DATE OF DECISION: MARCH 04 v. The State of Haryana & Ors.

We have heard the learned counsel for the applicant and gone through the judgment of the trial Court. In this case, both the accused are real brothers. At the time of the alleged occurrence, their age was 32 years and 28 years, respectively. The complainant Krishna Devi is having three daughters. At the time of the occurrence, two were married and the younger one, namely, Suman (prosecutrix) was about 12 years of age and was unmarried. The Crl.Misc. No.A. 713-MA of 2009 (O&M) -2- complainant along with her son-in-law and daughter, namely, Saroj, was residing in village Shera. Suman was also residing with her. Both the accused are closely related to her. They are sons of Tara Chand, who was the son of her mother-in-law from second husband, who was the brother of the first husband, as her mother-in-law performed Kareva marriage with her brother-in-law Ratia. It is also admitted position that 1/2 years prior to the date of occurrence, the husband of the complainant had executed a registered sale deed dated 6.1.2005 in favour of accused Ramesh with regard to 61 Kanals 11 Marlas of land situated in village Shera for a sale consideration of Rs.16,20,000/-. One of the daughters of the complainant, namely, Saroj, with whom she has been residing, filed a Civil Suit challenging the said decree executed by her father in favour of the accused on the grounds of fraud etc. The said Civil Suit was dismissed on account of non-payment of court-fees vide order dated 15.5.2006. Against the said order, Saroj filed Civil Revision before this Court in which this Court vide order dated 11.3.2008 held that the impugned order was appealable. Thereafter, plaintiff Saroj filed Civil Appeal which was dismissed by Additional District Judge, Panipat vide judgment dated 11.10.2008. It is pertinent to mention here that soon after the rejection of the plaint filed in Civil Suit by the plaintiff Saroj vide order dated 15.5.2006, the applicant made a written complaint to the S.P., Panipat on 11.11.2006 alleging therein that her younger daughter Suman had been abducted by accused Ramesh forcibly with bad intention on 8.11.2006 at about 7.00 PM. She moved an application to the police with regard to the said incident, and when the police took action on that application, the accused persons convened the Panchayat and put pressure on her to compromise the matter. On Crl.Misc. No.A. 713-MA of 2009 (O&M) -3-

10.11.2006, the accused persons assured her to hand over her daughter, but they kept her daughter with them and she afraid that her daughter would be raped and murdered because the accused persons also threatened her with dire consequences. On the same day, the medico-legal examination of the prosecutrix was got conducted. It is not clear how the prosecutrix became available to the police. However, subsequently the complainant stated that on 8.11.2006 itself the prosecutrix came back in the evening and told that she was subjected to rape by two or three persons. After investigation, the challan was filed and charge was framed against both the accused under Sections 363, 366 and 376(2)(g) read with Section 34 IPC. During the trial, in support of its case, the prosecution examined eight witnesses, including PW6-Krishna Devi (complainant), PW5-Suman (prosecutrix), PW1-Dr. Alok Jain and PW2-Dr. Rekha Verma. Both the accused when examined under Section 313 Cr.P.C., denied the allegations of the prosecution and pleaded false implication. The accused had taken the defence that they have been falsely implicated because of the civil litigation with an intention to pressurize them to return the land as the price of the land had gone very high and they have refused to return the same. Hence, a false case was planted on them. In defence, several documents with regard to Civil Suit and the sale deed, including the judgments up to the High Court, were placed on record. The trial Court after appreciating the evidence and examining the documents available on the record, acquitted both the accused by giving them the benefit of doubt. It has been found by the trial Court that the husband of the complainant executed a registered sale deed 6.1.2005 in Crl.Misc. No.A. 713-MA of 2009 (O&M) -4- favour of the accused for a sale consideration of Rs.16,20,000/-. The said sale deed was challenged by one of the daughters of the complainant, namely, Saroj, and when the said suit was dismissed for non-payment of court fees, then the aforesaid complaint was made by the complainant. It was further found by the trial Court that in order to pressurize the accused Ramesh to return the land purchased by him from the husband of the complainant vide registered sale deed 6.1.2005, the criminal case was got registered by the complainant at the instance of her son-in-law Ram Kumar, who was pursing the Civil Suit filed by Saroj, another daughter of the complainant. It was further found by the trial Court that the prosecutrix and accused Ramesh are the first cousins. It has come in evidence that accused Ramesh was residing as a son with the complainant during the life time of her husband and he helped her in the marriage of her elder daughter much prior to the date of occurrence. There is a major contradiction in the statement given by Kamla Devi (complainant) to S.P., Panipat, on the basis of which the formal FIR was registered, and the statement made by the prosecutrix in the Court. In the complaint, there was no allegation of rape or sexual assault against accused persons, whereas the prosecutrix while appearing in the witness box, deposed in her cross-examination that she was released by the accused on 11.11.2006 at about 2/2.30 PM and during that period she was repeatedly raped. When she went to her house she found that her mother and sister Bhateri were present there, then she narrated the incident to them that accused persons had kidnapped her and committed bad act with her. She was medico-legally examined on 11.11.2006 in the evening, but the complainant did not mention the factum of rape in the Crl.Misc. No.A. 713-MA of 2009 (O&M) -5- complaint in spite of the fact that the said version was narrated to her by her daughter. Further, it was found that when PW6-Krishna Devi appeared in the Court, she stated that her daughter had returned on the same evening, i.e., 8.11.2006, but as per the version of the prosecutrix, she remained in the custody of the accused from 8.11.2006 to 11.11.2006. In her cross- examination, she has admitted that when her daughter was taken away by the accused, she did not stop them from doing so. She did not make any noise or lodged any complaint to the police. One other major contradiction was noticed by the trial Court. As per the version of the complainant, the prosecutrix was taken away by the accused in her presence and she did not stop them from taking her away, whereas, as per the prosecutrix version, she was abducted from her house when she was alone in the house. It was found that this major contradiction in their statements belies their testimony. The trial Court has also appreciated the prosecutrix evidence vis-a-vis medical evidence and came to the conclusion that the medical opinion is not corroborating with the version given by the prosecutrix and the complainant. In her statement, the prosecutrix stated that when the bad act was committed by the accused with her, she had bleeding, but PW2-Dr. Rekha Verma did not find that the prosecutrix had bleeding due to sexual assault. She also did not find any mark of injury on her person. As per the opinion of the said doctor, if the prosecutrix had been sexually assaulted in the manner as alleged by her before the court, keeping in view her tender age, some injuries on her private part and other parts of her body might have been present. According to the doctor, it was highly improbable that a girl of tender age of 12 years would not suffer any injury even after she was subjected to sexual assault by Crl.Misc. No.A. 713-MA of 2009 (O&M) -6- three persons one after the other for a continuous period of three days. The doctor has not given the definite opinion as to whether sexual intercourse had definitely taken place and due to that reason she had used word `possibility' in her opinion made to the police. After appreciating the medical evidence, the trial Court came to the conclusion that the medical evidence falsified the case of the prosecution. It has also been found that there is no evidence on the record that the semen found on the slides and swabs taken by the doctor at the time of medical examination of the prosecutrix was traced out to any of the accused. This fact also creates a doubt on the prosecution case. After considering all these factors, the trial Court has come to the conclusion that in the instant case the trial Court has failed to establish the guilt against the accused beyond shadow of doubt. We do not find any illegality or perversity in the said conclusion arrived at by the trial Court. After going through the judgment, we are of the opinion that the view taken by the trial Court was the only possible view, which should have been taken in light of the evidence led by the prosecution. Learned counsel for the applicant could not make out a case for grant of leave to appeal against the impugned judgment. In view of the above, we do not find any ground to grant leave to appeal against the judgment dated 23.5.2009 passed by the Additional Sessions Judge, Panipat. Hence, the application is dismissed. (SATISH KUMAR MITTAL) JUDGE March 04, 2010 ( JORA SINGH ) JUDGE