High Court of Punjab and HaryanaCRA-AD/338/2023dismissed

P v. State Of Haryana And Another

2024-11-12Mr. Justice Sudhir Singh,Mr. Justice Jasjit Singh Bedi29 pages

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Present:

Mr. Navjot Singh, Advocate for the appellant as Legal Aid Counsel.

Mr. Ravish Kaushik, Addl. AG, Haryana.

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6 ) The present appeal has been filed against the judgment of acquittal dated 27.03.2023 passed by the Additional Sessions Judge (Special Court), Kaithal.

The FIR was registered on 08.01.2019, the judgment of acquittal passed by the Addl. Session Judge (Special Court), Kaithal is dated 27.03.2023, the appeal was filed on 24.06.2023 and the matter is being taken up for hearing now after 05 years of the registration of the FIR. 3.

The case of the prosecution as unfolded by complainant 'P' (prosecutrix), a resident of village 'XXXXX', District Kaithal (name/Identity withheld for the purpose of secrecy), in her application/complaint dated 31.12.2018 (Ex.P?4) is as under:?

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On the basis of the aforesaid application Ex.P?4, formal F.I.R. Ex.P?21 bearing No.05 dated 08.01.2019 was registered at Police Station Women, District Kaithal. The matter was investigated by L/Sub?Inspector Birmati. During investigation, site plan of the place of occurrence was prepared. The statements of the witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973. Statement of prosecutrix?victim was recorded under Section 164 of Cr.P.C. Accused?Neeraj alias Sonu Sharma

was arrested and after completion of the investigation, accused Neeraj alias Sonu Sharma was challaned in due course to face trial. 5.

On finding a prima?facie case, punishable under Section 376 (2) (n) of the Indian Penal Code, 1860 against accused?Neeraj alias Sonu Sharma, he was charge?sheeted thereunder, vide order dated 23.01.2020 passed by the Court, to which he pleaded not guilty and claimed trial. 6.

To substantiate its case, the prosecution examined fourteen witnesses, on record.

LIST OF PROSECUTION WITNESSES RANK NAME NATURE OF EVIDENCE PW1 Dr. Briti Garg, Medical Officer Medical evidence PW2 'K'?mother of prosecutrix Relative witness PW3 'P'

Complainant?prosecutrix PW4 Dr. Dipesh Goyal, Medical Officer, Medical witness PHC Neonola, District Ambala PW5 Lady Constable Suman Rani Police witness PW6 L/Head Constable Mukesh Chopra Police witness PW7 L/Head Constable Renu Police witness PW8 Head Constable Usha Rani Police witness PW9 E/Head Constable Usha Rani Police witness PW10 Assistant?Sub?Inspector Kuldeep Police witness Kaur PW11 Assistant?Sub?Inspector Surender Police witness

Kumar PW12 Sub?Inspector Rekha Rani Police witness PW13 Inspector Darshna Devi Police witness PW14 Assistant Sub?Inspector Sunita Police witness Thereafter, the prosecution evidence was closed by the Public Prosecutor for the State.

The prosecution also relied upon the following statements:?

Sr.

Exhibit Number Description No.

Exhibit P?1/PW1 Affidavit of Dr. Briti Garg, Medical Officer PHC, Pundri Exhibit P?2/PW1 Carbon copy of MLR bearing No.BG/179/18 dated 09.01.2019 of complainant?prosecutrix?P Exhibit P?3/PW1 Computerized copy of MLR bearing No.BG/179/18 dated 09.01.2019 of complainant?prosecutrix?P Exhibit P?3/PW2 Memo regarding handing over the custody of prosecutrix?P to her mother Exhibit P?4/PW3 Application/complaint dated 31.12.2018 moved by complainant to SHO, Police Station Women, District Kaithal.

Exhibit P?5/PW3 Rough site plan of place of occurrence Exhibit P?6/PW3 Memo regarding taking parcels containing clothes etc. of prosecutrix, into police possession after medico?legal examination of prosecutrix Exhibit P?7/PW3 Statement dated 09.01.2019 of prosecutrix recorded under Section 164 of the Code of Criminal Procedure, 1973 Exhibit P?8 (tendered in statement dated 18.10.2022 of learned state counsel) FSL report bearing Report/Opinion FSL (H) No.19/B?571 dated 29.01.2019 Exhibit P?9 (tendered in statement dated 18.10.2022 of learned state counsel) DNA report bearing Report No.FSL(H)19/DNA?3695, DNA?501/19 dated 17.07.2019 Exhibit P?10/PW4 Affidavit of Dr. Dipesh Goyal, PHC Neonola Exhibit P?11/PW4 Application dated 05.06.

2019 moved to Medical Officer, Government Hospital, Kaithal by police, for conducting medico?legal examination of accused Neeraj alias Sonu Sharma Exhibit P?12/PW4 Carbon copy of MLR bearing No.DG/70/19 dated 05.06.2019 of accused Neeraj alias Sonu Sharma Exhibit P?

Exhibit P?14/PW7 Affidavit of L/HC Renu Exhibit P?15/PW8 Affidavit of L/HC Usha Rani Exhibit P?16/PW9 Affidavit of L/EHC Usha Rani Exhibit P?17/PW10 Arrest form Exhibit P?18/PW10 Disclosure statement dated 05.06.2019 of accused Neeraj alias Sonu Sharma Exhibit P?19/PW10 Memo regarding taking parcels containing clothes, pubic hair, blood sample, penile swab etc. of accused, into police possession, after his medico?legal examination.

Exhibit P?20/PW10 Demarcation memo prepared at the instance of accused Neeraj alias Sonu Sharma.

Exhibit P?21/PW13 First Information Report bearing No.005 dated 08.01.2019 Exhibit P?22/PW13 Endorsement underneath application/ complaint.

Exhibit P?23/PW13 Application dated 09.01.2019 moved before Medical Officer, Government Hospital, Kaithal for conducting medico?legal examination of prosecutrix Exhibit P?24/PW13 Application dated 09.01.2019, moved before learned Magistrate, Kaithal for regarding statement of prosecutrix under Section 164

Cr.P.C.

Exhibit P?25/PW13 Scaled site plan of place of occurrence LIST OF MATERIAL OBJECTS Sr. Material Object Number Description Exhibit MO/1/PW1 Lady shirt of prosecutrix Exhibit MO/2/PW1 Salwar of prosecutrix Exhibit MO/3/PW4 Underwear of accused Exhibit MO/4/PW4 Lower of accused Exhibit MO/5/PW4 T?shirt of accused Exhibit MO/6/PW4 Baniyan of accused Exhibit MO/7/PW4 Swab of accused Exhibit MO/8/PW4 Pubic hair of accused 8.

Accused Neeraj alias Sonu Sharma was examined on 04.03.2023 under Section 313 of the Code of Criminal Procedure, 1973 and the entire incriminating evidence was put to him.

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In defence, one witness namely Constable Sohan was examined, on record.

LIST OF DEFENCE WITNESS RANK NAME NATURE OF EVIDENCE DW1 Constable Sohan Police Witness The defence also relied upon the following documents:? LIST OF DEFENCE EXHIBITS:

Sr.

Exhibit Number Description No.

Exhibit D1/DW1 First Information Report bearing No.534 dated 02.12.2017, registered at Police Station City, Kaithal Exhibit D2/DW2 First Information Report bearing No.529 dated 29.11.2017, registered at Police Station City,

Kaithal Exhibit D3/DW1 First Information Report bearing No.178 dated 29.03.2018, registered at Police Station City, Kaithal Exhibit D4/DW1 Certified copy of Judgment dated 20.09.2019, passed in FIR No.534 dated 02.12.2017 by Shri Hukam Singh, the then learned Additional Sessions Judge, Kaithal Thereafter, the defence evidence was closed by accused?Neeraj alias Sonu Sharma by making a separate statement in this regard on 20.03.2023.

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The evidence of some relevant prosecution witnesses is as under:?

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The remaining prosecution witnesses testified as to the different aspects of the investigation.

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The evidence of the defence is as under:?

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12.

Based on the evidence led, accused/respondent No.1 was acquitted by the Court of Additional Sessions Judge (Special Court), Kaithal vide judgment dated 27.03.2023.

13.

It is the aforementioned judgment of acquittal which is under challenge in the present appeal.

14.

The learned counsel for the appellant/complainant contends that the judgment of acquittal is based on conjectures and surmises. The medical evidence was totally in consonance with the ocular account. Minor discrepancies and contradictions in the deposition of the prosecution witnesses had given undue weightage. In fact, the prosecution witnesses had supported the case of the prosecution in material particulars. He, therefore, contends that the judgment of acquittal of accused/respondent no.1 be set

aside and the accused be convicted of the offence for which he has been charge?sheeted.

15.

The learned counsel for the State while supporting the case of the appellant/complainant contends that the impugned judgment was not based on proper appreciation of the evidence on record and, therefore, judgment of acquittal was liable to be set aside.

16.

We have heard the learned counsel for the parties and gone through the record.

17.

On the basis of application/complaint dated 08.01.2019 Ex.P? 4, the aforesaid FIR Ex.P21 bearing No.05 dated 08.01.2019 was registered against accused Neeraj alias Sonu Sharma and his father namely Jaipal, for the commission of offences punishable under Sections 313, 376, 452 of the Indian Penal Code, 1860, at Police Station Women, District Kaithal. During investigation, Jaipal named as an accused was found innocent by the investigating agency and after completion of investigation proceedings, final report under Section 173 of Cr.P.C. was submitted under Section 376 of the Indian Penal Code, 1860, only, against accused Neeraj alias Sonu Sharma.

18.

Coming to the deposition dated 18.10.2022 of PW3, it is to be noted here that the prosecutrix namely 'P' testified that on 29th July 2017 accused Neeraj alias Sonu Sharma committed rape on her under the pretext of marriage, in her house, situated at xxxx, Kaithal and in the month of December 2017, she conceived and he got her pregnancy terminated by giving hot pills to her. He used to commit rape upon her, under the pretext of

marriage and in February 2018, her engagement was fixed with accused Neeraj alias Sonu Sharma and father of accused Sonu had come to their house with a proposal of her marriage with Sonu and her mother had given 6 tola gold ornaments and approximately 1 Kg. Silver ornaments to the accused at the time of engagement. However, the accused had performed marriage with someone else. After registration of the FIR, accused Neeraj alias Sonu Sharma had extended a threat to her to compromise the matter and an FIR under Section 506 of the Indian Penal Code, 1860 had been registered against him at Police Station City, Kaithal. The answers given by her at the time of her cross?examination held at the instance of defence are as under:? " "

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Further, 'K' is the mother of the complainant?who was examined as PW2. As per her, firstly accused Neeraj alias Sonu visited her house on 29.07.2017 and made forcible physical relations with her daughter by administering intoxicating pills to her and her daughter and thereafter, he continuously raped her and she conceived and had a 2 1⁄2 months pregnancy, which was also got terminated, against her wishes by giving tablets. In the month of February 2018, he got engaged with her daughter and she had given six tola gold, 1 Kg. Silver ornaments, one karra of Silver and suits to accused Neeraj alias Sonu Sharma in the presence of his father. Later on, they came to know that despite having physical relations with her daughter against her will and alluring her for marriage, he got married with another girl. Thereafter, they got registered the present case in the year 2019. The counselling & medico?legal examination of her daughter was conducted. She had given slips of the maternity Hospital to the police and her statement was also recorded by the police in this regard.

Her cross?examination held at the instance of defence is as under:?

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In a case involving a charge of rape, the evidence of the prosecutrix is most vital. If it is found credible and if it inspires total confidence, it can be relied upon even without corroboration. The Court may, however, if it is hesitant to place implicit reliance on it, look into other corroborating evidence to lend assurance to it. However, where the evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, the prosecutrix is found making deliberate improvements on material aspects and there are no injuries on her person, no reliance can be placed upon her evidence. While rape causes the greatest distress and humiliation to the victim but at the same time, a false accusation of rape can cause equal humiliation and damage to the accused. Therefore, an accused must also be protected against the possibility of false implication. 21.

From the deposition(s) of material witnesses (prosecutrix and her mother), as detailed above, quite apparently it is not a case, where the prosecutrix?PW3 had been forcibly taken away from the custody of her lawful guardians and raped at some unknown place. She was at her home and residing along with her mother PW2. Accused Neeraj alias Sonu Sharma was

known to her. He was a visitor to their house, being a relative. Therefore, it is improbable that on 29.07.2017, he entered the house and gave intoxicating pills to the mother and prosecutrix and raped the complainant?prosecutrix? PW3, who was in an unconscious state. No specific date, time and year of the alleged sexual assault had been disclosed either in complaint Ex.P4 or in her first statement dated 09.01.2019 Ex.P7, made under Section 164 of The Code of Criminal Procedure, 1973. However, the date of the first sexual intercourse as 29.07.2017 had been given before the Medical Officer, Government Hospital, Kaithal. Strangely enough, an FIR bearing No.534/2017 Ex.D1, was registered against one Kuldeep son of Ishwar Chand on 02.12.2017, at Police Station City, Kaithal, on the basis of a complaint made by the present complainant?PW3, in which, she alleged that since 5/6 months, he (Kuldeep) had raped her 14?15 times and had also outraged her modesty. The contents of the FIR Ex.D1 are as under:?

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22.

From a perusal of the FIR, it can be safely inferred that at the same time i.e. on 29.07.2017 and from the period July 2017 to June 2018 (last date of assault as disclosed in the MLR), the complainant was also in touch with Kuldeep son Ishwar Singh, who has now been acquitted, in case FIR No. 534 dated 02.12.2017 (Ex.D1) at Police Station City, Kaithal lodged by the complainant, vide judgment dated 20.03.2019 Ex.D4 passed by the Court of the Additional Sessions Judge, Kaithal.

In her testimony, in the present case as PW3, she in her cross? examination replied that she had got lodged a criminal case against Kuldeep son of Ishwar Chand, resident of village Songri on 02.12.2017 at Police Station City, Kaithal. However, Kuldeep had not made any physical relations with her at any point of time. She, however alleged in FIR No. 534 dated 02.12.2017 that Kuldeep had raped her 14/15 times in the last six months.

Therefore, quite apparently, the prosecutrix has given conflicting versions regarding her allegations against Kuldeep as well. 23.

, the Supreme Court commented about the quality of the sole testimony of the prosecutrix which could be made a basis to convict the accused. It held as under:?

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In the instant case, the version of the prosecution as well as the conduct of the victim?prosecutrix, is highly doubtful. First of all, neither in the complaint Ex.P4 nor in her first version dated 09.01.2019 Ex.P7 recorded under Section 164 of the Code of Criminal Procedure, 1973, by the Judicial Magistrate First Class, Kaithal, she disclosed that she was raped by accused Neeraj alias Sonu Sharma on 29.07.2017, who got her as well as her mother intoxicated by administering pills and made forced physical relations with her at their house. It was for the first time, at the time of her medical examination on 09.01.2019, she disclosed the history of multiple sexual intercourse from 29.07.2017 and the last episode being on 12.06.2018. In Ex.P7, she narrated that after settlement of the Rishta in the year 2018, the accused developed physical relations with her and she conceived and had a three month pregnancy which was got terminated by the accused by giving a medicine. It is against the deposition of the victim as PW3, before the Court, where, she

stated about the first forced sexual relation in the year 2017, regarding which neither she nor her mother had complained anywhere. The mother?PW2 knowing that she was also administered tablets and her daughter had been ravished on 29.07.2017 did not make a complaint to anyone either in the family of the accused or to the police. There is no cogent medical evidence either of the prosecutrix being pregnant because of the alleged act of the accused or its termination.

25.

PW10 Assistant Sub?Inspector Kuldeep Kaur in her cross? examination, stated that she had verified the allegations of miscarriage from the Maternity Home near Hind Cinema, Kaithal but no clinching evidence regarding the miscarriage was found from the concerned Maternity Home. Therefore, Section 313 of IPC was not added in the present case. On the one side hand, the prosecutrix claimed in Ex.P4 (complaint) that in February 2018, her Rishta was fixed and under that pretext, he raped her, whereas, in her evidence, she deposed that she was raped in the year 2017, in her house and had pregnancy in December 2017. However, from 29.07.2017, till February 2018 (alleged month of settlement of her rishta), no complaint of rape was given by her against the accused. 26.

There is no evidence that both (complainant and accused) had ever been engaged in February 2018. No photograph or videography of the engagement ceremony is on record. Not a single person of the family had witnessed the engagement ceremony of the accused and the complainant? prosecutrix.

Concededly, PW?10 Assistant Sub?Inspector Kuldeep Kaur neither joined the younger brother of the prosecutrix nor any neighbour in her investigation at the time of her visit, in order to verify the alleged fixation of the rishta or performing of any engagement ceremony of the prosecutrix and accused Neeraj alias Sonu Sharma, in the present case. 27.

Admittedly, the prosecutrix knew accused Neeraj alias Sonu Sharma since they were closely related. He visited the house on 29.07.2017 and he had been continuously visiting her house till the registration of the present case. Apparently, the prosecutrix and accused knew each other since long. The first occurrence took place on 29.07.2017, in the house of the complainant and this date has not been given in her complaint?application Ex.P4. The prosecutrix did not state therein that the accused had sex with her against her wishes, while she was in an intoxicated or unconscious state and that he had given pills to her and her mother, in consonance with the testimony of her mother. The mother did not explain, where she was on 29.07.

2017 and how and in what manner did the accused enter their house and give intoxicating pills to her and her daughter and why she did not tell anyone or lodge a complaint against him and when her daughter disclosed to her about the alleged act of the accused. She did not state as to what action she had taken and why she allowed him to enter her house later on, to meet her daughter without any acknowledged relationship. She did not disclose where she had got her daughter medically examined or the name of the doctor, who gave her treatment.

accused in the month of February, 2018 and that too only in the presence of his father Jaipal Sharma. None of her family members had witnessed this ceremony. She clearly stated that she did not invite any relatives, friends or persons from the neighbourhood at the time of the engagement. Photographs of the engagement ceremony were stated to be in the mobile phone of her daughter which was dismantled by the accused. However, there is no proof in this regard. Concededly, when the accused had performed marriage, only then, they got lodged the present FIR against him. 28.

The mother admitted that on 28.11.2017, after four months of the alleged occurrence dated 29.07.2017, one Kuldeep son of Ishwar Chand, a resident of village Songri had got lodged a criminal case bearing FIR No.529/2017 Ex. D2 dated 29.11.2017, at Police Station City, Kaithal against them (her & her daughter) and on 02.12.2017, her daughter 'P' (present complainant) had also got lodged a criminal case bearing FIR No.534/2017 Ex.D1 against Kuldeep, at Police Station City, District Kaithal. 29.

From the contents of that FIR, as detailed above, it can be safely inferred that after July 2017, there were talks of solemnization of marriage between Kuldeep and her daughter?prosecutrix and case FIR No.534/2017 was lodged against Kuldeep under Sections 354, 376, 506, 511 read with Section 34 of the Indian Penal Code, 1860, on 21.12.2017, by her daughter at Police Station City, District Kaithal, in which, he was acquitted vide judgment Ex.D4. Meanwhile, the first incident of sexual assault took place on 29.07.2017.

Admittedly, neither the complainant nor her mother lodged any complaint regarding the incident dated 29.07.2017. As per the cross? examination of the mother?PW2, the incident came into their knowledge after a gap of two months. However, in her examination she stated that after administering pills to her and her daughter, the accused made forcibly relations with her daughter. If the version of PW2 is correct, it means that the daughter never complained to her for such a long period that any forced sexual relations had been maintained by the accused, in her absence in their house. Why she had not disclosed the incident of rape to anyone in the family or the police and kept mum, nervous unexplained.

If the version of PW2 given in her examination in chief, is correct that the accused had raped her daughter by administering pills to her and her daughter, even then, she failed to explain that being a mother, why she had not taken any action against the accused or why she did not disclose about it, to the police. 30.

At one stage, the mother?PW2 stated that six tolas gold, one Kg. Silver ornaments, one kara of Silver and suits were given to accused Neeraj in engagement while in the next breath, in cross?examination she stated that accused Sonu had stolen their ornaments of gold, two buffaloes, sale deed of her house, cash amount of Rs.90,000/? as well as academic certificate of her daughter from her house. No complaint was ever lodged by the complainant or her mother that accused Sonu alias Neeraj Sharma had stolen their ornaments of gold, two buffaloes, sale deed of their house, cash amount of Rs.90,000/? as well as academic certificates of her daughter.

31.

In her cross?examination, PW13 Sub? Inspector Darshana Devi stated that during her investigation, it had not emerged that accused Neeraj alias Sonu Sharma had committed any theft of buffaloes, golden ornaments, cash amount and academic testimonials of the prosecutrix from her residential house. The date of the last episode of sexual intercourse between the accused and prosecutrix could not be ascertained in her investigation and she had not collected any evidence with regard to any mobile calls between the prosecutrix and accused.

32.

The cumulative effect of the testimony of the mother negates the story of rape on 29.07.2017 as projected by the prosecution and indicates that the prosecutrix developed relations on her own. It is true that in the FIR Ex.P21 and later on in her statement dated 08.01.2019, Εx.P7, made before the Magistrate, Kaithal, under Section 164 of Cr.P.C. and finally in her deposition as PW3, she has stuck to the story of rape. However, the same is not probable nor proved beyond doubt and at no stage, has she given any credible explanation, either as to the delay of about more than one year in reporting the matter of rape on 29.07.2017 by the accused to her family members or to the police. 33.

As far as the delay in lodging the FIR is concerned, particularly in a case of rape, it is not fatal or even significant in every case. It all depends on the nature and facts of the case. Delay, itself will not weaken the case of the prosecution, when, it is reasonable or where, it is suitably explained. However, in the case in hand, the FIR has evidently been lodged after one year and four months of the alleged incident(s), which is bereft of details. The

testimony of the victim clearly goes to show that for more than one year the accused and the victim used to meet each other. Under such circumstances, it cannot be said that the accused had sex with the victim against her will. 34.

The evidence which has been produced during the course of trial clearly goes to show that the victim, who is an adult and matured lady of 23 years at the time of the incident gave her consent freely and it is nothing but free consensual sex and there is no clear and reliable evidence to show that the accused on a false promise, induced the victim and had sex with her. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. She did not resist the overtures of the accused, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. The version of the prosecution case as narrated by victim suffers from lack of credibility. All the above discussed materials, when taken into consideration would show that it was a case of a consensual sex and not rape, as contemplated under Section 375 of the Indian Penal Code, 1860. 35.

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36.

As to how an appeal against a judgment of acquittal is to be dealt with, the Hon'ble Supreme Court in $ %&'() %*+(#

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37.

In view of the aforementioned discussion and keeping in view the law laid down in $ %&'(. Case (supra), we find no reason to interfere with the well reasoned judgment of acquittal passed by the Court of Additional Sessions Judge (Special Court) Kaithal. Therefore, the appeal stands dismissed.

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