Crl. Appeal No. 788 SB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No. 788 SB of 2000 Date of decision: 1.12.2000 Rajinder Kumar ..Appellant Versus State of Haryana ..Respondent CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN. Present: Mr. J.S. Bedi, Advocate as amicus curiae for the appellant. Mr. Pradeep Virk, DAG, Haryana. **** JITENDRA CHAUHAN, J. 1. Raju, the appellant has preferred this appeal against the judgment/order of conviction and sentence dated 31.5.2000/01.06.2000, under Sections 363, 366, 376 and 506 IPC by the learned Additional Sessions Judge, Karnal sentenced him as under:- 363IPC Three years and to pay fine of Rs. 500/- or in default R.I. For three months. 366IPC Five years and to pay fine of Rs. 1000/- or in default R.I. For six months. 506IPC R.I. For one year. 376 IPC Seven years and to pay fine of Rs. 1500/- or in default R.I. For one year. 2. This case was registered on the statement made by the complainant, Phool Chand, PW10, father of the prosecutrix, who stated that he has four daughters and one son. His elder daughter is married at Patiala, younger to her is married at Tohana. His son Yash Pal is younger to her and next to him is prosecutrix @ Rinku, aged 15½ years, is youngest among daughters. On 27.7.1997 he and his wife had gone in Jagrata. The prosecutrix, his other younger daughter Pooja, PW8, and his son Yashpal were present at the house. When they came back in the morning at about Crl. Appeal No. 788 SB of 2000 2 6/7 a.m. from Jagran, his son Yash Pal told them that the prosecutrix was not present in the house since 4.A.M. He also told him that Rajinder Kumar @ Pappi son of Ram Sarup Caste Balmiki R/o I.T.C. Centre, Nilokheri was seen wandering near their house in the mid-night at about 1.30 a.m. He searched the prosecutrix in nearby villages and in all the relations but no clue was found. He gave information in writing to the police as well also in this respect. After he was fully confident that abovesaid Rajinder Kumar @ Pappi had enticed away his daughter-prosecutrix aged about 15½ years with an intention to marry her. His daughter may kindly be recovered and action against abovesaid Rajinder Kumar be taken. 3. Phool Chand, PW10, father of the prosecutrix accosted ASI Wazir Singh, PW13, at bus stand Nilokheri, on 5.8.1997 and got his statement recorded, on the basis of this statement FIR Ex. PR/2 was registered. The special report reached Judicial Magistrate, Karnal on the same day at 2.10 PM. 4. The prosecutrix was recovered from Bus stand Nilokheri on 10.8.1997 by ASI Wazir Singh PW13. He produced the prosecutrix before Shri Mewa Singh, PW9, Judicial Magistrate, First Class, Karnal and made a request Ex.PQ/2, to record the statement of prosecutrix under Section 164 Cr.PC. The Learned Magistrate recorded the statement Ex.PQ of the prosecutrix on the same day at 2.11 PM. 5. On completion of investigation the challan against the accused was presented by Sub Inspector Ashok Kumar, PW1 on 25.10.1997. The Leanred Judicial Magistrate committed the case to the Court of Session for trial. 6. Charge under Sections 363/366/506/34 IPC was framed against Crl. Appeal No. 788 SB of 2000 3 Rajinder Kumar and Raju whereas charge under Section 376 IPC was framed against Rajinder Kumar. Further a charge under Section 376 (2) (g) IPC was framed against Rajesh and Kallu @ Ajay. All the accused pleaded not guilty and claimed trial. 7. In order to prove its case the prosecution examined the prosecutrix as PW7, her sister Ms. Pooja (she was declared hostile) as PW8, and her father Phool Chand PW10. Shri Mewa Singh, Judicial Magistrate, Ist Class, Karnal who recorded statement under Section 164 Cr.PC on 10.8.1997 was examined as PW9. Dr. Ravinder Kaul PW3 proved medical examination of the prosecutrix. 8. Dr. Vinod Kumar, PW2, conducted medical examination upon the accused Rajinder Kumar, Rajesh @ Hau and Kalu and Raju. Constable Prem Kumar, draftsman PW4, prepared the scaled plan Ex.PK. Head Constable Sat Parkash, PW5 Constable Hakam Singh PW6 and Constable Sube Singh PW11 tendered their respective affidavits Ex. PL, PM and Ex. PS respectively. ASI Baljit Singh PW12 got conducted the medical examination of Raju vide request Ex.PG. ASI Wazir Singh PW13 got conducted the medical examination of the prosecutrix the MLR of which is Ex. PJ. This witness also admitted the recording of DDR entry Ex. DA on 27.7.1997 on the statement of Phool Chand father of the prosecutrix. Baljit Singh, PW14, did not support the case of the prosecution. In order to prove the age of the prosecutrix copy of certificate Ex. PV was brought on record. 9. In his statement under Section 313 Cr.PC Raju appellant denied the incriminating evidence appearing against him. He brought on record DDR entry Ex. DA and Ex. DC affidavit of the prosecutrix. Crl. Appeal No. 788 SB of 2000 4 10. The present appeal was admitted by this Court on 26.3.2001. 11. Learned counsel for the appellant submits that there is inordinate and unexplained delay in lodging the FIR. The occurrence took place on 27.7.1997, the DDR was lodged by the complainant on 29.7.1997 and the FIR was registered on 5.8.1997. The learned counsel for the appellants further submits that delay has been used to twist the facts so as to fit in the case of the prosecution. There is no explanation for the delay in lodging FIR. 12. Learned counsel for the appellant has further submitted that in the statement under Section 164 Cr.PC, the prosecutrix did not name the appellant, the person, who committed rape upon her. He submits in fact the allegations are against Rajesh, Kalu and Pawan. 13. From the reading of the statement of the prosecutrix, it is made out that prosecutrix was a consenting party, who accompanied the appellant with consent and free will. The mother of the prosecutrix who could be the best witness regarding the age of the prosecutrix has not been examined and had been withheld by the prosecution intentionally. No ossification test was conducted. 14. On the other hand the learned counsel for the States submits that the prosecution has fully proved its case against the accused-appellant. The statement of prosecutrix, PW7, is fully corroborated by Phool Chand father PW10. There is statement under Section 164 Cr.PC dated 10.8.1997 recorded by Judicial Magistrate, Ist Class. 15. I have heard learned counsel for the parties and have carefully gone through the record. 16. The occurrence in the instant case took place on 27.7.1997. The Crl. Appeal No. 788 SB of 2000 5 DDR Ex.PA was lodged by the complainant, father of the prosecutrix Phul Chand PW10 on 29.7.1997. Even as per the FIR the version remain the same that @ Pappi S/o Ram Saroop enticed his daughter. Therefore, the name of the appellant has not come either in the DDR or in the FIR. It appears to have been introduced subsequently. As per deposition of the prosecutrix two boys out of whom one was Raju came there while she was sleeping in the room of her house with her sister. She has simply stated that the appellant, enticed her to get her married in a good family. Moreover, it remains mystery as to how the accused could have access to the room of the prosecutrix as there is no allegation against the appellant that he broke open the door trespassed into the house of the appellant. In the absence of the same the case of the prosecution becomes doubtful. 17. Moreover, the prosecutrix had been going through one place to another place by using public transport. She came across a number of poeple at Bus Stands and she stayed with his sister's home at Delhi. There is no evidence that she had at any point of time raised any alarm or shared her being kidnapping by the appellant. There is nothing on record to suggest that she made any effort to escape from the custody of the appellant. Therefore, it appears that the prosecutrix left the house after deliberation with accused Rajinder Kumar alias Pappi. 18. Even as per the statement of prosecutrix under Section 164 Cr.PC Ex. PQ the allegation of rape were attributed to Rajesh, Kalu and Pawan. She has specifically mentioned in the statement that Rajinder Kumar has left her at bus stand Gurgaon and never returned. In the meanwhile she met three other persons who committed rape upon her. 19. From the statement of prosecutrix it is proved that the prosecutrix Crl. Appeal No. 788 SB of 2000 6 left the house voluntarily, she did not raise any alarm or noise, did not inform other members of the family and left the house at night. She had been going from one place to another by bus. Thousands of people were available at various bus stand and she did not raise any alarm. Generally the police forces are available at bus stands but she did not try to leave the company of the alleged accused. So it is clear that she was voluntarily going from one place to another. 20. The prosecutrix was recovered on 10.8.1997. She made a statement to police u/s 161 Cr.P.C, on the very same day, which is marked as Ex.PN, where for the first time the accused appellant Raju was stated to have accompanied another boy, who enticed her to Gurgaon bus stand, where she was deserted by both of them. She has not alleged that the accused appellant had committed rape upon her. Rather she named three other persons who met her and took her to a room, consumed alcohol and raped her one after another. Out of these three, two persons were Kallu and Kumar @ Mau. 21. The prosecutrix has totally changed her version which is inconsistent with DDR, FIR and statement under Section 161 Cr.P.C. In her statement under Section 164 Cr.P.C. she stated that Raju and another person enticed her out of her house on 27.7.1997 and the name of second person is not known to her which clearly seems to be on afterthought only for the reason to rope Raju. Further for the first time in court she alleged that Raju and Pawan (P.O.) had committed rape upon her. 22. It appears that the sudden change in version of the prosecutrix is most probably due to the treatment she was forced to face at her own house. As per her statements under Sec. 164 Cr.PC after she was raped by three Crl. Appeal No. 788 SB of 2000 7 persons she met Raj Kumar. As per the affidavit Ex.DC which is produced in defence, signed and sworn by prosecutrix she has stated that she is above 18 years of age. Her mother had a bad moral character and her mother had forced her two elder sister to get married to older persons. Her mother had affair with a police person named Dharampal. Her mother had illegally supplied her elder sister to this Dharampal. Her mother also supplies girls to police people for money and for greed of money her mother wanted to sell her to Dharampal who at once even tried to molest her, therefore, for her security she had ran away from her house and straight away came to Delhi where she met one Raj Kumar, who took care of her. 23. Besides this horrifying state of mind through which the prosecutrix was going, she had to face the wrath of her father's bad character which is evident from Ex. DB which is an affidavit filed by Phool Chand, PW-10, (father of prosecutrix) where he states that her daughter is about the age of 18 years and he has verified that in the present case i.e. FIR No. 528 u/s 363, 366, 376, 506, 34 IPC, the names of Kallu @ Naresh and Rajesh @ Hau have been wrongly mentioned by her daughter and his daughter does not even know the above named persons. This attitude of the father of prosecutrix is not expected out of a person whose daughter has been raped. 24. The above stated facts clearly shows that the prosecutrix had eloped with Rajender, and even if the allegation by the prosecution of Raju accompanying her is taken to be a gospel truth still no offence u/s 363, 366 IPC is made out because the girl was about 18 years and had ran way from her house on her own. With Regard to Sec. 376 IPC, it is evident from her statement under Section 164 Cr.P.C. that Raju was not the person who raped Crl. Appeal No. 788 SB of 2000 8 her. 25. Another point which makes the case fishy is the testimony of the Prem Kumar, PW4, who is draftsman and has said to have prepared the site plan at the pointing out of prosecutrix. He has deposed that he has seen the site plan. However, no name of the owner or any home number has been mentioned, which shows that the site plan was prepared at the instructions of the I.O. only, not by actually visiting the site. 26. Testimony of the Miss Pooja, PW8, sister of the prosecutrix where she has shown herself to be 15 years old and has deposed that she is the youngest means that prosecutrix being an elder sister cannot be less than 16 years of age. 26. Another important fact which the trial Court over looked was the deposition of Dr. Ravinder Kaul, PW3, who examined the prosecutrix. He specifically says that there was history of earlier intercourse as told by patient and in his cross he says that as per his examination of prosecutrix the possibility of the prosecutrix being habitual to sexual intercourse cannot be ruled out. The above statement coupled with the contents written in Ex.DC where she says that her mother tried to sell her to police people indicates towards the fact that accused had no role to play in the whole occurrence and was made a scape goat. 27. There are other discrepancies in the statement of prosecutrix, PW7, which totally demolishes the case of prosecution as in her cross she states that she was alone in the house of Raj Kumar in Delhi where as in her examination she had stated that she stayed with Raj Kumar's sister in Delhi. Not only this she also admits that she did want to come back to her house. The most glaring fact is that in her cross examination she states that it is Crl. Appeal No. 788 SB of 2000 9 incorrect that she was allured by Raju with the promise of money and marriage in a good family. So, with this statement of prosecutrix the whole prosecution case falls to ground. 28. For the reasons recorded above I am of the view that the prosecution has miserably failed to bring whom guilt of accused. The present accused-appellant is acquitted of the charge framed against him by allowing this appeal. His judgment of conviction and sentence is hereby set aside. (JITENDRA CHAUHAN) 1.12.2010 JUDGE Poonam (II) Whether referred to reporter =YES