IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 466-DB of 2006 DATE OF DECISION : 12.08.2011 Ramu .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE ARVIND KUMAR Present: Ms. Tanu Bedi, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Ramu, aged about 56 years, who is in custody for the last more than seven years, was tried by the court of Additional Sessions Judge, Hisar, for kidnapping three years old girl Ashu and committing rape on her. Vide judgment dated 27.4.2006, the trial court convicted the appellant under Sections 363 and 376 IPC, and vide order dated 28.4.2006, he has been sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 2,000/-, in default of payment of fine to undergo rigorous imprisonment for six months under Section 363 IPC; and to undergo rigorous imprisonment for a period of twelve years and to pay a fine of ` 2,000/-, in default of payment of fine to undergo rigorous Crl. A. No. 466-DB of 2006 -2- imprisonment for six months under Section 376 IPC. Both the sentences have been ordered to run concurrently. 2. The case of the prosecution is based upon the statement of Mamta (PW.1), mother of the prosecutrix. She along with her husband Satpal and three children, including her three years old daughter Ashu, was residing at Patel Nagar, Hisar. According to her, her husband had gone to village for the last many days, and on 3.8.2004, at about 8.00 AM, after leaving her children at home with her mother-in-law and father-in-law, she had gone to Hisar for labour work. At 5.00 PM, when she came back, she did not find her daughter Ashu present at home. Her mother-in-law and father-in-law told her that she has gone some where, while playing. She searched her in the vicinity, but could not find any clue. Then she along with Deva and Ashok, residents of Shashtri Nagar, Hisar, went in search of Ashu. When they reached at the house of Rani Rajputni, appellant Ramu (accused) was found taking Ashu in his lap. They immediately took the girl from the appellant and the girl started weeping. On questioning, the girl by pointing towards her private part disclosed that the appellant had done immoral act. On their threatening, the appellant confessed his guilt. Thereafter, they came back to their house and narrated the entire occurrence to the inhabitants of the locality. They took the girl from Patel Nagar to Setia Doctor, who advised them to take her to Civil Hospital, but they did not take her to Civil Hospital. After two days, i.e. on 10.3.2004 at 4.45 PM, Mamta got the FIR registered. Her statement to the aforesaid effect was Crl. A. No. 466-DB of 2006 -3- recorded by ASI Jagdev Singh (PW.7), on the basis of which the formal FIR (Ex.P1) was registered against the appellant. 3. On the same day, i.e. on 10.3.2004, at 6.00 PM, Dr. Himani Gupta (PW.3) conducted the medical examination of Ashu, being the alleged case of rape. She found no mark of injury on any part of the body of girl. She found that the secondary sexual character of the girl was not developed. On local examination, there was no injury on local part. Only slight redness was present near hymen, though hymen was intact. Two vaginal swabs were taken and sent for semen analysis. Green colour salwar of the girl was taken, which was duly sealed and handed over to the police. 4. On the same day, the appellant was arrested. During interrogation, he pointed out the place of occurrence, where he committed the rape. The memo of pointing out (Ex.P3) was prepared, which was attested by Mani Ram (PW.5) and complainant Mamta. Rough site plan (Ex.P12) of the place of occurrence was also prepared. The appellant was medically examined by Dr. R.J. Bishnoi (PW.4). His external genitalia were well developed and were of adult size. No smegma was present underneath prepuce of penis. No external mark of injury was present over his body. Nothing was found to suggest that he was not able to perform sexual intercourse. His pyjama was taken, which was duly sealed and handed over to the police. 5. As per the report of the Forensic Science Laboratory, Haryana Madhuban (Ex.P15), no semen was found either on the clothes of Ashu or Crl. A. No. 466-DB of 2006 -4- on her vaginal swabs. However, on the pyjama of the appellant, semen was detected. 6. After completion of investigation, the police filed challan against the appellant and charges under Sections 363 and 376 IPC were framed, to which he did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined eight witnesses. 8. PW.1 Mamta, who is complainant in this case, is the mother of the victim. She partly supported the case of the prosecution. She was declared hostile and was cross-examined by the Public Prosecutor. 9. PW.2 Satya Narain MHC is the formal witness. 10. PW.3 Dr. Himani Gupta, who conducted medical examination of prosecutix Ashu on the application (Ex.P6) of the police, has proved the copy of MLR (Ex.P5) of prosecutrix Ashu. 11. PW.4 Dr. R.J. Bishnoi, who medically examined the appellant on the application (Ex.P7) of the police, has proved the copy of MLR (Ex.P8) of the appellant 12. PW.5 Mani Ram, a resident of Patel Nagar, Hisar, in whose presence the place of occurrence was got identified from the appellant by the police, has proved the pointing out memo Ex.P3. 13. PW.6 Sube Singh Inspector is the formal witness. 14. PW.7 Jagdev Singh ASI, the Investigating Officer, has proved all the documents prepared by him, during investigation of the case. Crl. A. No. 466-DB of 2006 -5- 15. PW.8 EHC Rajbir Singh is another formal witness. 16. In his statement, recorded under Section 313 Cr.P.C., the appellant denied the incriminating evidence appearing against him and pleaded his innocence. He took the defence that Deva had a dispute with him and a quarrel had taken place between him and Deva, due to which he has been falsely implicated in this case, in connivance with Deva. 17. The trial court, while relying upon the statement of PW.1 Mamta (complainant) as well as the medical evidence, and disbelieving the defence version of the appellant, convicted and sentenced the appellant, as indicated in the first para of this judgment. 18. Learned counsel for the appellant vehemently argued that in the instant case, the prosecution has failed to prove either kidnapping or rape, being committed by the appellant. She further argued that the trial court has convicted the appellant for the alleged offences on the basis of the testimony of PW.1 Mamta, which according to the learned counsel does not establish the case of the prosecution at all that Ashu was kidnapped and raped by the appellant. According to her statement in the court, when her daughter went missing and she was being searched, Deva brought her daughter, but she cannot say from where her daughter was brought. Neither Deva nor Ashok, who were neighbours and allegedly brought the daughter of the complainant, were examined to prove that from where they brought the minor daughter of the complainant. She has only stated that her daughter Ashu told her that the appellant had done a bad act with her. Learned Crl. A. No. 466-DB of 2006 -6- counsel further argued that the medical evidence, led by the prosecution, does not corroborate the prosecution version that rape was committed on the child. Neither any external injury was found nor any injury was found on local part of the girl, which clearly suggest that no rape was committed on her. Even in the report of the Forensic Science Laboratory, Haryana Madhuban, no semen was found on the vaginal swabs and clothes of the prosecutrix. Learned counsel further argued that as per the initial version, given by the complainant, prosecutrix was found in the lap of the appellant in the house of Rani Rajputni, where he confessed that he had committed rape on the daughter of the complainant. Subsequently, the complainant changed the place of occurrence and in the presence of PW.5 Mani Ram and PW.1 Mamta, the place of occurrence was got identified from the appellant as the vacant land near the bushes on the other side of Bagar Railway Line, Hisar. This further creates doubt in the prosecution version. Learned counsel argued that in the instant case, without there being any legal evidence against the appellant, he has been convicted for the offences under Sections 363 and 376 IPC. According to her, the prosecution version that the appellant, who was 56 years old, committed rape on three years old Ashu, is highly improbable and appears to have been based merely on suspicion, without there being any legal evidence. 19. On the other hand, learned Additional Advocate General, Haryana, argued that the trial court has rightly convicted and sentenced the appellant on the basis of the statement of the complainant, duly supported Crl. A. No. 466-DB of 2006 -7- by the medical evidence. 20. After considering the submissions made by learned counsel for the appellant and the respondent-State, we are of the opinion that in the instant case, the prosecution has failed to prove the charges against the appellant beyond reasonable doubt. 21. While appearing in the witness box as PW.1, complainant Mamta has not adhered to the initial version, given by her. In her examination-in-chief, she has stated that when she came back from her work, she found her daughter missing and later on, she was brought back by Deva, but she could not say from where. She stated that Ashu told her that the old man, present in the court, had done a bad act with her. After being declared hostile, when she was cross-examined by the Public Prosecutor, she admitted that she made statement to the police that the prosecutrix by weeping had pointed towards her private part and had stated that the appellant had done bad act with her. She further stated that it is correct that in her presence, the appellant had admitted his guilt regarding commission of immoral act. However, in cross-examination by the defence counsel, she again stated that when after the search, she could not find the girl and she was present in the house, Deva traced and brought her daughter at about 8.00/9.00 PM. Ashok was also with Deva. They both were her neighbours. In this case, Deva could not be examined, as he died during the trial, and Ashok has been given up on the ground that he has been won over. Except the statement of PW.1 Mamta and the medical evidence, there is no other Crl. A. No. 466-DB of 2006 -8- evidence to connect the appellant with the crime. From the statement of PW.1 Mamta, it does not establish at all that her daughter Ashu was kidnapped by the appellant. No body had seen the appellant, while kidnapping Ashu. The mother-in-law and father-in-law of complainant Mamta, in whose custody the girl was there at the time of the alleged kidnapping, have not been examined. After the alleged kidnapping, the girl was brought by Deva, but it has not been established as to from where she was brought. In her initial version, complainant Mamta has stated that when she was searching her daughter and went to the house of Rani Rajputni, they found her daughter Ashu in the lap of the appellant and immediately, she was taken from him. But in the court, the complainant has not supported this version. From her testimony in the court, it has not been established that her daughter Ashu was found in the custody of the appellant. She has only stated that Deva had brought her daughter, but she could not say from where she was brought. Therefore, the offence of kidnapping has not been proved against the appellant. 22. So far as the allegation of rape is concerned, again there is no evidence that any rape was committed by the appellant on the minor girl Ashu. The prosecutrix has not been examined. Only her mother Mamta has been examined, who stated that her daughter told her that the appellant had committed a bad act with her. Though in the initial version, it was stated that immediately when the girl was taken from the lap of the appellant, while weeping, by pointing towards her private part, she disclosed that the Crl. A. No. 466-DB of 2006 -9- appellant had done immoral act, but this part of the statement was not adhered to by Mamta, when she appeared in the court as PW.1. So far as the medical evidence is concerned, the same does not establish that any rape was committed on the minor girl. There was no external mark of injury on the body of the girl. On her local examination, no injury was found on the local part. Only slight redness near hymen was found, though hymen was intact. In her cross-examination, PW.3 Dr. Himani Gupta, who conducted medical examination of Ashu, stated that redness around hymen may be possible by external force of pressure or any inflamanory condition. The medical evidence does not point towards the commission of rape. Even the possibility of attempt to commit rape is also bleak, because when the appellant was medically examined by PW.4 Dr. R.J. Bishnoi, no external mark of injury was found over his private organ or body. 23. On a careful examination of the evidence, available on record, and the prosecution version, case of the prosecution appears to be doubtful. No valid reason has come forward as to why the complaint was lodged after two days of the alleged occurrence. The prosecution has failed to examine the material witnesses i.e. the father-in-law and mother-in-law of the complainant, and the person who went in search of the prosecutrix. Thus, in our opinion, the evidence, led by the prosecution in the present case, is not sufficient to establish the guilt of the appellant and the trial court has committed grave illegality, while convicting the appellant for the alleged offences. Crl. A. No. 466-DB of 2006 -10- 24. In view of the above, this appeal is allowed. The impugned judgment of conviction and the order of sentence is set aside, and appellant Ramu, who is in custody for the last more than seven years, is acquitted of the charges, framed against him. Accordingly, appellant be set at liberty forthwith, if not required in any other case. ( SATISH KUMAR MITTAL ) JUDGE August 12, 2011 ( ARVIND KUMAR ) ndj JUDGE