High Court of Punjab and HaryanaCRM-A/216/2022dismissed

Bala Devi v. State Of Haryana And Another

2025-04-29Mr. Justice Anupinder Singh Grewal,Mr. Justice Deepak Manchanda14 pages

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.'+,/ This appeal has been filed by the complainant (who is the sister of the prosecutrix 'J'), against the judgment of the trial Court dated 16.09.2021 whereby respondent No.2 has been acquitted under Sections 363, 366-A IPC (Section 366-A IPC deleted and Sections 366, 506 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 added later on) in FIR No.435 dated 21.08.2020, registered at Police Station Sadar Thanesar. 2.

Learned counsel for the appellant submits that the prosecution had been able to make out a case against respondent No.2 beyond reasonable doubt and he ought to have been convicted. The victim, who was 16 years of age as per the date of birth recorded in the school register as well as in the Aadhar Card, had been enticed away by the respondent no.2 on the false pretext of marriage. Thereafter, he took her to various places and assaulted her.

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& $2/3 +- It is true that the date of birth of the victim as recorded in the school was '11.05.2004', but the officials of the two schools, who were examined as PW-8 and PW-11 respectively, had stated in their crossexamination, that the entry with regard to her date of birth at the time of her admission in the school, had been made only on the basis of the verbal instructions of the mother of the victim 'S'. No birth certificate or affidavit had been furnished at the time of her admission in the school and, therefore, a copy of the same was not available with the school in its records. /0 ,- )$- -7

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& 2 / The factum of death of the father of the victim on 04.09.2000 has been duly established from the Death Certificate produced by DW-2 Ravi Pal, the testimonies of other witnesses, including DW1 (resident of village Jhanjhari), as well as

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Therefore, we are in agreement with the findings of the trial Court that the prosecutrix was not a minor at the time of the incident and the provisions of the POCSO Act, 2012 are not attracted in the case at hand. 22.

Let us now examine whether the testimony of the prosecutrix inspires confidence, so as to warrant the conviction of respondent no.2 under Sections 363, 366, 366-A, 506 IPC. .

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23.

The Supreme Court in Rai Sandeep vs. State (NCT of Delhi) (2012) 8 SCC 21 had the occasion to define as to who can be said to be a 'sterling witness'. The relevant extract of the judgment is reproduced hereunder:

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24.

Analysis of the testimony of the victim in the light of these principles laid down by the Supreme Court makes it crystal clear that her testimony suffers from material inconsistencies. The victim in her statement recorded under Section 164 Cr.P.C. (Ex.P3), had categorically stated that on 20.08.2020, she had left her home 'to roam around with respondent No.2', and she did so, of her own accord and free will. She had further stated that they had stayed in a dharmashala at Naraingarh, then in a room at Ambala and she did not want any action in the matter. However, her - /3/ 7!7 ( In her examination-in-chief, she stated that the respondent No.2 had threatened her and out of pressure and fear, she

had given a statement in favour of the accused before the magistrate. She then contradicts herself, and states that she gave the statement in favour of the accused due to police pressure.

25.

In her cross-examination, she further admitted that she and the accused had been in touch via mobile phone for some time and he had called her around 1:00 am on the alleged date of occurrence. She had accompanied respondent No.2 out of her own free will to solemnise their marriage. In Ambala, they had stayed under a bridge near the railway station for about ten days and the area was bustling with passersby. She also deposed that when she was produced before the police, she opted to stay in the Bal Ashram and did not want to stay with her sister and after two days she never met any police official which suggests that the rough sketches of site plans were made in her absence.

26.

Furthermore, the victim had refused to give her consent for the medical examination when she was produced before the doctor, which is reflected in the report of Dr. Himanshi (Ex.P4). She had further recorded in her report that the patient had come with 'the alleged history of running away on her own accord and with her consent'.

27.

It is also significant to note that there are material discrepancies in the testimony of the complainant as well. In her examination-in-chief, the complainant, in addition to other facts, had stated that respondent No.2 raped the victim in an open plot and also took her to Barara, whereas the victim had not stated anything about such plot and the place called Barara. Otherwise also, it is an admitted fact that the complainant is a 'hearsay' witness as she has

stated whatever was allegedly told to her by the victim and the hearsay version of this witness ought not to be believed.

28.

It is, thus, manifest that the judgement of acquittal dated 16.09.2021, is based upon proper appreciation of the evidence on record. The prosecution evidence is doubtful and the acquittal of respondent No.2 is justified.

29.

by an order of acquittal, the presumption of innocence of the accused is reinforced. Interference would be called for only when there is manifest illegality or perversity in the judgment resulting in a miscarriage of justice. Even if another view is possible while appreciating the evidence, the Appellate Court should refrain from interference in a judgment of acquittal. Reference can be made to the judgment of the Supreme Court in the case of Chandrappa and others vs. State of Karnataka (2007) 4 SCC 415. The relevant extract thereof is reproduced hereunder:- "42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;

(1) to (3) xxxxxxxxx

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

0 30.

In view of the above, we do not find any manifest illegality or perversity in the judgement of the Special Court acquitting the respondent No.2.

31.

Consequently, the appeal stands dismissed.

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