CRA No.535-SB of 2002 v. State of Haryana

Judgment

1. The present appeal has been directed against the judgment dated

5.3.2002 passed by learned Additional Sessions Judge, Sonepat (hereinafter

as 'trial Court'), whereby the appellant has been convicted for the offence punishable under Section 452/366 of the IPC and the order dated 13.3.2002 vide which the appellant has been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1000/- under Section 366 of IPC and rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- under Section 452 of IPC. In default of payment of fine, he was to further undergo rigorous imprisonment for a period of six months. However, both the sentences were ordered to run concurrently.

2. The facts of the present case are found narrated in para 2 of the judgment of the learned trial Court, which reads as under:- CRA No.535-SB of 2002 -2- "2. Briefly, stated facts of the present prosecution case as alleged are that on 19.9.1999 while Ram Kumar, along with other police party was present at Khubru Bus Stand Ganaur, then PW Pinki met him and got recorded her statement to the effect that she has passed 5th Class and they are five brothers and sisters namely Vijay Kumar, Ajay Kumar, Jyoti and Kiran. In the intervening night of

17.9.1999/18.9.1999 at about 1.30 AM she was sleeping in the room of her residential house along, then three persons namely Chand Ram, Kuldeep and Dilbagh entered in her room. Chand Ram gagged her mouth with the clothes and caught her hands, and also pressed her neck. Dilbagh caught her feet and brought her in the courtyard of the house. She was forced to lie on the wall. Chand Ram and Dilbagh crossed the wall towards the open plot while Kuldeep was trying to shift her in the hands of Chand Ram and Dilbagh. But she was slipped from the hands of the accused and fall in the open plot. ¾ bricks had also falled. So, she cried for help. Then her brother Ajay Kumar as well as her father, Tara Chand, came to the spot after hearing her cries. But all the three accused persons ran away from the spot on seeing her father and brother. The accused came there to outrage her modesty. The accused were pressurising them to compromise but the matter could not be settled. She was going to Police Station, alone with her father, on scooter but the police party met them at Khubru Bus Stand Ganaur." CRA No.535-SB of 2002 -3-

3. The accused were arrested and after completion of the investigation, the accused was sent to face trial under Section 376/452/511 read with Section 34 of IPC.

4. The accused were charge-sheeted under Section 452 IPC read with Section 34 IPC and 376(2)(g) IPC, to which they pleaded not guilty and claimed trial.

5. In order to substantiate its case, the prosecution examined as many as 13 witnesses, namely, Dr. (Ms.) P L Bansal, Medical Officer, PHC, Ganaur, as PW1; Dr. Shailender Khambra, Medical Officer, PHC, Ganaur, as PW2; Constable Inderpal as PW3; Mohinder Singh, Teacher, as PW4; Mohinder Singh as PW5; Tara Chand, father of the prosecutrix, as PW6; Pinki, prosecutrix, as PW7; Ram Mehar as PW8; DSP Abhey Singh as PW9; SI R K Yadav as PW10; ASI Daya Nand as PW11; Mrs. Poonam Suneja, learned JMIC, Bahadurgarh, as PW12; and Constable Rajinder Singh as PW13.

6. The accused were examined under Section 313 Cr.P.C. in which they pleaded to be innocent and examined Satbir as DW1 in defence.

7. The learned trial Court, after hearing learned counsel for both the parties and analysing the evidence available on record, convicted the present accused for the offence and term as indicated at the outset of this judgment.

8. The remaining accused, namely, Dilbagh, Kuldeep and Smt. Kamlesh, were acquitted by giving them benefit of doubt.

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

10. Learned counsel for the appellant has argued that there is CRA No.535-SB of 2002 -4- inordinate and unexplained delay lodging the FIR because the version of the prosecutrix and her parents did not see the light of the day for about 8 months.

11. Learned counsel has further argued that the allegations in the present case are that the prosecutrix was kidnapped by the appellant and other co-accused, who stand acquitted by the learned trial Court on the same set of facts and circumstances by disbelieving the version given by the prosecutrix. The present appellant is also similarly situated and as such the prosecution version, as narrated by the prosecutrix, is liable to be disbelieved against the present appellant as well.

12. Learned counsel has further argued that the prosecutrix is inimical against the appellant because she has filed two more FIRs against the present appellant on the allegation of committing rape upon the prosecutrix by the present appellant by fabricating false version. The prosecutrix has also named more persons in those FIRs also and the learned trial Court has acquitted all of them in those cases. In this situation, the main object of the prosecutrix is to falsely implicate the appellant.

13. 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, PW4, 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. The learned counsel has further argued that in the absence of Birth Entry, the school leaving certificate produced by Mohinder Singh, PW4, does not carry any weight CRA No.535-SB of 2002 -5- 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.

14. Although, there is no allegation of rape in the present case and no injury mark on the person of the prosecutrix, as such the story put forth by the prosecutrix regarding her abduction and forcing her to lie on the wall does not find any truthfulness because of the fact that no external mark of injury was noticed during her medical examination.

15. On the other hand, learned counsel for the State has submitted that the case of the prosecution stands fully proved and the judgment and order passed by the learned trial Court does not warrant any interference.

16. I have heard learned counsel for the parties and perused the record.

17. Undoubtedly, as per the medical evidence on record, there is no external injury mark on the person of the prosecutrix despite the fact that according to her, she was forced to lie on the wall made of bricks and 2-3 bricks of the said wall had fallen in the process, which indicates that the wall on which the prosecutrix was forced to lie was a hard surface.

18. The story of the prosecutrix does not inspire confidence due to the reason that according to her, present appellant with Kuldip and Dilbagh, entered the room where she was lying in her house and her mouth was gagged by the appellant with cloth and her hands were caught by him and neck was also pressed. She further stated that Dilbagh caught her foot and brought her in the courtyard of the house and she was forced to lie on the wall. Chand Ram and Dilbagh crossed the wall while Kuldip was trying to shift her with the help of other two but she slipped from the hands of the CRA No.535-SB of 2002 -6- accused and fell in the open plot. 3-4 bricks had also fallen. So if the hands of the prosecutrix were caught by appellant-Chand Ram then how he could press her neck. When she got slipped from the hands of the accused and fell in the open plot and the bricks had also fallen. As such, the version rendered by the prosecutrix is highly improbable. As per the MLR, no injury on the person of the prosecutrix was noticed. From the details of the occurrence, as narrated by the prosecutrix, in all probability, the prosecutrix was likely to suffer some injury on her person.

19. The prosecutrix has made material improvements in her earlier version while appearing before the learned trial Court. All these facts, on being examined conjointly, go to show that the prosecution version is not truthful.

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

30.07.2010 atulsethi ( JITENDRA CHAUHAN ) JUDGE