CRA D-929-DB OF 2013 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA D-929-DB OF 2013 DECIDED ON 01.10.2013 R (name of the alleged victim kept secret) Appellant versus 1. [ENTITY] and 2. [ENTITY] son of Bhoop Singh, aged about 23 years, student, resident of VPO Kanwarpura, District Sirsa. Respondents CORAM HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate for the appellant. [ENTITY],J Appellant got her statement recorded in Police Station Ding to the effect that she is daughter of [ENTITY] and her marriage was solemnized with [ENTITY] son of [ENTITY] on 26.06.2001 at village Kanwarpura and she is having two children out of that marriage. Name of the [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -2- elder boy is [ENTITY], who is aged six years and younger to him is daughter namely [ENTITY], aged about five years. Her husband is a labourer by occupation. On 17.08.2009, her husband had gone out of the house in connection with some work. She alongwith her children after taking meal went to sleep in the compound of her house, having no gate. About 12 mid night, respondent no.2 [ENTITY] son of [ENTITY] came to her and put his hand at her mouth and asked her that if she raised an alarm, then her husband would be beheaded by him. Thereafter, respondent no.2 took her to the shed of their house located in the area of village Kanwarpura and committed rape on her. In the scuffle, her shirt was also torn. In the meantime, her husband also came at the spot, who tried to catch respondent no.2, but he managed to flee after abandoning his trousers, purse, belt, mobile phone and pair of footwear in the house. Statement supra of appellant was recorded by the police in Police Station Ding, where, she had gone there alongwith her husband namely [ENTITY]. On the basis of her statement supra, formal FIR was registered in Police Station Ding. Then, she was sent to Primary Health Centre, Ding for her medical examination. Since the doctor was not [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -3- available there, she was taken to Civil Hospital, Sirsa for that purpose. Doctor after conducting her medical examination, handed over the sealed parcel to the police, that was seized vide memo by the police. Statement of the appellant was got recorded in terms of [SECTION] of the [ACT] ('[ACT]' - for short), wherein, she narrated the incident. Investigating Officer also visited the spot, seized broken pieces of bangles, trousers, purse, belt and footwear of respondent no.2, who also recorded the statements of prosecution witnesses in terms of [SECTION] [ACT] During the course of investigation, on 18.08.2009, Investigating Officer arrested respondent no.2 and got him medically examined in Primary Health Centre, Ding. The underwear of the respondent no.2 was handed over by the doctor to the police after conducting his medical examination. Sealed parcels were sent to Forensic Science Laboratory, Madhuban and after the receipt of the report, as also, after completion of investigation, Station House Officer of Police Station Ding, instituted police report in terms of [SECTION] [ACT] before the learned Illaqa Magistrate to the effect that it appears that the respondent no.2 has committed offences punishable under [SECTION], [SECTION] and [SECTION] of the [ACT] ('[ACT]' - for short). [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -4- On presentation of police report, copies of documents, as required under [SECTION] [ACT], were furnished to respondent no.2 by the learned Illaqa Magistrate, who later committed the case to the Court of Session, that was assigned to the learned Additional Sessions Judge, Sirsa, who framed charge against the respondent no.2 for commission of offences punishable under [SECTION], [SECTION] and [SECTION] [ACT], whereto, he pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned. At the trial, prosecution examined, as many as, nine witnesses, who deposed as under:- PW1 Dr.[ENTITY], Lady Medical Officer, General Hospital, Sirsa tendered in evidence her affidavit Ex.PW1/A. PW1 also deposed that on police request Ex.P1, she conducted medical examination of the appellant. She handed over to the police shirt Ex.P2, salwar Ex.P3, slides Ex.P4 and Ex.P5, vials containing the swabs Ex.P6 and MLR of prosecutor Ex.PW1/B. PW2 Dr.[ENTITY], Incharge PHC Ding also tendered in evidence his affidavit Ex.PW2/A, who also deposed that on police application Ex.P7, he conducted medical examination of [ENTITY] and handed over to [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -5- police, underwear of the respondent no.2 Ex.P8 and his MLR Ex.PW2/B. PW3 [ENTITY], EASI, Police Station Ding tendered in evidence his affidavit Ex.PW9. PW4 [ENTITY], EHC No. 1249, Police Station Ding deposed that on 18.08.2009, he delivered the copy of FIR Ex.P10 to the Illaqa Magistrate and, thereafter, to the Superintendent of Police, Sirsa and then to the Deputy Superintendent of Police, Sirsa. PW5 [ENTITY], Draftsman deposed that on 01.09.2009, on his summoning to Police Station, Ding and then at the instance of the appellant, he prepared scaled site plan Ex.P11. The appellant herself appeared as PW6 and reiterated the version given by her to the police in her statement. PW7 [ENTITY] is the husband of the appellant and he also corroborated the statement of the appellant given by her to the police. PW8 [ENTITY] tendered in evidence his affidavit Ex.P16. PW9 SI [ENTITY] is the Investigating Officer of the present case who deposed on the lines of investigation [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -6- conducted by him. After the closure of the prosecution evidence, respondent no.2 was examined in terms of [SECTION] [ACT], wherein, he denied the allegations of prosecution, pleaded innocence and false implication in the case. He was called upon to enter in defence and he examined [ENTITY] as DW1 and closed defence evidence, later. After hearing both the sides, as also, after perusal of the evidence and material on record,learned trial Court vide impugned judgment dated 15.03.2010 acquitted respondent no.2 of offences wherefor, he was charged by it. Aggrieved, thereagainst, the appellant, who was prosecutrix and complainant before the learned trial Court has come up in this appeal bearing [CASE NUMBER] with prayer for acceptance, thereof, and for convicting and sentencing the respondent no.2 for commission of offences, wherefor, he was charged by the learned trial Court. Learned counsel for the appellant contended that the learned trial Court wrongly acquitted the respondent no.2 of the offences, wherefor, he was charged by it. He also contended that even the statement of the appellant was recorded with promptitude on 19.08.2009 and no woman [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -7- would like to put her honour on stake by levelling such allegations on any person. He also contended that DW1 was not a summoned witness and he admitted that he was brought by the father of respondent no.2 to depose in his favour and the story propounded by him is totally unbelievable. He also contended that the findings recorded by the learned trial Court that there is in-ordinate delay in the case and the presence of semen on the salwar of the appellant is not established are erroneous. He also contended that, indeed, all material points were duly established and ingredients of offence under [SECTION] [ACT] were duly proved and, therefore, the respondent no.2 was liable to be convicted. We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellant, as also, we have perused the record with his assistance, but find no merit, therein, for the reasons that follow: Indubitably, [ENTITY] filed [CASE NUMBER] titled [ENTITY] vs. [ENTITY], whereby, impugned judgment of acquittal of respondent no.2, herein, was challenged. Indubitably, leave to appeal to respondent no.1, herein, was declined and [CASE NUMBER] was [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -8- dismissed vide order dated 20.12.2010 by this Court. There is no reason to differ with the finding given by this Court in the application for leave to appeal supra, wherein, impugned judgment of acquittal of respondent no.2, herein, was upheld and affirmed. Besides, prosecutrix was married having two children and was thus, major. She was not knowing the respondent no.2 prior to the incident, who was also not on visiting terms to her as can be seen from her deposition. Occurrence took place on the intervening night of 17/18.08.2009 at about 12 mid night, whereas, statement of the appellant was recorded on the next day at about 11:40 a.m. When she was not knowing respondent no.2 prior to the incident, who was also not on visiting terms to her, then how she had named him in the FIR, as also, how she gave his complete address in the FIR. As per deposition of PW1 Dr.[ENTITY], there was no external injury on the person of the appellant, although, she deposed that when she resisted, her shirt was torn. If she had resisted, then she might have got some injury on her person. If respondent no.2 had raped her, in that event, there was possibility of some injuries on her person. Non presence of injury on the person of the appellant must lead [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -9- to a conclusion that she had consensual sex with respondent no.2 and the learned trial Court rightly held so in this regard. Even, the medical evidence is not supporting the case of the prosecution, because a vaginal swab was sent to Forensic Science Laboratory that did not bear stain of semen while, the salwar of the prosecutrix and the underwear of the respondent no.2 bore stains of semen. Doctor who conducted medical examination of respondent no.2 failed o take his blood sample. In the absence, thereof, it is difficult to hold that indeed, it was respondent no.2, who committed the alleged rape with the appellant who is a married woman. As already noticed, the appellant is a married woman and, therefore, it cannot be ruled out that her husband might have performed sexual intercourse with her. Besides, she made improvements in her statement as PW6 in Court. She got recorded that 5/6 persons were with her when she got lodged the report with the police. While her husband PW7 deposed that he alongwith his wife (appellant) had gone to Police Station to lodge the report with the police. The appellant failed to raise any alarm at the time of alleged occurrence. If she would not have been a consenting party, she would have raised hue and cry at the time of alleged incident that would have attracted the persons of [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -10- nearby houses, as her house is situated within the abadi of the village. It is the case of the appellant that respondent no.2 had put his hand on her mouth and dragged her inside the shed of her house. If she would have been dragged by the respondent no.2, then there was every possibility of suffering of injuries by her in this dragging of her by the respondent no.2 to the shed of her house. The appellant also deposed that respondent no.2 had left at the place of incident his trousers, belt, purse, mobile and footwear etc. In other words, he would have put off his belongings only with his own hands and she could have got herself emancipated from the respondent no.2, when he was putting off his belongings. This incident cannot rule out the consensual sex by the appellant with the respondent no.2. Besides, there is in-ordinate delay in lodging the FIR and delay has been used in fabricating the facts of the case. Even if the incident is accepted, it would show that this occurred with the consent of the appellant. If the husband of the appellant had arrived on the scene, he would have caught hold the respondent no.2. The statement of the appellant was rightly disbelieved by the learned trial Court. [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -11- Respondent no.2 was not armed with any weapon and, therefore, he could not perform sexual intercourse with the appellant by force. If the incident would not have been consensual, in that event, the appellant would have raised hue and cry that would have attracted the people from the vicinity. The appellant has failed to explain, as to why she did not raise hue and cry. Her silence in the matter would lead to a conclusion that she herself wanted to have consensual sex with respondent no.2. It has been held by the Hon'ble Supreme Court of India in [PRECEDENT], that in a case, where two views are possible, the one which favours the accused has to be adopted by the Court. In State of Punjab v. Hansa Singh; Singh; 2001 (1) RCR (Criminal) 775; wherein, while dealing with an appeal against acquittal, it was opined as under: - "We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in [PRECEDENT], which are that interference in an appeal against acquittal would be called for only if the judgment under appeal was perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -12- to take a difference view, could not be a reason calling for interference." There is, thus, no perversity in the impugned judgment and, therefore, no interference, therein, is called for. Accordingly, same is, hereby, upheld and affirmed and the appeal being devoid of merit is, hereby, dismissed. ([ENTITY]) ([ENTITY] ) JUDGE JUDGE 01.10.2013 mamta 1. Whether the Reporters of the Local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or? Yes 3. Whether the judgment should be reported in the digest? Yes [ENTITY] 2013.10.05 12:28 I attest to the accuracy and integrity of this document Chandigarh CRA D-929-DB OF 2013 -13- [CASE NUMBER] IN [CASE NUMBER] Rajesh vs. [ENTITY] and another Present: Mr.[ENTITY], Advocate for the applicant-appellant.
Filing of certified copy of the judgment passed by learned Additional Sessions Judge, Fast Track Court, Sirsa dated 15.03.2010 is exempted.
CRM stands disposed of.
The criminal misc. application has been filed under [SECTION] of the [ACT] for condonation of 1159 days delay in filing the appeal.
It is averred that the applicant being prosecutrix was pursuing the remedy before the learned trial Court for aprising the State for filing appeal. However, no clue could be available. Apart from this, the applicant is still harassed by the respondent no.2 and the honour and dignity is at stake. It is further averred that the applicant is an illiterate lady. On that account, there occurred delay of 1159 days in [CASE NUMBER] IN [CASE NUMBER] -2- filing the appeal.
After giving our thoughtful consideration to the matter, it may be noticed that when technical considerations and cause of substantial justice are pitted against each other, the latter is to be preferred for the other side cannot claim to have a vested right in injustice being done, because of a non-deliberate act of delay, in filing the appeal. Besides, a litigant does not stand to gain by resorting to delay in filing the appeal. In fact, he runs a serious risk. Therefore, it would be just and expedient to condone the delay in filing the appeal and hear the case of the applicant/appellant on merit, rather than non-suiting her on technical considerations of delay in filing the appeal.
Accordingly, the criminal misc. application is allowed and delay of 1159 days in filing the appeal is condoned.
([ENTITY]) JUDGE ([ENTITY]) 01.10.2013 JUDGE mamta