CRA No.534-SB of 2002 v. State of Haryana

Judgment

1. In the present appeal, challenge has been made to the judgment dated 5.3.2002 passed by Additional Sessions Judge, Sonepat (hereinafter as

'trial Court'), vide which, the accused, herein appellant, stands convicted for the commission of offence under Section 452 and 376 of IPC, for trespassing by entering into the house of the prosecutrix, Ms. Pinki, and committing rape upon her on 5.4.2000, and also to the order dated

13.3.2002, awarding the sentence to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/- under Section 376 IPC and to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- under Section 452 IPC. In default of payment of fine, he was to further undergo rigorous imprisonment for a period of six months. All the sentences were ordered to run concurrently.

2. The facts of the present case, as narrated in para 2 of the CRA No.534-SB of 2002 -2- impugned judgment of the learned trial Court, are as under:- "Briefly, stated facts of the present prosecution case as alleged are that on 5.4.2000, Pinki daughter of Tara Chand came to the Police Station and got recorded the statement to the effect that she has studied upto 5th Class. On that date at about 9.30 A.M. Her mother and brother and sisters have gone out of the house then Chand Ram came to her house, bolted the main gate of of the house from inside and also bolted the door of the room and forcibly caught her. When she tried to make hue and cry then Chand Singh gagged her mouth and forced her to lie on the mat and opened the string of her salwar and committed the bad act with her. She made hue and cry but there was none to hear the cries nor any neighbour heard her cries as her house is very big house. After doing the bad act, the accused after opening the door went away. After some time her mother returned and she narrated the whole thing to her mother. His father is employed at Chandigarh. Chand Ram, Kuldeep and Dilbagh have also commited the bad act with her about six and half months prior. She along with her mother, Rajbala and uncle Om Parkash, came to the Police Station and lodged the report."

3. In accordance with the above statement, formal FIR was recorded and the prosecutrix was got medico-legally examined. The accused was arrested and after completion of the investigation, final report under Section 173 Cr.P.C. was presented and the accused was sent to face trial under Section 452/376 IPC. The accused was charge-sheeted for the said sections CRA No.534-SB of 2002 -3- to which, he pleaded not guilty and claimed trial.

4. To substantiate its case, the prosecution examined as many as 16 witnesses, namely, Dr. Love Dutta as PW1, Dr. (Ms.) Manju Arora as PW2, Dr. (Ms.) P L Bansal as PW3, Dr. L C Jindal as PW4, Mohinder Singh as PW5, Om Parkash as PW6, Dr. S K Gosain as PW7, Ram Kishan as PW8, Ramesh Chander as PW9, Surinder Kumar as PW10, Dharamvir Singh as PW11, Jagbir Singh as PW12, Pinki as PW13, Raj Bala as PW14, ASI Ram Parkash as PW15 and Chand Singh as PW17.

5. The accused was examined under Section 313 Cr.P.C. while putting all the incriminating material in the prosecution case to him, which he denied and pleaded innocence. No defence evidence was led by the accused.

6. The learned trial Court, after hearing learned counsel for both the parties and on the basis of material on record, convicted and sentenced the accused-appellant for the offence and term indicated at the outset of this judgment.

7. Aggrieved against the judgment of conviction and order of sentence, the accused-appellant has preferred the present appeal before this Court.

8. Learned counsel for the appellant has argued that there is inordinate and unexplained delay in lodging the FIR and the appellant has been falsely roped in the instant case.

9. Learned counsel has argued that as per the medico-legal report of the prosecutrix prepared by Dr. (Mrs.) P L Bansal, PW3, no external mark of injury on the person of the prosecutrix was found. As per Ex.PG, the doctor has opined that the possibility of rape could not be ruled out. CRA No.534-SB of 2002 -4- Learned counsel has further contended that in the same manner, she was examined by Dr. (Ms.) Manju Arora. No injury on the person of the prosecutrix was noticed by the said doctor, therefore, learned counsel further submitted that it was a clear-cut case of consent and the appellant has been falsely implicated in the present case.

10. Learned counsel has further argued that the prosecution has failed to produce on record any permissible age proof i.e., Birth Certificate or Birth Entry. It has produced only Mohinder Singh, PW5, who has produced the School-leaving Certificate of the prosecutrix. He has further argued that the prosecutrix in her statement, has admitted the fact of her marriage on

17.2.2001, which itself goes to show that the prosecutrix was more than 17 years of age on the date of alleged occurrence which took place on

05.04.2000. The learned counsel has further argued that in the absence of Birth Entry, the school leaving certificate produced by Mohinder Singh, PW5, does not carry any weight and significance and, thus, it cannot be relied upon as the prosecution has withheld the Birth Entry which is the best piece of evidence with regard to age.

11. Learned counsel has next argued that there are material improvements in the statements of the prosecutrix and in the statement of PW14-Raj Bala, mother of the prosecutrix.

12. On the other hand, the learned counsel for the State has submitted that there is a categoric finding of the trial Court that the prosecutrix was not a consenting party. From the medico-legal report prepared by Dr. (Mrs.) P L Bansal, it is clear that rape was committed upon the prosecutrix.

13. I have heard learned counsel for the parties and perused the record. CRA No.534-SB of 2002 -5-

14. As per the statement of the prosecutrix, the occurrence took place on 5.4.2000 at about 9.00 am, the FIR was recorded on the same date at about 2.00-2.15 pm. In the case of present nature, there is always deliberation and discussion in the family of the victim as it invites social stigma, therefore, delay in such kind of cases is natural. Accordingly, the delay is not fatal to the case of the prosecution.

15. The learned trial Court has recorded a categoric finding as regards age to the effect that the prosecutrix was more than 17 years of age on the date of alleged occurrence. The marriage of the prosecutrix was solemnized on 17.2.2001. The prosecution has placed on record the school-leaving certificate issued by the Principal of Government Girls Primary School, Purkhas (Sonipat), Ex.PK, which cannot be relied upon. The Birth Certificate or the birth entry has not been placed on record. The school- leaving certificate does not mention the fact as to on the basis of which document, the date of birth in the school-leaving certificate has been recorded. In similar situation, this Court, in the case of Som Nath V. State of Punjab, 2008(3) RCR (Criminal) 510, has held as under:- "6. In the present case, at the time of medico- legal-examination, prosecutrix had given her age as 15-1/2 years. As per school certificate (Ex.PW7/A), authenticity of which has been doubted, as the record, according to the witness, was destroyed in the floods and the witness, who issued the certificate, had changed his name also and there is question mark regarding her education also. Even as per the certificate (Ex.PW7/A), no doubt that the prosecutrix was bordering 16th year of her age. Municipal record and the birth certificate has been withheld from CRA No.534-SB of 2002 -6- the Court. No effort was made to produce the same or to examine any body from the municipal records. Ossification test of the prosecutrix was also conducted. Ossification test record has been exhibited as Ex.PX. As per ossification record, radiologist has determined her age to be between 17 and 19 years. In the present case, where authenticity of school certificate is doubtful and birth certificate from the municipal record has been withheld, this Court can safely rely upon the report of the radiologist, who had conducted ossification test for determing the age."

16. The prosecutrix has made material improvements in her statement which renders the case of the prosecution highly improbable. In her first version, which is the basis of registration of FIR, the prosecutrix had stated that the appellant gagged her mouth with his hand whereas in her testimony recorded before the learned trial Court, she made improvement saying that her mouth was gagged by the appellant with his handkerchief. In the FIR, she had named Chand Ram, Kuldeep and Disbagh, also as accused for having committed rape upon her but in her testimony before the learned trial Court, she did not name them.

17. As many as three FIRs have been lodged against the appellant at the instance of the prosecutrix but in none of the case, use of any force by the appellant is established on record. As per the MLR, there was no external mark of injury found on the person of prosecutrix. Further, no mark of injury was found on the person of appellant as well. The age of the prosecutrix is also not proved on record.

18. From the facts, it is established that the marriage of the CRA No.534-SB of 2002 -7- prosecutrix took place on 17.2.2001. There is no dispute that the prosecutrix was more than 17 years of age on the date of occurrence. From the surrounding circumstances, it is proved beyond reasonable doubt that the prosecutrix is a consenting party in the present case.

19. Hon'ble Supreme Court in Abbas Ahmad Choudhary V. State of Assam, 2010 (2) RCR (Criminal) 120, has observed as under:- "5. We are however, of the opinion that the involvement of Abbas Ahmad Chaudhary seems to be uncertain. It must first be borne in mind that in her statement recorded on 17th September, 1997, the prosecutrix had not attributed any rape to Abbas Ahmad Chaudhary. Likewise, she had stated that he was not one of those who kidnapped her and taken to Jalalpur Tea Estate and on the other hand she categorically stated that while she along with Mizazul Haz and Ranju Das were returning to the village that he had joined them somewhere along the way but had still not committed rape on her. It is true that in her statement in court she has attributed rape to Abbas Ahmad Chaudhary as well, but in the light of the aforesaid contradictions some doubt is created with regard to his involvement. Some corroboration of rape could have been found if Abbas Ahmad Chaudhary too had been apprehended and taken to the police station by P.W.5-Ranjit Dutta the Constable. The Constable, however, made a statement which was corrobrated by the Investigating Officer that only two of the appellants Ranju Das and Md. Mizalul Haq along with the prosecutrix had been brought to the police CRA No.534-SB of 2002 -8- station as Abbas Ahmad Chaudhary had run away while en route to the police station. Resultantly, an inference can be rightly drawn that Abbas Ahmad Choudhary was perhaps not in the car when the complainant and two of the appellants had been apprehended by Constable Ranjit Dutta. We are, therefore, of the opinion that the involvement of Abbas Ahmad Choudhary is doubtful. We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primar consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."

20. In view of the discussions made above, the appeal in hand is allowed and the judgment of conviction dated 5.3.2010 and order of sentence dated 13.3.2010 passed by the learned Trial Court is hereby set aside. The appellant is stated to be on bail. His bail bonds shall stand discharged.

21. Since the main appeal is finally disposed of as such, the misc. applications, if any pending, shall also stand disposed of.

30.07.2010 atulsethi ( JITENDRA CHAUHAN ) JUDGE