Case: RAJESH Vs. STATE OF HARYANA

We also find from the perusal of the judgment of the High Court that the High Court has gone by the testimony of Krishan (PW 2) who had accompanied Dhan Singh and the police when the prosecutrix was secured from the Hisar bus stand. 9. What we find that the most crucial aspect pertaining to the involvement of the Appellant, which was argued by the defence and was very material to determine the guilt of the Appellant, has not been examined at all and is totally grossed over by the Courts below. The Appellant had pleaded that the prosecutrix in the first instance had implicated Om Prakash and Rajender insofar as the elopement of the prosecutrix is concerned and there were inherent contradictions in the statements of Krishan Kumar and other witnesses. These aspects are not considered and discussed by the Courts below. 10. We find much force in this argument of the learned Counsel for the Appellant who argued at length on the aforesaid lines. 11. In the first instance, it is not understood as to under what circumstances the prosecutrix was taken to the Judicial Magistrate for recording her statement Under Section 164 of the Code of Criminal Procedure when she had given a categorical statement on 6.11.2004, immediately after she was rescued, naming Om Prakash and Rajender. We find that in the second statement given before the Judicial Magistrate which was recorded on 8.11.2004 she has stated that she did not name Rajesh as he had threatened her with the dire consequences. This conduct of the prosecutrix is some what intriguing... as it leaves behind some lurking doubts which had not been clarified or explained. In the first instance it may be pointed out that if there was some threat given by Rajesh, how this threat vanished within two days when nothing had happened in between. Secondly, what was the reason to choose the names of Om Prakash and Rajender in place of Rajesh in the first report. Thirdly, as far as Rajender is concerned, his name is altogether missing in the second statement. Not only this she is conspicuously silent about Suresh. 12. In a matter like this it was most appropriate for the prosecution to have the investigation of the matter from both angles, namely, to see as to whether the real culprits are Om Prakash and Rajender or it is Rajesh. However, strangely as far as Om Prakash and Rajender are concerned, they were dropped from the investigation altogether. 13. We are constrained to remark that when the charge-sheet was filed before the concerned Additional Session Judge, he also did not notice the aforesaid anomalies. Had he been little vigilant, he would have ordered further investigation or summoned Om Prakash and Rajender and implicated them as well. Only then real truth would have surfaced. Insofar as charge of rape against Suresh is concerned, again for strange reasons, it is dropped altogether and not investigated at all. All these factors create serious doubts on the prosecution story. 14. That apart, the learned Counsel for the Appellant has taken us through the depositions of PW. 2 Krishan, PW. 8 ASI Tribhuwan, PW. 11-father of the prosecutrix Phool Singh, PW. 13 Indrawati-mother of the prosecutrix and PW. 17 Roshan Lal. The learned Counsel has pointed out various glaring contradictions in their statements which make the prosecution story unbelievable, even otherwise. 15. When we peruse the statement of PW. 2 Krishan Kumar, which was recorded on 22.5.2006, we find that he mentioned that when he reached bus stop Hisar, he saw the prosecutrix and Appellant Rajesh. However, in his cross-examination he admitted that in his earlier statement given to the police, he had stated that prosecutrix was in the company of Om Prakash and not Rajesh. Apart from this contradiction, another factor which needs to be highlighted is that even if prosecutrix was under some pressure from Rajesh, as far as this witness is concerned, there was no such pressure but in his very first statement to the police he had named Om Prakash and not Rajesh. 16. Likewise PW. 8-ASI Tribhuwan in his statement in the Court named Rajesh who was holding the hand of the prosecutrix and had allegedly fled away after seeing police party alongwith Krishan Kumar and Dhan Singh. However, even he in his cross-examination admitted that when his statement was recorded by the ASI Roshan Lal on 6.11.2004 immediately after the recovery of the girl, he did not mention that the person who was holding the hand of the prosecutrix was Rajesh. He has also stated that the first statement of prosecutrix was recorded in his presence which was marked as Ext. PB. He also admitted that this statement was read over to the prosecutrix and she put her signatures on the same and thereafter it was endorsed by the ASI. Though a Police Officer, the manner in which he answered some of the questions makes it clear that he was not truthful in giving the correct description of the events. He went to the extent of saying that he did not know that prosecutrix had disclosed the name of Rajesh or not. He even stated that he did not remember if ASI Roshan Lal himself scribed the statement Ext. DB or it was got scribed by some other official. When he was shown the statement Ext. DB and the endorsement of the ASI thereupon, he admitted that the said statement was recorded by himself. It is strange that when he had recorded the statement, though as per the directions of ASI (which he stated later), how he could say earlier that he did not know as to who had scribed the said statement. Even his statement is not found worthy of any credence. It would, however, be necessary to mention that at a later stage in his cross examination he admitted that when he reached the bus stand Hisar, along with Krishan Kumar, Krishan Kumar had identified Om Prakash with the prosecutrix.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. Insofar as charge Under Sections 363, 366 and 376 I.P.C. are concerned, a perusal of the judgment of the trial Court as well as the High Court would demonstrate that the concentration of the Courts below was on the age of the prosecutrix. It was established by credible evidence that she was less than 16 years of age. On that basis the Courts have given the finding that even if the sexual act was consensual, the offence of rape stood established. The Courts below have also, in that view, considered the medical evidence which confirmed commission of the act of rape. We also find from the perusal of the judgment of the High Court that the High Court has gone by the testimony of Krishan (PW 2) who had accompanied Dhan Singh and the police when the prosecutrix was secured from the Hisar bus stand.9. What we find that the most crucial aspect pertaining to the involvement of the Appellant, which was argued by the defence and was very material to determine the guilt of the Appellant, has not been examined at all and is totally grossed over by the Courts below.10. We find much force in this argument of the learned Counsel for the Appellant who argued at length on the aforesaid lines.11. In the first instance, it is not understood as to under what circumstances the prosecutrix was taken to the Judicial Magistrate for recording her statement Under Section 164 of the Code of Criminal Procedure when she had given a categorical statement on 6.11.2004, immediately after she was rescued, naming Om Prakash and Rajender. We find that in the second statement given before the Judicial Magistrate which was recorded on 8.11.2004 she has stated that she did not name Rajesh as he had threatened her with the dire consequences. This conduct of the prosecutrix is some what intriguing... as it leaves behind some lurking doubts which had not been clarified or explained. In the first instance it may be pointed out that if there was some threat given by Rajesh, how this threat vanished within two days when nothing had happened in between. Secondly, what was the reason to choose the names of Om Prakash and Rajender in place of Rajesh in the first report. Thirdly, as far as Rajender is concerned, his name is altogether missing in the second statement. Not only this she is conspicuously silent about Suresh.12. In a matter like this it was most appropriate for the prosecution to have the investigation of the matter from both angles, namely, to see as to whether the real culprits are Om Prakash and Rajender or it is Rajesh. However, strangely as far as Om Prakash and Rajender are concerned, they were dropped from the investigation altogether.13. We are constrained to remark that when the charge-sheet was filed before the concerned Additional Session Judge, he also did not notice the aforesaid anomalies. Had he been little vigilant, he would have ordered further investigation or summoned Om Prakash and Rajender and implicated them as well. Only then real truth would have surfaced. Insofar as charge of rape against Suresh is concerned, again for strange reasons, it is dropped altogether and not investigated at all. All these factors create serious doubts on the prosecution story.14. That apart, the learned Counsel for the Appellant has taken us through the depositions of PW. 2 Krishan, PW. 8 ASI Tribhuwan, PW. 11-father of the prosecutrix Phool Singh, PW. 13 Indrawati-mother of the prosecutrix and PW. 17 Roshan Lal. The learned Counsel has pointed out various glaring contradictions in their statements which make the prosecution story unbelievable, even otherwise.15. When we peruse the statement of PW. 2 Krishan Kumar, which was recorded on 22.5.2006, we find that he mentioned that when he reached bus stop Hisar, he saw the prosecutrix and Appellant Rajesh. However, in his cross-examination he admitted that in his earlier statement given to the police, he had stated that prosecutrix was in the company of Om Prakash and not Rajesh. Apart from this contradiction, another factor which needs to be highlighted is that even if prosecutrix was under some pressure from Rajesh, as far as this witness is concerned, there was no such pressure but in his very first statement to the police he had named Om Prakash and not Rajesh.16. Likewise PW. 8-ASI Tribhuwan in his statement in the Court named Rajesh who was holding the hand of the prosecutrix and had allegedly fled away after seeing police party alongwith Krishan Kumar and Dhan Singh. However, even he in his cross-examination admitted that when his statement was recorded by the ASI Roshan Lal on 6.11.2004 immediately after the recovery of the girl, he did not mention that the person who was holding the hand of the prosecutrix was Rajesh. He has also stated that the first statement of prosecutrix was recorded in his presence which was marked as Ext. PB. He also admitted that this statement was read over to the prosecutrix and she put her signatures on the same and thereafter it was endorsed by the ASI. Though a Police Officer, the manner in which he answered some of the questions makes it clear that he was not truthful in giving the correct description of the events. He went to the extent of saying that he did not know that prosecutrix had disclosed the name of Rajesh or not. He even stated that he did not remember if ASI Roshan Lal himself scribed the statement Ext. DB or it was got scribed by some other official. When he was shown the statement Ext. DB and the endorsement of the ASI thereupon, he admitted that the said statement was recorded by himself. It is strange that when he had recorded the statement, though as per the directions of ASI (which he stated later), how he could say earlier that he did not know as to who had scribed the said statement. Even his statement is not found worthy of any credence. It would, however, be necessary to mention that at a later stage in his cross examination he admitted that when he reached the bus stand Hisar, along with Krishan Kumar, Krishan Kumar had identified Om Prakash with the prosecutrix.