Criminal Appeal No.2051-SB of 2004 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Appeal No.2051-SB of 2004 Date of Decision: 12.10.2011 Mukesh ... Appellant Versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Sanjeev Sheokand, Advocate for the appellant. Mr. Sandeep S. Mann, Senior Deputy Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) Mukesh son of Harnam has directed the present appeal against the judgment of his conviction dated 6.8.2004 and order of sentence dated 10.8.2004, passed by the Court of Additional Sessions Judge, Fast Track Court, Sonepat. The appellant was held guilty for the offence under Sections 366 and 376 IPC. He was sentenced to undergo rigorous imprisonment for a period of seven years for the offence under Section 376 IPC. He was also sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 50,000, for the offence under Section 366 IPC, in default whereof to further undergo rigorous imprisonment for a period of one year. Both the Criminal Appeal No.2051-SB of 2004 2 sentences were ordered to run concurrently. Learned counsel for the State has submitted that the appellant has already completed his sentence. However, learned counsel for the appellant has submitted that in the present case, even though the appellant has undergone his entire sentence, his conviction cannot be sustained in the eyes of law and therefore, he will argue the case on merits. In view of the prayer made by learned counsel for the appellant, I have perused the record and heard learned counsel for the parties. Before the contentions raised by learned counsel for the parties are noticed, it will be necessary to give brief gist of the facts of the case. Vinod son of Ram Kishan, not examined, had submitted a written complaint Ex.PI to PW.12 Dalbir Singh, Assistant Sub Inspector, when he was present at Kakroi Chowk, Sonepat, on patrol duty. On the application Ex.PI, an endorsement Ex.PK was given and the same was sent to the Police Station City, Sonepat, for registration of the case. On the basis thereof, FIR Ex.PJ was registered on 8.4.2003 at Police Station City, Sonepat, under Sections 363 and 366 IPC. The application, so submitted by complainant Vinod, who was not examined by the prosecution, when translated into English, reads as under:- “To the Station House Officer, Police Post Gohana Adda, Sonepat. Sir, it is respectfully submitted that I, Vinod son of Ram Kishan, Caste Balmiki, am a resident of Subhash Nagar, Sonepat and is employed as a Sweeper in the Observation Home for Juvenile. On 25.3.2003, my wife, (the Criminal Appeal No.2051-SB of 2004 3 prosecutrix, name withheld as per the directions of Hon'ble the Apex Court) along with the child named Ankit, aged about 1½ years, had gone to the doctor for taking medicine. On return at about 3.00 PM, I found that my wife and the child were not present in the home. I inquired in the neighbourhood but could not get any clue. In front of my house, there was a house of Harnam Singh, caste Balmiki. We leant that Mukesh son of Harnam Singh, caste Balmiki, resident of Subhash Nagar, Sonepat, was also missing. I have a suspicion that my wife along with the child Ankit, aged about 1½ years, has been allured by Mukesh. Till today, I have been searching for my wife and the child but unable to find any clue. Therefore, it is requested that action be taken against Mukesh son of Harnam Singh, caste Balmiki, resident of Subhash Nagar, Sonepat and my wife along with the child be freed from his clutches...” It will be pertinent to notice that in the application Ex.PI, it has been specifically stated that the prosecutrix along with the child was missing since 25.3.2003, whereas the complaint was made only on 8.4.2003 i.e., after the period of 13 days of the alleged occurrence. Another factor to be noticed in the complaint Ex.PI is that a suspicion was raised by the complainant that his wife had been allured by the accused/appellant. Criminal Appeal No.2051-SB of 2004 4 The above said complaint was investigated and a report under Section 173 Cr.P.C. was submitted. The case was committed to the Court of Sessions and was entrusted for trial to the Court of Additional Sessions Judge, Fast Track Court, Sonepat. The trial Court charged the appellant for the offence under Sections 366 and 376 IPC. The first charge under Section 366 stated that on 25.3.2003, the accused had kidnapped the prosecutrix with an intent that she may be forced to commit intercourse. The second charge under Section 376 IPC stated that on 25.3.2003, the accused had committed rape upon the prosecutrix. The accused pleaded not guilty and claimed trial. The prosecution commenced its evidence and examined Dr.A.S. Ahlawat, Medical Officer, General Hospital, Sonepat, as PW.1. He stated that he had medicolegally examined appellant-Mukesh and opined that there was nothing to suggest that he was incapable of doing sexual intercourse. PW.2 Bijender Singh, Constable, had carried the special report of the case and handed over the same to the Illaqa Magistrate, Superintendent of Police and Deputy Superintendent of Police without any delay. PW.3 Dharmender deposed that on 25.3.2003 he was present at Mehlana Road. He had seen the accused along with the prosecutrix and her son. When he came home, his brother Vinod asked about the prosecutrix and he told him that he had seen her along with the accused. This witness has further stated as under:- “...The accused and the prosecutrix were found on Criminal Appeal No.2051-SB of 2004 5 8.4.2003 when the case was registered...” In cross-examination, this witness stated that he had seen the accused near the Police Post Mehlana Road, Sonepat. He had not given any information to the police because he thought that the accused and the prosecutrix were going for some work. The prosecutrix appeared as PW.4 and stated that he knew the accused. He was residing in front of her matrimonial home. On 25.3.2003, she along with her son had gone to purchase the medicine at Mittal Hospital, Sonepat. The accused met her on the way. He asked her to accompany him, snatched the child from her and placed a knife on the neck of her child. Thereafter, he threatened the prosecutrix that he would kill the child in case she refused to accompany him. The accused took the prosecutrix to Haridwar. His father was also with him. Thereafter, the accused took her to Delhi and her child was mercilessly beaten by him. The accused had committed rape upon her and kept her till 1.5.2003 in village Brahmnan Wali Garhi. He had kept the child with his father. On 2.5.2003, when they came out of the Kotha, they were seen by her husband and the police. On 2.5.2003, her medicolegal examination was conducted in General Hospital, Sonepat. This Court could have easily relied upon the statement of the prosecutrix, made in the Court that it was due to the threat caused to the life of the child that she succumbed and permitted the accused to commit rape, had she not been confronted with her previous statement recorded by the police Ex.DA. The entire reading of the statement Ex.DA absolve the accused of the offence. However, the Court can only use that portion of the statement Ex.DA to which the prosecutrix was confronted with. Criminal Appeal No.2051-SB of 2004 6 Therefore, it will be necessary to notice the improvements made by the prosecutrix in her testimony, given in the Court from her previous version which is recorded in Ex.DA, by reproducing the following portion of her deposition:- “...I had told the police that the accused had waylaid me when I was going to take the medicines (Confronted with Ex.DA wherein it is not so recorded). I had also told the police that the accused gave a threat and snatched the child from my arm (Confronted with Ex.DA wherein it is not so recorded). I had also told to the police that a knife was placed on the neck of my child (Confronted with Ex.DA wherein it is not so recorded)...” The prosecutrix has further stated that it was not known to her that the accused used to leave in the morning for labour work and return in the evening. She has further stated that she had not complained to any passenger in the bus on the way to Haridwar due to fear of life of her child. What is material to be noticed is the following portion of her cross-examination:- “...It is correct that I had told the accused that the accused had lured me that he (accused) would keep me in a better condition than my husband. (This fact is recorded in Ex.DA)...” From the above said portion of the cross-examination of the prosecutrix and confrontation with her statement made in Ex.DA, it was sufficient to infer that she was the consenting party and she herself had Criminal Appeal No.2051-SB of 2004 7 accompanied the accused from her village to Haridwar and then to Delhi. It cannot be ignored that the prosecutrix remained with the accused for about one month and seven days and they were only apprehended by the police. Another important feature of the case is discernible from the testimony of PW.5 Dr. Pushpa Punia, Medical Officer, who had medicolegally examined the prosecutrix. She stated that the prosecutrix was aged about 21 years. The prosecutrix herself had given her age in the Court as 22 years. Thus, on the day of occurrence, she was more than 18 years of age. Furthermore, PW.5 Dr. Pushpa Punia stated that there were no external or internal injuries on the body of the prosecutrix. PW.9 Bijender, Constable, has stated that on 2.5.2003, he was present along with the Investigating Officer, when a secret information was received that the prosecutrix along with accused- Mukesh was wandering in the area of Sector 23, Sonepat and on the basis thereof, they were apprehended. PW.12 Dalbir Singh, Assistant Sub Inspector, has stated that he had recorded the statement of the prosecutrix. In his cross- examination, this witness has stated that statement of the prosecutrix was recorded when she was under no pressure and she voluntarily gave her statement. He has further stated that it came to his knowledge, during the course of investigation, that the accused and the prosecutrix were having friendly terms prior to the incident. He has further stated that when the statement of the prosecutrix was recorded, her minor son was with her. In view of the opinion formulated by the Investigating Officer Criminal Appeal No.2051-SB of 2004 8 and furthermore the portion of statement of the prosecutrix Ex.DA, with which she was confronted, makes it apparent that the story that the child was snatched and therefore, due to threat to the life of the child, the prosecutrix accompanied the accused to Haridwar, then to Delhi and then to the place wherefrom the accused was arrested, seems to be coined lateron. The admission made by the prosecutrix that the accused had allured her to perform marriage on the promise that he will keep her better than her husband and on that context she had accompanied him, looks probable, natural and convincing. Thus, taking totality of the circumstances into consideration, it can be safely held that the prosecutrix was the consenting party and she had herself left her matrimonial home with the accused. Hence, the present appeal is accepted and the appellant is acquitted of the charges. (Kanwaljit Singh Ahluwalia) Judge October 12, 2011 “DK”