IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No.255-DB of 2004 Date of Decision:-12.05.2010 Sewa Ram ....Appellant. Versus State of Haryana ....Respondent. CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE JASWANT SINGH Present:- None for the Appellant. Sh. Sandeep Vermani, Additional Advocate General for the State of Haryana. JASWANT SINGH, J This appeal is directed against judgment and order dated 11/12.12.2003 passed by the learned Additional Sessions Judge, Jagadhari (Yamunanagar) whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for life for the offence under section 376 of the Indian Penal Code and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo rigorous imprisonment for two years; has also been convicted and sentenced to undergo rigorous imprisonment for a period of five years for the offence under section 366-A of Crl. Appeal No.255-DB of 2001 2 the Indian Penal Code. Both the substantive sentences have been ordered to run concurrently. 2. Prosecution was sent in motion on the statement (Ex.PD) of Smt. Sushma (PW-12), r/o # 1641, Tilak Nagar, Yamunanagar recorded by Shamsher Singh (PW-14) SI, Police Station, Farakpur, Kurukshetra on 3.8.2001 which reads as under:- “Stated that I am resident of the above address. My husband works as Kabari by roaming in the streets. That I have four children, out of which three are girls, and one is boy. That my third daughter Miss Aarti aged 8 years studies in Swami Anant Free Education Mandir, Krishna Nagar, Chandpur in 1st Standard. That Miss Aarti returned from school today at about 1.00 PM. That after taking meal, I sent my daughter to fetch kerosene oil from a shop situated in our Mohalla. When my daughter did not return for a considerable period, I sent my son Ankush aged 24 years in her search. He returned after about an hour along with my daughter. That my daughter was frightened. That I saw blood on the shirt and pent worn by my daughter. On suspicion, I enquired from my daughter who told that “one boy aged about 25/30 years wearing pent and shirt, having small beard, one finger of hand wrapped in dressing, took me on his cycle towards the fields of village Sasauli, and there he put off her pent and committed bad work with her. He gave me five rupees saying that nothing was to be Crl. Appeal No.255-DB of 2001 3 disclosed at home and after taking his cycle, he went away. I was coming back to my house, and then my brother Ankush met me” That I kept on waiting for my husband. That on arrival of my husband I was coming to the police Station. That in the way you met me. That I have got recorded my statement to you. Action as per law be taken against the accused. 3. On the basis of the statement (Ex.PD) recorded at 6.45 PM on on 3.8.2001 a formalized FIR (Ex.PE) for offence under Section 363, 376 of the Indian Penal Code was registered at 6.50 PM at P.S. Farakpur. The special report reached the Illaqa Magistrate at 11.30 PM the same night. SI Shamsher Singh got Aarti medico legally examined at civil hospital Jagadhari. Dr. Mamta Goyal (PW-1) found “freshly raptured hymen with bleeding present. In her opinion penetration had been done. SI Shamsher Singh (PW-14) then went to the house of the prosecutrix Aarti and recorded statement of her brother Ankush. On 10th of August 2001, at the instance of prosecutrix Aarti rough site map (Ex.PQ) of the place of occurrence was prepared and her statement was recorded. On 31.1.2002, the accused /appellant who was confined in the police lock up in another FIRNo.18 of 29.1.2002 under section 363, 376, 511 of IPC police station Farakpur and was interrogated and vide his disclosure statement Ex.PG he disclosed that 4/5 months prior he had taken a girl of aged 7/8 years on a cycle from Tilak Nagar to the fields of Sasauli and committed rape. After committing rape Crl. Appeal No.255-DB of 2001 4 he had left the girl in the way after giving her a note of Rs.5/-. Thereafter at the instance of the accused/appellant place of occurrence was identified vide memo Ex.PI. Vide Ex.PJ request was made to Illaqa Magistrate regarding identification parade of the accused, which was refused by the accused vide statement Ex.PK. Thereafter the accused was medically examined by Dr. Ashwani Bhatnagar (PW-13) at civil hospital Yamunagar on 31.1.2002 and it was opinied that there was nothing to suggest that the accused/appellant was unable to perform sexual intercourse. The accused also got recovered cycle from his house in pursuance of his disclosure statement which was taken into possession vide recovery memo Ex.PH. Report of CFSL (Ex.PN) was received and it conveyed that semen could not be detected on any of the exhibits. 4. Upon completion of investigation, accused was charged under sections 363, 366-A and 376 of the Indian Penal Code to which he pleaded not guilty and claimed trial. Prosecution to prove its case, examined 14 witnesses including the prosecutrix Aarti (PW-11) as well as complainant Smt. Sushma (PW-12) and led documentary evidence. Accused- appellant in his statement recorded under section 313 Cr.PC denied the incriminating allegations and pleaded his false implication. In defence he examined Rajinder Pal as DW-1 and Shree Ram as DW-2. 5. Learned trial court on appreciation of evidence adduced on record found that the prosecution has proved the Crl. Appeal No.255-DB of 2001 5 case against the accused-appellant beyond any reasonable doubt, and therefore, convicted and sentenced him as aforesaid. 6. After hearing the learned counsel for the State and going through the evidence on record we are of the considered opinion that the appeal deserves to be allowed as the prosecution has not been able to prove the identity of the accused/appellant as the one who is involved in the commission of the offence. Complainant Smt. Sushma (PW-12) has deposed in terms of the contents of the FIR lodged at her instance. She has deposed that on the fateful day she had sent her daughter to a shop to fetch kerosene oil. She had waited for her to return for a considerable period of time but she did not turn up. Then she sent her son Ankush to search for her, who brought her daughter back to the house. Thereupon she noticed blood on the pant she was wearing. Upon enquiry her daughter (Aarti) told that one person of 25/26 years of age took her on a bicycle on the pretext that he would get her kerosene oil on a shop lying open at some distance. In her cross examination she stated that the time when her daughter went out to fetch kerosene oil was around 1.00 PM. Prosecutrix (PW-11) in her cross examination has agreed that she told her mother that the person who had taken her on the bicycle was around 25 years. It is not in dispute that the age of the accused/appellant at the time of arrest and medical examination on 31.1.2002 is disclosed as 44 years. This difference in age , in our opinion, is a material contradiction which goes to the root of the prosecution case and thus raises serious doubts about the Crl. Appeal No.255-DB of 2001 6 prosecution case. Still further although the prosecutrix PW-11 after two years of the occurrence has identified the accused/appellant in court as the person who had taken her on the bicycle and committed rape. However, she in her cross examination has admitted that the accused/appellant was made to be identified by her in the police station. PW-11 has nowhere deposed that she knew or had ever seen the accused/appellant in the locality. Therefore, the identification of the accused in the court loses its evidentiary value and thereby further causing dent to the prosecution case. The recovery of the cycle in pursuance to the disclosure statement is also not of much significance in view of the other attending circumstances of the case. 7. Defence has examined Rajinder Pal (DW-1) who is employed as a Head Clerk in the Electric branch of workshop of Nothern Railways. He has deposed that accused/appellant Sewa Ram is employed as a crane driver in railway workshop and on 3rd of August 2001 he attended his duty at 8.52 AM. The hours of duty are 9.00 AM to 6.30 PM. He further deposed that the accused/appellant went for lunch on that day at 13.28 hours and returned back at 14.01 hours. This version is further corroborated by DW-2, who is employed as sectional engineer in the same workshop. DW-2 has also stated that on 3rd of August 2001 accused/appellant had proceeded for lunch at 13.28 hours and came back on duty at 14.01 hours. In view of this evidence adduced by defence it is highly improbable that in that Crl. Appeal No.255-DB of 2001 7 intervening half an hour the accused/appellant could have spotted the girl, taken her to the fields of village Sasauli, committed rape and dropped her back and then resumed duties. 8. In view of the aforesaid discussion we are of the view that the prosecution has not been able to prove the guilt of the accused/appellant for having committed the offence of rape and by extending the benefit of doubt, we set aside the impugned judgment and order dated 11/12.12.2003 and acquit him of the charges. (HEMANT GUPTA) (JASWANT SINGH) JUDGE JUDGE May 12, 2010 Vinay