CRA No.536-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.536-SB of 2002 Date of Decision: 30.07.2010 Chand Ram .......Appellant Versus State of Haryana .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Sudhir Sharma, Advocate, for the appellant. Mr. Pradeep Virk, DAG, Haryana. **** JITENDRA CHAUHAN, J. 1. The present appeal has been directed against the judgment dated 5.3.2002 passed by learned Additional Sessions Judge, Sonipat (hereinafter as 'trial Court'), whereby the appellant has been convicted for the offence punishable under Section 452/376 of the IPC and the order dated 13.3.2002 vide which the appellant has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1000/- under Section 376 of IPC and rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- under Section 452 of IPC. In default of payment of fine, he was to further undergo rigorous imprisonment for a period of six months. However, both the sentences were ordered to run concurrently. 2. The facts of the present case are found narrated in para 2 of the judgement of the learned trial Court, which reads as under:- CRA No.536-SB of 2002 -2- "2. Briefly, narrated the facts of the present prosecution case as alleged are that on 24.11.2000 Ms. Pinki prosecutrix was alone at her house as her brother Ajay and Vijay and sisters Jyoti and Kiran had gone to school while her parents had gone to Ganaur. She stated that the house of Satya Bairagee adjoins her house and thereafter, there is house of Chand Ram, accused. At about 10 AM, when she was alone in her house, Chand Ram, accused, entered in her house from the roof and committed rape on her without her consent. Thereafter, he went out of the house after opening the gate. She raised hue and cry but none was present nearby. At about 3 PM, when her parents returned back to their home, she disclosed the entire incident to them. She stated that thereafter, she along with her parents went to lodge the report. On this statememt, formal FIR was registered." 3. The accused were arrested and after completion of the investigation, the accused was sent to face trial under Section 376/452 of IPC. 4. The accused were charge-sheeted under Section 452 and 376 IPC, to which they pleaded not guilty and claimed trial. 5. In order to substantiate its case, the prosecution examined as many as 13 witnesses, namely, Dr. (Ms.) P L Bansal as PW1; Dr. Ashwani Kumar as PW2; Head Constable Jaipal Singh as PW3; Dr. A S Ahlawat as PW4; ASI Rameshwar as PW5; Head Constable Jaipal Singh as PW6; Pinki, CRA No.536-SB of 2002 -3- prosecutrix, as PW7; Tara Chand, father of the prosecutrix as PW8; Rajbala as PW9; SI Ram Avtar as PW10; Ms. Asha Rani, SI, as PW11; HC Ranbir Singh as PW12; and Constable Jagbir Singh as PW13. 6. The accused were examined under Section 313 Cr.P.C. in which they pleaded to be innocent. No witness was examined in defence. 7. The learned trial Court, after hearing learned counsel for both the parties and analysing the evidence available on record, convicted the present accused for the offence and term as indicated at the outset of this judgment. 8. Agrieved from the judgment of conviction and order of sentence, the accused-appellant has preferred the present appeal before this Court. 9. Learned counsel for the appellant has argued that there is inordinate and unexplained delay in lodging the FIR and the appellant has been falsely roped in the instant case. 10. Learned counsel has argued that as per the medico-legal report of the prosecutrix prepared by Dr. (Mrs.) P L Bansal, PW1, no external mark of injury on the person of the prosecutrix was found. As per Ex.PG, the doctor has opined that the possibility of rape could not be ruled out. However, no injury on the person of the prosecutrix was noticed by the said doctor, therefore, learned counsel further submitted that it was a clear-cut case of consent and the appellant has been falsely implicated in the present case. 11. Learned counsel has aruged that no age proof has been produced on record by the prosecution. The only evidence as regards the age of the prosecutrix is the report, Ex.PE, issued by Dr. Ashwani Kumar, Radiologist, PW2, who examined the prosecutrix on 3.5.2001 with regard to her age. In CRA No.536-SB of 2002 -4- the said report, the age of the prosecutrix is stated to be between 15 ½ to 16 ½ years with a further opinion that there cannot be variation of two years plus or minus in her age on either side. Learned counsel has stated that this issue has been discussed by the learned trial Court in para 16 of its judgment while discarding this piece of evidence and observed that some other girl might be examined instead of prosecutrix by Dr. Ashwani Kumar, PW2. As such, there is no conclusive evidence as regards the age of the prosecutrix. 12. Learned counsel has next argued that there are material improvements in the statements of the prosecutrix and in the statement of PW9-Raj Bala, mother of the prosecutrix. 13. On the other hand, the learned counsel for the State has submitted that there is a categoric finding of the trial Court that the prosecutrix was not a consenting party. From the medico-legal report prepared by Dr. (Mrs.) P L Bansal, it is clear that rape was committed upon the prosecutrix. 14. I have heard learned counsel for the parties and perused the record. 15. Admittedly, there is no conclusive proof of age of the prosecutrix on record. The report of the Radiologist, Dr. Ashwani Kumar, PW2, has been discarded by the learned trial Court with an observation that the prosecutrix has not been examined by the doctor and instead, some other girl might have been examined. Further, from the admission of the prosecutrix that she was married on 17.2.2001, i.e., prior to her radiological examination, it is completely established that the age of the prosecutrix was not below 18 years as on 17.2.2001 at the time of her marriage and shw was between 17.18 years (more than 17 years and 10 months) on the date of CRA No.536-SB of 2002 -5- alleged occurrence, which according to the prosecutrix, took place on 24.11.2000. 16. The prosecutrix has made material improvements in her statement which renders the case of the prosecution highly improbable. In her first version, which is the basis of registration of FIR, the prosecutrix had stated that the appellant gagged her mouth with his hand whereas in her testimony recorded before the learned trial Court, she made improvement saying that her mouth was gagged by the appellant with his handkerchief. 17. As many as three FIRs have been got lodged by the prosecutrix against the appellant but in none of the case, application of any force by the appellant is established on record because there was no external mark of injury found on the person of prosecutrix. Further, no mark of injury was found on the person of appellant as well. The age of the prosecutrix is also not proved on record. 18. From the facts, it is established that the marriage of the prosecutrix took place on 17.2.2001. There is no dispute that the prosecutrix was more than 17 years of age on the date of occurrence. From the surrounding circumstances, it is proved beyond reasonable doubt that the prosecutrix is a consenting party in the present case. 19. Hon'ble Supreme Court in Abbas Ahmad Choudhary V. State of Assam, 2010 (2) RCR (Criminal) 120, has observed as under:- "5. We are however, of the opinion that the involvement of Abbas Ahmad Chaudhary seems to be uncertain. It must first be borne in mind that in her statement recorded on 17th September, 1997, the prosecutrix had not attributed any rape to Abbas Ahmad Chaudhary. Likewise, she CRA No.536-SB of 2002 -6- had stated that he was not one of those who kidnapped her and taken to Jalalpur Tea Estate and on the other hand she categorically stated that while she along with Mizazul Haz and Ranju Das were returning to the village that he had joined them somewhere along the way but had still not committed rape on her. It is true that in her statement in court she has attributed rape to Abbas Ahmad Chaudhary as well, but in the light of the aforesaid contradictions some doubt is created with regard to his involvement. Some corroboration of rape could have been found if Abbas Ahmad Chaudhary too had been apprehended and taken to the police station by P.W.5-Ranjit Dutta the Constable. The Constable, however, made a statement which was corrobrated by the Investigating Officer that only two of the appellants Ranju Das and Md. Mizalul Haq along with the prosecutrix had been brought to the police station as Abbas Ahmad Chaudhary had run away while en route to the police station. Resultantly, an inference can be rightly drawn that Abbas Ahmad Choudhary was perhaps not in the car when the complainant and two of the appellants had been apprehended by Constable Ranjit Dutta. We are, therefore, of the opinion that the involvement of Abbas Ahmad Choudhary is doubtful. We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primar consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there CRA No.536-SB of 2002 -7- can be no presumption that a prosecutrix would always tell the entire story truthfully." 20. In view of the discussions made above, the appeal in hand is allowed and the judgment dated 5.3.2010 and order dated 13.3.2010 passed by the learned Trial Court is set aside. The appellant is on bail. His bail bond shall stand discharged. 21. Since the main appeal is finally disposed of as such, the misc. applications pending, if any, shall also stand disposed of. ( JITENDRA CHAUHAN ) 30.07.2010 JUDGE atulsethi