Crl.Misc.No. 528-MA of 2011 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.Misc.No. 528-MA of 2011(O&M) Date of decision: 01.09.2011 Dolly ..... Applicant-Appellant Versus State of Haryana & another ..... Respondents. CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. K.S. Jetley, Advocate for the applicant-complainant. -- VIJENDER SINGH MALIK J. Crl.Misc.No.38280 of 2011 Criminal miscellaneous application praying for permission to place on record true copies and exemption from filing certified copies, is allowed as prayed for. Crl.Misc.No.38281 of 2011 For the reasons mentioned in the application, delay of 76 days in re-filing the appeal is condoned. Disposed of. Crl.Misc.No. 528-MA of 2011 This is an application by the prosecutrix of a case registered at Police Station Panjokhra by way of FIR No. 70 dated Crl.Misc.No. 528-MA of 2011 --2-- 28.9.2009 for an offence punishable under sections 292, 376 and 506 of the Indian Penal Code for leave to appeal against the judgment dated 30.10.2010 passed in the case by learned Additional Sessions Judge, Ambala vide which Satish Kumar, respondent no.2 has been acquitted of the charge. The case set up against Satish Kumar, is as under:- The prosecutrix, a resident of Ambala Cantt, made a complaint in writing to the police alleging that Satish Kumar, respondent no.2 and other accused were her neighbours and that she was on visiting terms with them. As per her complaint, she was on friendly terms with Satish Kumar and that he had expressed his desire to marry her. Smt. Sheela Devi, mother and Ashish Kumar, brother of respondent no.2 were agreeable to the proposal of the matrimonial alliance. The parents of the prosecutrix had also agreed and accordingly, a 'Roka Ceremony' took place on 16.8.2008 in the presence of family members and above named Sheela Devi and Ashish Kumar. After a few days, to her utter surprise, Satish Kumar forced her to have physical relations with him. After initial objection, she surrendered herself and had physical relationship with him. During one such occasion, Satish Kumar took her obscene photographs with him without her knowledge and on the strength of those photographs, he started blackmailing her and having sex with her forcibly. The other accused were aware of this fact. She became pregnant in November 2008 and requested Satish Kumar to marry her. Crl.Misc.No. 528-MA of 2011 --3-- He started avoiding her and in December, 2008 he forced her to take 'Desi Medicine' resulting in an abortion. On 25.12.2008 Satish Kumar, accused called her at his residence on the pretext of returning the photographs to her. She reached the house of Satish Kumar at 6.00 PM in the evening. He again had forcible sex with her and even did not return her photographs. She brought this fact to the notice of Smt. Sheela Devi. She also misbehaved with her. She also hurled cheap abuses at her and had moreover physically assaulted her. The complainant and her entire family members kept quite on the assurance that Satish Kumar would marry her. In June, 2009, Satish Kumar finally refused to marry her. Feeling cheated, she made a complaint to the police authorities. She made other complaints on similar lines against respondent no.2 and others but the police did not take action. She finally moved written complaint dated 23.09.2009 and on this complaint, a case was registered on 28.09.2009. After the usual investigation, challan for an offence punishable under sections 292, 376 and 506 of the Indian Penal Code was prepared against Satish Kumar. Framing charge for an offence punishable under sections 292, 376 and 506 of the Indian Penal Code against the accused, to which he pleaded not guilty and claimed trial, the trial commenced in which eleven witnesses are shown to have been examined by the prosecution. The accused was thereafter examined in terms of section 313 of the Code of Criminal Procedure, in which he has denied the Crl.Misc.No. 528-MA of 2011 --4-- truth of the prosecution evidence put to him in the shape of questions and has claimed himself to be innocent and to have been falsely implicated. In defence, he examined two witnesses and closed the same. Hearing learned Public Prosecutor for the State and learned counsel for the defence, learned trial court found the prosecutrix to be a consenting party. On that account, learned trial court has held that the prosecution has failed to bring home the charge against the accused. Consequently, the accused was acquitted of the charge. Aggrieved by the said judgment of acquittal, the prosecutrix has brought this application. We have heard Mr. K.S. Jetley, learned counsel for the applicant-complainant. Learned counsel for the applicant has contended that learned trial court has not considered the fact that the consent in this case was based on the promise to marry. According to him, if consent of a girl is obtained on such a false promise of marriage, then the person having sex with her, is guilty of rape. Learned counsel for the applicant has not disputed the conclusion arrived at by learned trial court that the prosecutrix has been the consenting party to the sexual intercourse respondent no.2 had with her. The reasons given by learned Additional Sessions Judge are quite convincing and the findings of learned trial court are based Crl.Misc.No. 528-MA of 2011 --5-- on evidence. The prosecutrix has claimed that a 'Roka Ceremony' had been performed on 16.08.2008. According to her, it is after this date that Satish Kumar forced her to have sexual relations with him. There is no evidence worth belief about this 'Roka Ceremony' . Not even a single photograph of this ceremony had been produced. Apart from the prosecutrix and her mother, no relation to state about the 'Roka Ceremony' had been examined. The prosecutrix has further claimed that on one such occasion, Satish Kumar clicked some obscene photographs of her with him and on the strength of those photographs, he blackmailed her and forced her to submit to his sexual desires. The taking of obscene photographs is said to have taken place soon after the 'Roka Ceremony'. In June 2009, Satish Kumar had finally refused to marry her and thereafter, there was no occasion for him to have sexual intercourse with her or to have her obscene photographs. If those obscene photographs were taken in June 2009, the prosecutrix had been making complaints thereafter in June itself as well as on 6.8.2009. In none of those complaints, she had mentioned about the taking of her obscene photographs by Satish Kumar. Had it been a fact, the same could not have been absent from previous complaints made to the police. There is, moreover, no other evidence of those photographs and the story of photographs appears to be unreliable. Crl.Misc.No. 528-MA of 2011 --6-- Dr. Alaknanda at Civil Hospital, Ambala City medicolegally examined the prosecutrix on 29.9.209. Before her, the prosecutrix admitted of her having taken 'Desi Medicine' at least twice to prevent pregnancy. This conduct on her part would further prove that it was a case of just sexual relationship between the two and there had been no promise of marriage on the part of Satish Kumar to the prosecutrix. In these circumstances, it can definitely be said that the prosecution had failed to lead any believable evidence regarding any promise of marriage made by Satish Kumar to the prosecutrix. Once this aspect goes, the prosecutrix having been clearly shown to be consenting party, no ingredient of the offence of rape had been made out. Therefore, the judgment of the learned trial court is quite logical and based on evidence and we find no ground to interfere with the same. Consequently the application for leave to appeal is dismissed. (VIJENDER SINGH MALIK) JUDGE ( HEMANT GUPTA) JUDGE 01.09.2011 dinesh