Criminal Appeal No. 2277-SB of 2008 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Appeal No. 2277-SB of 2008 Date of Decision: 2.11.2011 Chandbir ... Appellant Versus The State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. R.N. Lohan, Advocate for the appellant. Mr. Anupam Sharma, Assistant Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) Chandbir, present appellant, has been named as an accused in case FIR No. 372 dated 8.7.2006, registered at Police Station City, Rohtak, under Sections 376 and 506 IPC. He was tried in the said FIR by the Court of Sessions Judge, Rohtak, who, vide impugned judgment dated 25.10.2008, held him guilty for the offence under Sections 376 and 506 IPC. Vide a separate order dated 31.10.2008, the appellant was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 5,000, for the offence under Section 376 IPC, in default whereof to further undergo rigorous imprisonment for a period of three months. The appellant was further sentenced to undergo rigorous Criminal Appeal No. 2277-SB of 2008 2 imprisonment for a period of five years and to pay a fine of ` 2,000, for the offence under Section 506 IPC, in default whereof to further undergo rigorous imprisonment for a period of one month. Both the sentences were ordered to run concurrently. The appellant assailed his conviction and sentence awarded by the Court of Sessions Judge, Rohtak, by filing the present appeal. The following features of the case are required to be noticed at the outset: a) That the prosecutrix (name withheld to protect her identity), at the time of deposition in the Court, was 33 years of age, twice married and was mother of two sons aged about 15 and 13 years, respectively. b) That the prosecutrix remained in continuous sexual relationship with the appellant over a period of six months. In the above said context, brief facts of the case can be noticed as under. On 8.7.2006 at about 4.00 P.M., the prosecutrix had submitted a written application to PW.12 Dalel Singh, Assistant Sub Inspector, Incharge of Police Post Sabzi Mandi, Rohtak. The application has been proved on record as Ex.P1 and the same, when translated into English, reads as under:- “To the SHO Sahib, Police Station City, Rohtak. Subject: Registration of case for the offence of rape. Sir, it is submitted that I wife of Rajesh, caste Jat, is resident of village Titoli. My husband Rajesh is Criminal Appeal No. 2277-SB of 2008 3 undergoing imprisonment in District Jail, Rohtak, and am employed in S.T.D. Booth near Labour Chowk, Rohtak. About six months ago, Chandbir son of Kapoor Chand, caste Chamar, resident of village Bharan came to the STD shop and told me that he could help me in securing loan from the bank and for that purpose, he demanded copy of ration card and identity card. I handed over photocopy of ration card and identity card to him. Thereafter, Chandbir started putting pressure upon me that he would show the copies of ration card and identity card to my family members, otherwise I should live with him. Then he administered some intoxicant to me in a cup of tea and thereafter he took me to his rented room in Chameli Market and where he committed sexual intercourse with me against my wishes. Thereafter, on the promise and pretext of obtaining bank loan for me he used to call me to his room and used to tell that in case I disclosed these facts to anybody he may liquidate me. I, due to fear and shame, had not disclosed these facts to anybody. My husband Rajesh came on parole from Jail on 22.6.2006. I had not disclosed these facts to him for many days but at last I narrated all the facts to my husband Rajesh and father-in-law Hawa Singh son of Nandu, Jat, resident of village Titoli. Criminal Appeal No. 2277-SB of 2008 4 Thus, it is prayed that legal action be taken against Chandbir son of Kapoor Chand, caste Chamar, resident of Bharan”. On the basis of what has been stated in the complaint, formal FIR Ex.P2 was registered. The same was investigated and report under Section 173 Cr.P.C. was submitted. The case was committed and entrusted for trial to the Court of Sessions Judge, Rohtak. On 23.11.2006, the appellant was charged for the offence under Sections 376 and 506 IPC. The first charge stated that six months prior to 8.7.2006 at Rohtak,falling within the jurisdiction of Police Station City, Rohtak, the appellant had committed rape upon the prosecutrix on several occasions and thereby committed an offence punishable under Section 376 IPC. The second charge stated that during the period of six months before 8.7.2006, the appellant had criminally intimidated the prosecutrix by threatening her that he would kill her husband and thus, committed an offence punishable under Section 506 IPC. The appellant pleaded not guilty and claimed trial. The prosecution commenced its evidence. PW.1 Udevir Singh, Assistant Sub Inspector, stated that he received a ruqa Ex.P1 from Dalel Singh, Assistant Sub Inspector, on the basis whereof, a formal FIR Ex.P2 was registered. PW.2 Ram Niwas, Inspector, CIA Staff, Panipat, had prepared and forwarded the report under Section 173 Cr.P.C. PW.3 Harpal Singh, Head Constable, stated that on 8.7.2006, he got the appellant medicolegally examined from the Civil Hospital, Rohtak. Criminal Appeal No. 2277-SB of 2008 5 PW.4 Lekh Ram, Sub Inspector, had got prepared the scaled site plan of the place of occurrence from Samit Kumar, Constable and also recorded the statement of witnesses. PW.5 Vimal Sapra, Sub Divisional Judicial Magistrate, Gohana, District Sonepat, had recorded the statement of prosecutrix under Section 164 Cr.P.C. The prosecutrix herself appeared as PW.6 and stated that about two years ago she used to work on S.T.D. Booth near Labour Chowk at Rohtak at monthly salary of ` 1,500 and at that time her husband was in jail. She further stated that six months prior to 8.7.2006 the accused started visiting the said S.T.D.Booth. He once informed that he could secure loan for her, provided photocopies of ration card and identity card are handed over to him. Those documents were handed over to the appellant. He, thereafter, started blackmailing her saying that he possess her photograph and would show the same to her husband. One day, the appellant, came to her shop and offered her a cup of tea. After consuming tea, the prosecutrix became semi conscious. Thereafter, the accused took her to his rented room in the area of Chameli Market, Rohtak and committed sexual intercourse forcibly. When the prosecutrix regained consciousness, the accused threatened her with the consequence of death in case she narrated the incident to anybody. Thereafter, the accused continued to commit rape upon the prosecutrix under the threat of blackmailing. When her husband came home on parole, she mustered courage and narrated all the facts to him and her father-in-law. In cross-examination, the prosecutrix stated that she was married to Rajesh son of Hawa Singh, Criminal Appeal No. 2277-SB of 2008 6 resident of village Titoli about five years ago. It was her second marriage. Earlier, she was married with Rajesh son of Jagdish. The said marriage was dissolved by compromise and no decree of divorce was obtained. She was having two sons from the first marriage, who are aged about 15 and 13 years, respectively. She has no issue from the loins of her second husband. She had filed a petition under Section 125 Cr.P.C. against the first husband and ` 1,500 was paid to her as maintenance. However, she had returned the said amount. She admitted that Punjab Kesari Newspaper dated 8.7.2006 carried a news Ex.D1 which stated that she had given beating to her earlier husband in active association of her lover. She later clarified that in the photograph of the said news, she was beating the appellant, present in the Court. The following lines of her cross-examination are required to be noticed:- “...The rented house of the accused was on the second floor. The house was situated in a thickly populated area. Many persons were residing in that house. The accused lastly committed rape upon me approximately three months prior to the registration of the present case...” XXX XXX XXX XXX XXX XX “...Volunteered the accused committed rape upon me for about 10/15 times prior to the registration of the case...” PW.7 Hawa Singh, father-in-law of the prosecutrix, corroborated her testimony to the extent that the facts were narrated to him by the prosecutrix. Criminal Appeal No. 2277-SB of 2008 7 PW.8 Samit Kumar, Constable, had prepared scaled site plan Ex.P7. PW.9 Bijender Singh, Head Constable, tendered into evidence his affidavit Ex.P8 to prove link evidence. PW.10 Sudesh Rani, Lady Constable, stated that on 8.7.2006 on the asking of Dalel Singh, Assistant Sub Inspector, she got the prosecutrix medicolegally examined. PW.11 Dr. S.P.S. Bhatia stated that on 8.7.2006 he medicolegally examined the appellant and there was nothing to suggest that he was incapable of doing sexual intercourse. PW.12 Dalel Singh, Assistant Sub Inspector, proved the various facets of investigation including registration of the case. PW.13 Dr. Rita Goyal stated that on 8.7.2006 at about 7.35 P.M. she had medicolegally examined the prosecutrix. Since the prosecutrix was a married lady and sexually active, therefore, her medicolegal evidence is not required to be noticed. I have heard Mr. R.N. Lohan, Advocate, appearing for the appellant and Mr. Anupam Sharma, Assistant Advocate General, Haryana, appearing for the State. Mr. Lohan has submitted that it is a case of false implication. The appellant was pressurized by the prosecutrix to shell out ` 50,000 and due to his inability he has been falsely implicated in the present case. Learned counsel for the State has submitted that no lady will put her reputation at stake and falsely implicate anyone. After giving due consideration to the rival submissions Criminal Appeal No. 2277-SB of 2008 8 advanced by learned counsel for the parties, this Court is of the view that it is a case where consent on the part of the prosecutrix is writ large and hence it cannot be said that the appellant is guilty of offence of rape. As per the story narrated by the prosecutrix, six months before 8.7.2006, the appellant had approached the prosecutrix and had given a promise that he could obtain a loan for her from the bank and on that pretext he had obtained a photocopy of ration card and identity card of the prosecutrix which contained her photograph. The story divulged that the accused told the prosecutrix that he would show the photocopy of her ration card and identity card to her family, therefore, he yielded pressure to fulfill his lust to have sexual intercourse with her look improbable, unnatural and unconvincing. Furthermore, the fact that the prosecutrix has been going to the room of the appellant for a period of six months, cannot be ignored. According to her own statement the appellant had committed sexual intercourse with her for 10/15 times. It is admitted by the prosecutrix that the rented room is in the market, which is a thickly populated area. It is improbable that for a period of six months she did not disclose this fact to anybody. This Court cannot ignore the fact that at the time of her deposition, the prosecutrix was 33 years old and was twice married. All the above said facts indicate that she was the consenting party to the sexual activity with the accused. The possibility, as suggested by learned counsel for the appellant, that after the husband of prosecutrix released on parole, probably her relationship with the appellant came into light and she had made up the story of rape, cannot be ruled out. Thus, in the facts and circumstances of the case, this Court is Criminal Appeal No. 2277-SB of 2008 9 of the view that the appellant ought to be granted benefit of doubt. Hence, the present appeal is accepted. The judgment of conviction and order of sentence, awarded upon the appellant, are set aside. The appellant is acquitted of the charges. (Kanwaljit Singh Ahluwalia) Judge November 2, 2011 “DK”