Criminal Revision No.1532 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGRH Criminal Revision No.1532 of 2004 Date of decision: 02.02.2010 Asha Devi ..............Petitioner Versus Girraj Singh ASI ................Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Shri Arvind Kashyap, Advocate, for the petitioner None for the respondent HARBANS LAL,J. This revision is directed against the judgment dated 21.4.2004 passed by the court of learned Additional Sessions Judge, Faridabad whereby he acquitted the accused Girraj Singh of the charged offences. The facts in brief are that on 14.5.2003 Asha Devi wife of Bhim Singh resident of Shyam Nagar, Palwal lodged a complaint with Sub Divisional Magistrate Palwal containing the allegations that she had lodged complaint in Police Station City Palwal against Bimla and others, who has given beatings to her daughter-in-law Rajwati. On the said day, Girraj A.S.I. accused came to her and asked her to accompany him to Kosi on the pretext that Bimla and others were presently residing there. She went with him to the said place, where he took her to a Dharamshala and committed sexual intercourse with her. The Sub Divisional Judicial Magistrate marked Criminal Revision No.1532 of 2004 2 this complaint to the Deputy Superintendent of Police, who entrusted the same to S.I. Krishan Kumar, who registered the case under Sections 363/366/376 I.P.C. In due course, the accused was arrested. After completion of investigation the charge-sheet was laid in the court of learned Ilaqa Magistrate, who committed the case to court of Sessions for trial of the accused. On commitment, the accused was charged under Sections 366 and 376(a &b) of the Indian Penal Code to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined Rakesh Kumar Ahlmad PW-1, Anoj Kumar PW-2, Rattan Singh Constable PW-3, Savita Constable PW-4, Dr. Anju Verma PW-5, Shri Devinder Singh Judicial Magistrate PW-6, Himmat Singh HC PW-7, ASI Ramesh Chand PW-8, Narinder PW-9, Vishnu Dutt Constable PW-10, Tapraj HC PW-11, Prosecutrix Asha Devi PW-12, Krishan Kumar PW-13 and closed its evidence. When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well false implication. He has come up with the following plea:- “ I am innocent. I have been falsely implicated in this case because I was posted in P.S. City, Palwal and the complainant was having criminal case in that city and she wanted to pressurize me to show favour for her and I refused to oblige her. Therefore, I have been implicated in the present case. Otherwise also I have got amputated my right leg and I am Criminal Revision No.1532 of 2004 3 using artificial limb in my right leg, so there was no occasion for me to commit rape on the complainant as alleged.” In his defence, he examined Dr. K.D.Soni DW-1. He closed his defence evidence by tendering certified copy of the report under Section 173 Cr.P.C. of F.I.R. No.620/03 Police Station City Palwal as Ex.D-3. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court acquitted the accused as noticed at the outset. Feeling aggrieved therewith, the prosecutrix Asha Devi has preferred this revision. This matter was displayed on the net number of times, nevertheless, none has come forward to argue on behalf of the respondent- accused. However, I have heard the learned counsel for the petitioner, besides perusing the record with due care and circumspection. The learned counsel for the petitioner eloquently urged that there was no logic and justification for taking the prosecutrix to Dharamshala/hotel because the accused Girraj had come for looking Bimla who has given beatings to Rajwati daughter-in-law of the prosecutrix Asha Devi. All this was done with malafide and bad intention and for committing rape on the prosecutrix. A glance through the medico legal examination of the prosecutrix would reveal that there were sperms on her petticoat. In fact she had raised hue and cry against the act committed by the accused, but none had come there for help for the reason that the staffers of the hotel/Dharamshala did not want to incur the displeasure of the accused being an Assistant Sub Inspector. Furthermore, the accused had also threatened the prosecutrix to kill and injure her if she raised alarm. It is Criminal Revision No.1532 of 2004 4 further submitted that the prosecutrix did not resist forcible rape on her with the fear that the accused would cause serious injury to her. The accused after having committed rape on the prosecutrix left her all alone. She was not taken back to Palwal. Had the rape been committed with her consent, in all probabilities, the prosecutrix would have been brought back to Palwal by the accused. In these premises, the trial Court was not justified in acquitting the accused. I have given a deep and thoughtful consideration to these submissions. The statement of the prosecutrix Asha Devi PW-12 reads as under:- “ I was having dispute with Rajwati, again said my daughter-in- law Rajwati was having dispute with Bimla and I had lodged the complaint against Bimla before City Palwal Police Station. On 14.5.2003 Girraj, ASI accused present in the court came into my house and he has told that he has gone to the house of Bimla and their house was locked and the accused Bimla and others are living in Kosi. He has told me that you should accompany me to bring the accused from Kosi and he has induced me to go to Kosi to bring the accused and he has taken me to in a Kosi Dharamshala and the accused had done a sexual intercourse with me against my consent and he has left me there and came back to Palwal and thereafter, I came back to Palwal and gave an application to the SDM, against Girraj ASI.” When the accused took her to the Dharamshala at Kosi, if she Criminal Revision No.1532 of 2004 5 was not a consenting party she during the common course of her conduct would have posed a question to the accused as to for what purpose, she was being taken inside the Dharamshala. It is not her case that the accused had represented to her that Bimla who was to be arrested was residing in Dharamshala. It is in her cross-examination that “ I am 4 or 5 class pass. I can sign. I am facing four cases of P.S. City, Palwal.” It is in the cross- examination of Krishan Kumar PW-13 that “ on 14.5.2003 (referring to the date of the occurrence) neither Rajwati, nor Asha(referring to the prosecutrix) gave any complaint to me against Bimla etc. It is also correct that no investigation was marked to ASI Girraj on 14.5.2003. It is correct that Girraj had got amputation in his leg.” This evidence can be well construed to mean that any investigation was not marked to the accused on the said date. If it is so, where was the occasion for the prosecutrix to accompany the accused to Kosi. It is in the further cross-examination of this Sub Inspector that “it is correct that there is Police Post nearby hotel which is visible from the hotel where the room was booked. xx xx xx When I reached Royal place Hotel to complete the investigation, I had investigated the persons present in the hotel. They had told me that Asha (referring to the prosecutrix) used to come many times and on 14.5.2003 she had also come present with the accused and I had booked the room on the asking of Asha and both of them arrived at our hotel at about 2.10 p.m. and left the hotel jointly at about 3 p.m. and during their stay at our hotel there was no complaint whatsoever within the two and both of them happily visited our hotel in a very good mood and left the same in the same fashion. I do not know who is husband of Asha. Sometimes she tells that Mange Criminal Revision No.1532 of 2004 6 Ram is my husband sometimes she tells that Bhim is my husband. xx xx xx xx It is correct that Asha is a lady of ill repute and during my tenure three cases were registered against her. When I went to Kosi Police Station then I enquired from the Police Post that this lady Asha used to come to this place. They told me that Asha is a lady of bad character and she is engaged in immoral trafficking.” One thing is clear from this evidence that the prosecutrix is locked in litigation. As per the above reproduced evidence, she is engaged in immoral trafficking. It is in her cross-examination that “I have not informed any neighbour regarding my visit to Kosi with ASI Girraj. I have not locked my house. I have bolted my house from outside.” It is beyond comprehension as to what was the hurry for her to accompany the accused to go to Kosi. Startlingly enough that even she did not take care to lock her house. This undue haste shown by her gives an inkling that she had gone for consensual intercourse. It is in her further cross-examination that ASI (referring to the accused) was having three wheeler and I had accompanied with Girraj to P.S. City, Palwal. xx xx xx we have boarded the bus at about 1 p.m. There were 25 passengers in the bus. xx xxx xxx We alighted from the bus at Kosi crossing. xx xx xx There is no police post near the said place. The place of occurrence was Dharamshala and not a hotel. In my presence, entry regarding booking of room was got incorporated in the book register and he(referring to the accused) has signed in my presence. There were two persons at that time. I raised alarm at the spot, however, I was threatened by Girraj for my life, if I raised any voice.” According to Krishan Kumar SI (sic) the room in which the occurrence took place is in Royal Place Hotel whereas according to the Criminal Revision No.1532 of 2004 7 prosecutrix, it was a Dharamshala. On combined reading of evidence tendered by the prosecutrix as well as the said Sub Inspector, it transpires that the room was got booked. If the prosecutrix was not a consenting party, she in all eventualities would have refused to enter such room with the accused. She would have asked the accused as to for what purpose the room is being got booked when they have come to arrest the accused Bimla. A woman of repute or a prudent woman would have not couraged to accompany an Assistant Sub Inspector of Police simply for the purpose of getting Bimla arrested. It is in her evidence that “my husband is working with HVPNL and he was posted in Alawalpur village and he used to visit our house once or twice in a week. My son is also residing with me, but he leaves the house at about 7 a.m. and comes at about 10. p.m. Again said my son is a labourer.” If at all she was over anxious to get Bimla arrested, she would have asked her son to accompany the accused. Furthermore, there is nothing on the record to show that Bimla had committed any heinous offence and there was apprehension that she will abscond. It is manifestly clear from her above reproduced cross-examination that two persons were present at the time when room was got booked. If the accused had put her under any sort of fear she could have brought the same to the notice of the persons whosoever were present there. It is also in her cross-examination that “ I knew this fact that Girraj was lame person. However, I did not know whether his leg has been amputated. I did not notice any weapon on him. xx xx xx During that period none from the hotel staff entered the room. In the room, I had noticed his amputated leg.” Dr. K.D.Soni DW-1 stated that on 21.3.96 Girraj(referring to the accused) was admitted with mutilating crush Criminal Revision No.1532 of 2004 8 injuries right leg after being run over by truck. While in the hospital, he underwent below knee amputation right leg. This evidence leaves no room for doubt that the accused was an amputee. To crown it all, he was not carrying any fire arm weapon with him as emerges out of the above reproduced cross-examination of the prosecutrix. If it was so, had the prosecutrix been not a consenting party, she would have offered adequate resistance if she was forcibly subjected to sexual intercourse. It is in the evidence of Narinder PW-9 that “I am co-owner of Royal Place Guest House situated at G.T. Road Kosi Kalan. On 14.5.2003, Girraj(referring to the accused) stayed in our Guest House and his entry was incorporated in the customer register vide serial number 306 at page 37 and as per record Girraj Singh came in the Guest House at 2.10 p.m. and left the Guest House at 3 p.m. It is correct that the Hotel is situated at a distance of 150 feet from the Guest House. Room No. 204 is situated on the first floor. Police Post is clearly visible from the room No. 204. I was present in the Guest House on that day. The lady who was accompanying Girraj Singh never raised any sort of complaint or human cry while entering our hotel and while leaving the hotel. Tea, water etc. was also supplied to the occupant of room No.204 during the stay in our hotel. Both the occupants were happy at the time of leaving the hotel.” Had the prosecutrix been forced to sexual intercourse she soon after coming out of the room would have reported the matter to the aforesaid police post which is according to the above reproduced evidence is situated at a walking distance from the hotel. It is in the evidence of Dr. Anju Verma PW-5 who had medico legally examined the prosecutrix that “there is no injury seen all over the body. There was no Criminal Revision No.1532 of 2004 9 bleeding, no discharge seen. Three to four fingers inserted easily. It clearly indicates that she was habitual to sexual intercourse. Under the stress of cross-examination this Doctor has also stated that three-four fingers signifies that the complainant Asha Devi was habitual of sexual intercourse. The upshot of the above discussion is that the prosecutrix who was 36 years of age was a consenting party to the sexual intercourse. Sequelly, no interference is warranted in the judgment recorded by the learned trial Court. As such this revision petition is dismissed. (HARBANS LAL) JUDGE February 2, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No