him during investigation of the case.7. dr. sachin garg (pw.1) proved the mlr (ex.p1) of the accused and opined that there was nothing to suggest that the accused was unable to do sexual act.8. dr. rajni chauhan (pw.4), who was called for expert opinion, proved her report as ex.p11. she stated that the prosecutrix was brought with alleged sexual assault and poisoning. on examination, there was no external mark of injury on the private parts or other parts of the body of the prosecutrix. there was no bleeding. p.v. and p.v. admitted two fingers.9. dr. smriti dhami (pw.8), who medico legally examined the prosecutrix, proved the mlr of the prosecutrix as ex.p11 and her opinion (ex.p14) on an application (ex.p10) moved by the police.10. the remaining witnesses, namely pw.5 dr. lokesh gupta; pw.9 vinod kumar, lecturer, senior secondary school, sikra; pw.10 asi mukesh kumar and pw.11 constable rohtash are the formal witnesses. dass narotam 2014.07.28 13:22 i attest to the accuracy and integrity of this document crl. a. no.d-134-db of 2014 -5- 11. in his statement recorded under section 313 cr.p.c., the accused denied the incriminating evidence appearing against him in the prosecution evidence. he pleaded his innocence and false implication. he took the plea that the father and two brothers of the prosecutrix along with other members of the family had beaten his father mercilessly on 9.11.2012, regarding which a criminal case was registered against the family members of the prosecution, and this case was registered as a counter blast to the said criminal case. in defence, photographs mark a and mark b and photo copy of fir ex.d1 were tendered by the accused.12. after hearing learned public prosecutor for the state and learned counsel for the accused, the trial court acquitted the accused- respondent on the following grounds : (i) that it has been proved by the prosecution that the date of birth of the prosecutrix is 15.4.1991 and there is no dispute with regard to the fact that she was major at the time of the alleged incident. (ii) that testimony of the prosecution does not inspire confidence and it appears to be a case on her part. she has come forward with different versions at different times. in this regard, the trial court has referred to various discrepancies in the statement (ex.p13) made by the prosecutrix before the police and the complaint filed by her in the court as well as her statement in the court while appearing as pw.6. dass narotam 2014.07.28 13:22 i attest to the accuracy and integrity of this document crl. a. no.d-134-db of 2014 -6- (iii) that earlier the matter was enquired by the acp and finding the case to be false, cancellation report was filed. thereafter, the fir was registered on the complaint filed by the prosecutrix, but after registration of the fir, the prosecutrix made statement (ex.p15) under section 164 cr.p.c., before the magistrate, to the effect that she wanted to live with accused ravinder and was feeling danger to her life at the hands of her parents. in view of the said statement, she was sent to nari niketan. (iv) that in view of the statement (ex.p15) under section 164 cr.p.c., made by the prosecutrix before the magistrate, the photographs mark a and mark b, produced by the accused in his defence, are sufficient to prove that the prosecutrix was having intimate relations with the accused and the present case is the counter-blast to the fir (ex.d1) got registered by the accused party against the complainant party. (v) that as per the medical evidence available on record, there was no injury mark on the private parts of the prosecutrix. the injuries on her person as per mlr (ex.p8) and story of poisoning appears to be a subsequent event.13. against the aforesaid judgment of acquittal, the instant appeal has been filed by the prosecutrix.14. learned counsel for the appellant argued that in the present case, the trial court has not properly appreciated the evidence led by the dass narotam 2014.07.28 13:22 i attest to the accuracy and integrity of this document crl. a. no.d-134-db of 2014 -7- prosecution in support of its case and has acquitted the accused on surmises and conjectures by giving him benefit of doubt in an illegal and arbitrary manner. he argued that the prosecutrix has fully supported the prosecution version while appearing in the court and her statement should have been given more weightage than her statement made under section 164 cr.p.c. it has also been argued that the trial court has wrongly concluded that the present case lodged by the prosecutrix was a counter blast to the criminal case got registered by the accused party against the complainant party for giving severe beatings to father of the accused.15. after hearing learned counsel for the appellant and going through the impugned judgment passed by the trial court, we do not find any ground to interfere in the impugned judgment of acquittal. in this case, it has come in evidence that on 9.11.2012, asi bhim singh (pw.3) received a telephonic information that a quarrel was going on in the house of mohar ram, father of the accused. when the police reached at the spot, it was informed that injured mohar ram was got admitted in general hospital, ballabgarh. thereupon, the police went to the hospital and recorded the statement of the injured, and it has not been disputed that on the basis of the said statement, fir (ex.d1) was registered against the father and two brothers of the prosecutrix. at the house of mohar ram, the prosecutrix and her parents were present. father of the prosecutrix, namely rajender (pw.7), told that the prosecutrix was locked in the house of mohar ram. it was alleged by father of the prosecutrix that his daughter was raped, but dass narotam 2014.07.28 13:22 i attest to the accuracy and integrity of this document crl. a. no.d-134-db of 2014 -8- when the prosecutrix was asked to make statement, she did not disclose any thing. on the next day, statement of the prosecutrix was recorded, where she disclosed that on the previous day, when her parents were not present in the house, the accused gave her parshad and then committed rape on her in his own house, where she was taken by rajwati, bhabhi of the accused. undisputedly, during investigation, rajwati was found innocent and no challan was filed against her. there is no evidence available on record, which may indicate that the prosecutrix was given any sedative substance, due to which she became unconscious. this fact further creates doubt in the prosecution version. subsequently, statement of the prosecutrix was also recorded under section 164 cr.p.c., where she did not support the allegations of rape, rather she wanted to live with the accused and expressed danger to her life at the hands of her parents. this fact further indicates that no forcible rape was committed on the prosecutrix, rather she at her own was having relationship with the accused. later on, while appearing in the court as pw.6, the prosecutrix alleged the commission of rape by the accused.16. undisputedly, the prosecutrix was major at the time of the incident. in view of various discrepancies discussed in the statement of the prosecutrix before the police, magistrate and in the court as pw.6, the learned trial court came to the conclusion that testimony of the prosecutrix does not inspire confidence and it appears to be a case of consent, as she was major at the time of the alleged rape. the learned trial court has also dass narotam 2014.07.28 13:22 i attest to the accuracy and integrity of this document crl. a. no.d-134-db of 2014 -9- relied upon the photographs mark a and mark b produced by the accused in his defence, which clearly show that the prosecutrix was having intimate relations with the accused and the present case was a counter-blast to the fir (ex.d1) got registered by the accused party against the complainant party. the learned trial court has also appreciated the medical evidence in the light of the prosecution version and came to the conclusion that even the medical evidence does not support the alleged rape. in our opinion, the trial court has properly appreciated the evidence led by the prosecution and reached to the conclusion that the alleged rape is a case of consent and the prosecution has miserably failed to establish the commission of rape on the prosecutrix. in our view, in the light of the evidence led by the prosecution in this case, the aforesaid view is the only possible view. therefore, the impugned judgment does not require any interference.17. consequently, this appeal is dismissed, summarily. ( satish kumar mittal ) judge july 07, 2014 ( mahavir s. chauhan ) ndj judge dass narotam 2014.07.28 13:22 i attest to the accuracy and integrity of this document
Judgment:

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. A. No.D-134-DB of 2014 DATE OF DECISION :

07. 07.2014 Asha .... APPELLANT Versus State of Haryana and another ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN Present: Mr. J.S. Hooda, Advocate, for the appellant. *** SATISH KUMAR MITTAL , J.

1. The prosecutrix has filed the instant appeal against the judgment dated 1.11.2013 passed by the court of Additional Sessions Judge, Faridabad, whereby accused Ravinder (respondent No.2 herein) has been acquitted of the charges under Sections 363, 366, 376, 342 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012.

2. Briefly stated, case of the prosecution is that on 9.11.2012, after receiving a telephonic information that a quarrel was going on at the house of Mohar Ram (father of the accused), the police party headed by ASI Bhim Singh (PW.3), In-charge Police Post Sikri, reached at the spot. It was informed that Mohar Ram was got admitted in General Hospital, Ballbgarh, Dass Narotam 2014.07.28 13:22 I attest to the accuracy and integrity of this document Crl. A. No.D-134-DB of 2014 -2- in an injured condition. Rajender (PW.7), father of the prosecutrix, told the police that the prosecutrix was locked in the house of Mohar Ram. Thereupon, the prosecutrix and her parents were brought to the Police Post, where her parents alleged that rape was committed on their daughter. However, the prosecutrix refused to disclose anything. Finding the matter to be doubtful, Rapat (Ex.P4) was lodged. It is the further case of the prosecution that on the next day, i.e. on 10.11.2012, on receiving information that the prosecutrix was admitted in B.K. Hospital, Faridabad, the police reached the Hospital and recorded the statement (Ex.P13) of the prosecutrix, wherein she stated that on 9.11.2012, a certain death had taken place in their relations and at 7.00 AM, her parents and other family members had gone to their relatives. At about 9.00 AM, the accused, who lives in her neighbourhood, came in the street and asked her the whereabouts of her parents. She told him that a certain death had occurred in their relations and they had gone to that place. At that very moment, the accused gave some Parshad to the prosecutrix. After some time, Rajwati, Bhabhi (brother's wife) of the accused, came in the street. She proposed her to go to a certain place just for a walk and thereafter, she took her to her house. After some time, the accused came there. The prosecutrix began to feel giddy. Rajwati left the room and the prosecutrix laid on the cot after feeling giddy. She further stated that her condition got deteriorated and unconsciousness began to envelop her, which was the outcome of the Parshad given to her by the accused. Thereafter, the accused forcibly Dass Narotam 2014.07.28 13:22 I attest to the accuracy and integrity of this document Crl. A. No.D-134-DB of 2014 -3- committed rape on her on the same cot where she was lying. When she resisted his committing rape, he also slapped her. According to the prosecutrix, this incident took place between 10.00-11.00 AM. Thereafter, her condition worsened and she became unconscious. After that, at 6.30 PM, her parents took her away from the house of the accused in unconscious state. On the basis of this statement, DDR (Ex.P8) was recorded. After investigating the matter, cancellation report was filed by the police.

3. It is the further case of the prosecution that after the filing of cancellation report by the police, the prosecutrix filed a complaint (Ex.P14) in the court of Judicial Magistrate Ist Class, Faridabad, against the accused and his Bhabhi Rajwati. The said complaint was sent to Police Station under Section 156 (3) Cr.P.C., on the basis of which formal FIR was registered. The prosecutrix was got medico-legally examined. On 23.3.2013, her statement under Section 164 Cr.P.C was got recorded, wherein she showed her intention to live with the accused. She further stated that she had danger to her life at the hands of her parents. In view of this statement of the prosecutrix, she was sent to Nari Niketan, Karnal. Thereafter, on 2.4.2013, the prosecutrix again made statement before the Illaqa Magistrate to the effect that on 9.11.2012, the accused had committed rape on her in collusion with his Bhabhi. The case was investigated and accused Rajwati was found innocent. Accused Ravinder was arrested on 7.4.2013.

4. After completing investigation, challan was filed and charges under Sections 363, 366, 376, 342 IPC and Section 4 of the Protection of Dass Narotam 2014.07.28 13:22 I attest to the accuracy and integrity of this document Crl. A. No.D-134-DB of 2014 -4- Children from Sexual Offences Act, 2012, were framed against accused Ravinder, to which he did not plead guilty and claimed trial.

5. In support of its case, the prosecution examined eleven witnesses.

6. The prosecutrix (PW.6) and her father Rajender (PW.7) are the material witnesses. They have fully supported the case of the prosecution. SI Bhim Singh (PW.3), the Investigating Officer of the case, also supported the case of the prosecution and proved all the documents prepared by him during investigation of the case.

7. Dr. Sachin Garg (PW.1) proved the MLR (Ex.P1) of the accused and opined that there was nothing to suggest that the accused was unable to do sexual act.

8. Dr. Rajni Chauhan (PW.4), who was called for expert opinion, proved her report as Ex.P11. She stated that the prosecutrix was brought with alleged sexual assault and poisoning. On examination, there was no external mark of injury on the private parts or other parts of the body of the prosecutrix. There was no bleeding. P.V. and P.V. admitted two fingers.

9. Dr. Smriti Dhami (PW.8), who medico legally examined the prosecutrix, proved the MLR of the prosecutrix as Ex.P11 and her opinion (Ex.P14) on an application (Ex.P10) moved by the police.

10. The remaining witnesses, namely PW.5 Dr. Lokesh Gupta; PW.9 Vinod Kumar, Lecturer, Senior Secondary School, Sikra; PW.10 ASI Mukesh Kumar and PW.11 Constable Rohtash are the formal witnesses. Dass Narotam 2014.07.28 13:22 I attest to the accuracy and integrity of this document Crl. A. No.D-134-DB of 2014 -5- 11. In his statement recorded under Section 313 Cr.P.C., the accused denied the incriminating evidence appearing against him in the prosecution evidence. He pleaded his innocence and false implication. He took the plea that the father and two brothers of the prosecutrix along with other members of the family had beaten his father mercilessly on 9.11.2012, regarding which a criminal case was registered against the family members of the prosecution, and this case was registered as a counter blast to the said criminal case. In defence, photographs Mark A and Mark B and photo copy of FIR Ex.D1 were tendered by the accused.

12. After hearing learned Public Prosecutor for the State and learned counsel for the accused, the trial court acquitted the accused- respondent on the following grounds : (i) That it has been proved by the prosecution that the date of birth of the prosecutrix is 15.4.1991 and there is no dispute with regard to the fact that she was major at the time of the alleged incident. (ii) That testimony of the prosecution does not inspire confidence and it appears to be a case on her part. She has come forward with different versions at different times. In this regard, the trial court has referred to various discrepancies in the statement (Ex.P13) made by the prosecutrix before the police and the complaint filed by her in the court as well as her statement in the court while appearing as PW.6. Dass Narotam 2014.07.28 13:22 I attest to the accuracy and integrity of this document Crl. A. No.D-134-DB of 2014 -6- (iii) That earlier the matter was enquired by the ACP and finding the case to be false, cancellation report was filed. Thereafter, the FIR was registered on the complaint filed by the prosecutrix, but after registration of the FIR, the prosecutrix made statement (Ex.P15) under Section 164 Cr.P.C., before the Magistrate, to the effect that she wanted to live with accused Ravinder and was feeling danger to her life at the hands of her parents. In view of the said statement, she was sent to Nari Niketan. (iv) That in view of the statement (Ex.P15) under Section 164 Cr.P.C., made by the prosecutrix before the Magistrate, the photographs Mark A and Mark B, produced by the accused in his defence, are sufficient to prove that the prosecutrix was having intimate relations with the accused and the present case is the counter-blast to the FIR (Ex.D1) got registered by the accused party against the complainant party. (v) That as per the medical evidence available on record, there was no injury mark on the private parts of the prosecutrix. The injuries on her person as per MLR (Ex.P8) and story of poisoning appears to be a subsequent event.

13. Against the aforesaid judgment of acquittal, the instant appeal has been filed by the prosecutrix.

14. Learned counsel for the appellant argued that in the present case, the trial court has not properly appreciated the evidence led by the Dass Narotam 2014.07.28 13:22 I attest to the accuracy and integrity of this document Crl. A. No.D-134-DB of 2014 -7- prosecution in support of its case and has acquitted the accused on surmises and conjectures by giving him benefit of doubt in an illegal and arbitrary manner. He argued that the prosecutrix has fully supported the prosecution version while appearing in the court and her statement should have been given more weightage than her statement made under Section 164 Cr.P.C. It has also been argued that the trial court has wrongly concluded that the present case lodged by the prosecutrix was a counter blast to the criminal case got registered by the accused party against the complainant party for giving severe beatings to father of the accused.

15. After hearing learned counsel for the appellant and going through the impugned judgment passed by the trial court, we do not find any ground to interfere in the impugned judgment of acquittal. In this case, it has come in evidence that on 9.11.2012, ASI Bhim Singh (PW.3) received a telephonic information that a quarrel was going on in the house of Mohar Ram, father of the accused. When the police reached at the spot, it was informed that injured Mohar Ram was got admitted in General Hospital, Ballabgarh. Thereupon, the police went to the Hospital and recorded the statement of the injured, and it has not been disputed that on the basis of the said statement, FIR (Ex.D1) was registered against the father and two brothers of the prosecutrix. At the house of Mohar Ram, the prosecutrix and her parents were present. Father of the prosecutrix, namely Rajender (PW.7), told that the prosecutrix was locked in the house of Mohar Ram. It was alleged by father of the prosecutrix that his daughter was raped, but Dass Narotam 2014.07.28 13:22 I attest to the accuracy and integrity of this document Crl. A. No.D-134-DB of 2014 -8- when the prosecutrix was asked to make statement, she did not disclose any thing. On the next day, statement of the prosecutrix was recorded, where she disclosed that on the previous day, when her parents were not present in the house, the accused gave her Parshad and then committed rape on her in his own house, where she was taken by Rajwati, Bhabhi of the accused. Undisputedly, during investigation, Rajwati was found innocent and no challan was filed against her. There is no evidence available on record, which may indicate that the prosecutrix was given any sedative substance, due to which she became unconscious. This fact further creates doubt in the prosecution version. Subsequently, statement of the prosecutrix was also recorded under Section 164 Cr.P.C., where she did not support the allegations of rape, rather she wanted to live with the accused and expressed danger to her life at the hands of her parents. This fact further indicates that no forcible rape was committed on the prosecutrix, rather she at her own was having relationship with the accused. Later on, while appearing in the court as PW.6, the prosecutrix alleged the commission of rape by the accused.

16. Undisputedly, the prosecutrix was major at the time of the incident. In view of various discrepancies discussed in the statement of the prosecutrix before the police, Magistrate and in the court as PW.6, the learned trial court came to the conclusion that testimony of the prosecutrix does not inspire confidence and it appears to be a case of consent, as she was major at the time of the alleged rape. The learned trial court has also Dass Narotam 2014.07.28 13:22 I attest to the accuracy and integrity of this document Crl. A. No.D-134-DB of 2014 -9- relied upon the photographs Mark A and Mark B produced by the accused in his defence, which clearly show that the prosecutrix was having intimate relations with the accused and the present case was a counter-blast to the FIR (Ex.D1) got registered by the accused party against the complainant party. The learned trial court has also appreciated the medical evidence in the light of the prosecution version and came to the conclusion that even the medical evidence does not support the alleged rape. In our opinion, the trial court has properly appreciated the evidence led by the prosecution and reached to the conclusion that the alleged rape is a case of consent and the prosecution has miserably failed to establish the commission of rape on the prosecutrix. In our view, in the light of the evidence led by the prosecution in this case, the aforesaid view is the only possible view. Therefore, the impugned judgment does not require any interference.

17. Consequently, this appeal is dismissed, summarily. ( SATISH KUMAR MITTAL ) JUDGE July 07, 2014 ( MAHAVIR S. CHAUHAN ) ndj JUDGE Dass Narotam 2014.07.28 13:22 I attest to the accuracy and integrity of this document