Case: RAJESH Vs. STATE OF HARYANA

1. The Appellant herein was charged for the commission of offence Under Sections 363, 366, 376 and 306 of the I.P.C. in FIR 236 dated 6.11.2004 which was registered at Police Station Agroha, Hisar (Haryana). He was tried for the aforesaid offence and convicted by the Additional Sessions Judge, Hisar, vide his judgment dated 4.9.2009. It was followed by the order of sentence dated 5.9.2009. Insofar as offence Under Section 363 I.P.C. is concerned, the Appellant was given sentence of R.I. for three years and fine of Rs. 2000/- and in default of payment of fine, R.I. for another one month. In respect of offence Under Section 366 of I.P.C., the Appellant was awarded sentence of five years R.I. and fine of Rs. 5,000/- and in default of payment of fine further R.I. for two months. For commission of offence Under Section 376 I.P.C. R.I. for 10 years with fine of Rs. 5,000/- and in default of payment of fine R.I. for two months was awarded. Likewise for sentence Under Section 306 I.P.C. he was given R.I. for five years and fine of Rs. 5,000/- and in default of payment of fine R.I. for two months was given. All these sentences were to run concurrently. The Appellant challenged the aforesaid conviction and sentence by filing the appeal before the High Court of Punjab & Haryana. By the impugned judgment dated 19.8.2013, the High Court has maintained the conviction and sentence in respect of offences Under Sections 306, 366 and 376 but set aside the conviction recorded Under Section 306 I.P.C. Not satisfied with this outcome, present appeal is preferred, via special leave petition in which leave had been granted. 2. The case set up by the prosecution, in brief, is that: the daughter of Phool Singh (hereinafter referred to as the prosecutrix) was missing from the house and because of this reason Phool Singh lodged a missing report to the Police at 7.00 p.m. on 5.11.2004. He stated the age of prosecutrix is 15-16 years. It was stated by him that after dinner the prosecutrix slept in the house and during night between 1.00 a.m. to 4.00 a.m., she left the house on her own and the gold ornaments and cash were not touched. According to him he had tried to trace her but when he was unable to find, he was lodging the missing report. He further did not suspect any one. It was followed by another statement by the complainant after some time, wherein he stated that the prosecutrix had gone to Nohra to fetch milk at 4.30 a.m. and had not returned and he along with his family members had been searching for her. As they were unable to trace her, missing report was lodged. 3. After recording the said missing report, the police officials along with Krishan Kumar and Dhan Singh, both of them were related to the complainant, went to Hisar in search of the prosecutrix. On the next date at 4.30 p.m. when they were at the bus stand, Krishan Kumar and Dhan Singh saw the prosecutrix. She was in the company of another boy, viz. Om Prakash who was holding her hand and after seeing them the said boy fled away. The prosecutrix was rescued. 4. Her statement was recorded by the police on the same day i.e. 6.11.2004. In this statement, pertinently, she narrated the incident by explaining that when she had gone to Nohra for milching the buffaloes, Om Prakash, who is the neighbour of the prosecutrix, came there and caught hold of her and put his hand on her mouth and threatened that in case she would raise any noise he would kill her. He then took her away to the fields of cotton and enticed her by telling that he would marry her and would keep her in a big city. Thereupon, he committed rape of the prosecutrix against her wishes. She further stated that then Rajender friend of Om Prakash came there on his motor cycle. Om Prakash asked him to stay there saying that he would come back after some time after taking care of his fields. Rajender, by giving threat of defaming the prosecutrix, also raped her. She was kept in the field of cotton for the whole day. In the night at about 11.00 p.m. both Om Prakash and Rajender dropped the prosecutrix to Hisar on motor cycle. Rajender left her and Om Prakash at Railway Station by saying that he would come back after arranging money and asked them to meet him at the bus stand. Whole night Om Prakash and the prosecutrix remained at the Railway Station. During day Om Prakash and Prosecutrix went roaming around in the bazaar and a park. It was further stated by her that at 4.30 p.m. Om Prakash brought her at bus stand, Hisar where Rajender was supposed to meet them. When both of them, namely, prosecutrix and Om Prakash were searching for Rajender, in the mean time Krishan Kumar and Dhan Singh along with police reached there and on seeing the police, Om Prakash left her and ran away. It is also pertinent to mention that in this very statement she had further disclosed that about ten days ago when she had gone to the house of Jagdish to enquire about fast Suresh son of Jagdish met her and told that his mother was inside the house and when she entered the house he locked the room and committed rape of the prosecutrix against her wish. She also stated that Jagdish threatened that if she discloses this to any body, he would kill the prosecutrix. 5. From the aforesaid it is clear that the prosecutrix named three persons. Om Prakash is person who had enticed and taken her away and was joined by Rajender. Both of them allegedly committed her rape. She implicated one Suresh as well, who had allegedly committed rape ten days before recording of the said statement on 6.11.2004. On the basis of the aforesaid statement, a FIR No. 236 dated 6.11.2004 was registered. 6. Though it is not appearing on the record as to what were the circumstances or reasons which prompted the police officials to take the prosecutrix to the Judicial Magistrate for recording her statement Under Section 164 of the Code of Criminal Procedure, fact remains that the prosecutrix was brought before the Judicial Magistrate on 8.11.2004 and her statement was recorded. In this statement she maintained the original plot of story is substantially the same viz. her going to Nohra for milching the buffaloes and how she was taken away from there and ultimately traced at Hisar bus stand at 4.30 p.m. on 6.11.2004. However, in her version of aforesaid events, the main actor of the story got substituted. Instead of Om Prakash, she named Rajesh viz. the Appellant herein. Another material change is that other two villains of original story, namely, Rajender and Suresh are totally omitted and there is no reference to these names at all in the statement recorded before the Judicial Magistrate. 7. On the basis of this statement recorded Under Section 164 Code of Criminal Procedure, the Appellant herein was arrested and put on trial and convicted, as mentioned above. It is also pertinent to mention at this stage that during the trial prosecutrix could not be produced as within ten days of the aforesaid incident i.e. on 15.11.2004, the prosecutrix committed suicide. It was this reason that Section 306 of the I.P.C. was also added and the Appellant was charged of abetment to suicide as well. Since the Appellant is acquitted of the charge Under Section 306 I.P.C., we need not discuss as to what was the reasons which persuaded the trial Court to convict the Appellant for the aforesaid offence. 8. Insofar as charge Under Sections 363, 366 and 376 I.P.C. are concerned, a perusal of the judgment of the trial Court as well as the High Court would demonstrate that the concentration of the Courts below was on the age of the prosecutrix. It was established by credible evidence that she was less than 16 years of age. On that basis the Courts have given the finding that even if the sexual act was consensual, the offence of rape stood established. The Courts below have also, in that view, considered the medical evidence which confirmed commission of the act of rape. We also find from the perusal of the judgment of the High Court that the High Court has gone by the testimony of Krishan (PW 2) who had accompanied Dhan Singh and the police when the prosecutrix was secured from the Hisar bus stand. 9. What we find that the most crucial aspect pertaining to the involvement of the Appellant, which was argued by the defence and was very material to determine the guilt of the Appellant, has not been examined at all and is totally grossed over by the Courts below. The Appellant had pleaded that the prosecutrix in the first instance had implicated Om Prakash and Rajender insofar as the elopement of the prosecutrix is concerned and there were inherent contradictions in the statements of Krishan Kumar and other witnesses. These aspects are not considered and discussed by the Courts below. 10. We find much force in this argument of the learned Counsel for the Appellant who argued at length on the aforesaid lines. 11. In the first instance, it is not understood as to under what circumstances the prosecutrix was taken to the Judicial Magistrate for recording her statement Under Section 164 of the Code of Criminal Procedure when she had given a categorical statement on 6.11.2004, immediately after she was rescued, naming Om Prakash and Rajender. We find that in the second statement given before the Judicial Magistrate which was recorded on 8.11.2004 she has stated that she did not name Rajesh as he had threatened her with the dire consequences. This conduct of the prosecutrix is some what intriguing... as it leaves behind some lurking doubts which had not been clarified or explained. In the first instance it may be pointed out that if there was some threat given by Rajesh, how this threat vanished within two days when nothing had happened in between. Secondly, what was the reason to choose the names of Om Prakash and Rajender in place of Rajesh in the first report. Thirdly, as far as Rajender is concerned, his name is altogether missing in the second statement. Not only this she is conspicuously silent about Suresh. 12. In a matter like this it was most appropriate for the prosecution to have the investigation of the matter from both angles, namely, to see as to whether the real culprits are Om Prakash and Rajender or it is Rajesh. However, strangely as far as Om Prakash and Rajender are concerned, they were dropped from the investigation altogether. 13. We are constrained to remark that when the charge-sheet was filed before the concerned Additional Session Judge, he also did not notice the aforesaid anomalies. Had he been little vigilant, he would have ordered further investigation or summoned Om Prakash and Rajender and implicated them as well. Only then real truth would have surfaced. Insofar as charge of rape against Suresh is concerned, again for strange reasons, it is dropped altogether and not investigated at all. All these factors create serious doubts on the prosecution story. 14. That apart, the learned Counsel for the Appellant has taken us through the depositions of PW. 2 Krishan, PW. 8 ASI Tribhuwan, PW. 11-father of the prosecutrix Phool Singh, PW. 13 Indrawati-mother of the prosecutrix and PW. 17 Roshan Lal. The learned Counsel has pointed out various glaring contradictions in their statements which make the prosecution story unbelievable, even otherwise. 15. When we peruse the statement of PW. 2 Krishan Kumar, which was recorded on 22.5.2006, we find that he mentioned that when he reached bus stop Hisar, he saw the prosecutrix and Appellant Rajesh. However, in his cross-examination he admitted that in his earlier statement given to the police, he had stated that prosecutrix was in the company of Om Prakash and not Rajesh. Apart from this contradiction, another factor which needs to be highlighted is that even if prosecutrix was under some pressure from Rajesh, as far as this witness is concerned, there was no such pressure but in his very first statement to the police he had named Om Prakash and not Rajesh. 16. Likewise PW. 8-ASI Tribhuwan in his statement in the Court named Rajesh who was holding the hand of the prosecutrix and had allegedly fled away after seeing police party alongwith Krishan Kumar and Dhan Singh. However, even he in his cross-examination admitted that when his statement was recorded by the ASI Roshan Lal on 6.11.2004 immediately after the recovery of the girl, he did not mention that the person who was holding the hand of the prosecutrix was Rajesh. He has also stated that the first statement of prosecutrix was recorded in his presence which was marked as Ext. PB. He also admitted that this statement was read over to the prosecutrix and she put her signatures on the same and thereafter it was endorsed by the ASI. Though a Police Officer, the manner in which he answered some of the questions makes it clear that he was not truthful in giving the correct description of the events. He went to the extent of saying that he did not know that prosecutrix had disclosed the name of Rajesh or not. He even stated that he did not remember if ASI Roshan Lal himself scribed the statement Ext. DB or it was got scribed by some other official. When he was shown the statement Ext. DB and the endorsement of the ASI thereupon, he admitted that the said statement was recorded by himself. It is strange that when he had recorded the statement, though as per the directions of ASI (which he stated later), how he could say earlier that he did not know as to who had scribed the said statement. Even his statement is not found worthy of any credence. It would, however, be necessary to mention that at a later stage in his cross examination he admitted that when he reached the bus stand Hisar, along with Krishan Kumar, Krishan Kumar had identified Om Prakash with the prosecutrix.

Decision:
1[ds]8. Insofar as charge Under Sections 363, 366 and 376 I.P.C. are concerned, a perusal of the judgment of the trial Court as well as the High Court would demonstrate that the concentration of the Courts below was on the age of the prosecutrix. It was established by credible evidence that she was less than 16 years of age. On that basis the Courts have given the finding that even if the sexual act was consensual, the offence of rape stood established. The Courts below have also, in that view, considered the medical evidence which confirmed commission of the act of rape. We also find from the perusal of the judgment of the High Court that the High Court has gone by the testimony of Krishan (PW 2) who had accompanied Dhan Singh and the police when the prosecutrix was secured from the Hisar bus stand.9. What we find that the most crucial aspect pertaining to the involvement of the Appellant, which was argued by the defence and was very material to determine the guilt of the Appellant, has not been examined at all and is totally grossed over by the Courts below.10. We find much force in this argument of the learned Counsel for the Appellant who argued at length on the aforesaid lines.11. In the first instance, it is not understood as to under what circumstances the prosecutrix was taken to the Judicial Magistrate for recording her statement Under Section 164 of the Code of Criminal Procedure when she had given a categorical statement on 6.11.2004, immediately after she was rescued, naming Om Prakash and Rajender. We find that in the second statement given before the Judicial Magistrate which was recorded on 8.11.2004 she has stated that she did not name Rajesh as he had threatened her with the dire consequences. This conduct of the prosecutrix is some what intriguing... as it leaves behind some lurking doubts which had not been clarified or explained. In the first instance it may be pointed out that if there was some threat given by Rajesh, how this threat vanished within two days when nothing had happened in between. Secondly, what was the reason to choose the names of Om Prakash and Rajender in place of Rajesh in the first report. Thirdly, as far as Rajender is concerned, his name is altogether missing in the second statement. Not only this she is conspicuously silent about Suresh.12. In a matter like this it was most appropriate for the prosecution to have the investigation of the matter from both angles, namely, to see as to whether the real culprits are Om Prakash and Rajender or it is Rajesh. However, strangely as far as Om Prakash and Rajender are concerned, they were dropped from the investigation altogether.13. We are constrained to remark that when the charge-sheet was filed before the concerned Additional Session Judge, he also did not notice the aforesaid anomalies. Had he been little vigilant, he would have ordered further investigation or summoned Om Prakash and Rajender and implicated them as well. Only then real truth would have surfaced. Insofar as charge of rape against Suresh is concerned, again for strange reasons, it is dropped altogether and not investigated at all. All these factors create serious doubts on the prosecution story.14. That apart, the learned Counsel for the Appellant has taken us through the depositions of PW. 2 Krishan, PW. 8 ASI Tribhuwan, PW. 11-father of the prosecutrix Phool Singh, PW. 13 Indrawati-mother of the prosecutrix and PW. 17 Roshan Lal. The learned Counsel has pointed out various glaring contradictions in their statements which make the prosecution story unbelievable, even otherwise.15. When we peruse the statement of PW. 2 Krishan Kumar, which was recorded on 22.5.2006, we find that he mentioned that when he reached bus stop Hisar, he saw the prosecutrix and Appellant Rajesh. However, in his cross-examination he admitted that in his earlier statement given to the police, he had stated that prosecutrix was in the company of Om Prakash and not Rajesh. Apart from this contradiction, another factor which needs to be highlighted is that even if prosecutrix was under some pressure from Rajesh, as far as this witness is concerned, there was no such pressure but in his very first statement to the police he had named Om Prakash and not Rajesh.16. Likewise PW. 8-ASI Tribhuwan in his statement in the Court named Rajesh who was holding the hand of the prosecutrix and had allegedly fled away after seeing police party alongwith Krishan Kumar and Dhan Singh. However, even he in his cross-examination admitted that when his statement was recorded by the ASI Roshan Lal on 6.11.2004 immediately after the recovery of the girl, he did not mention that the person who was holding the hand of the prosecutrix was Rajesh. He has also stated that the first statement of prosecutrix was recorded in his presence which was marked as Ext. PB. He also admitted that this statement was read over to the prosecutrix and she put her signatures on the same and thereafter it was endorsed by the ASI. Though a Police Officer, the manner in which he answered some of the questions makes it clear that he was not truthful in giving the correct description of the events. He went to the extent of saying that he did not know that prosecutrix had disclosed the name of Rajesh or not. He even stated that he did not remember if ASI Roshan Lal himself scribed the statement Ext. DB or it was got scribed by some other official. When he was shown the statement Ext. DB and the endorsement of the ASI thereupon, he admitted that the said statement was recorded by himself. It is strange that when he had recorded the statement, though as per the directions of ASI (which he stated later), how he could say earlier that he did not know as to who had scribed the said statement. Even his statement is not found worthy of any credence. It would, however, be necessary to mention that at a later stage in his cross examination he admitted that when he reached the bus stand Hisar, along with Krishan Kumar, Krishan Kumar had identified Om Prakash with the prosecutrix.