Krishan Kumar Malik vs State Of Haryana

each and in default of payment of fine to further undergo R.I. for six months. Two other accused were convicted solely under Section 366 of the IPC, and being ladies, leniency was shown and they were awarded a sentence of three years R.I. and a fine of Rs.

Since both the appeals arose out of the same judgment, they were heard analogously and were disposed off by a common impugned judgment on 27.03.2009.

5. The present appeal has been filed by Krishan Kumar Malik only, one of the accused. We were given to understand that on account of paucity of funds and various other reasons, other convicted accused have not preferred any appeal. However on enquiries being made from the office, it came to our notice that both the Special Leave Petition as well as the Review Petition filed by one of the two female accused Hardevi were dismissed by this Court. Thus, in the present appeal, we are only required to consider whether there existed sufficient, cogent, valid, reliable and trustworthy evidence to hold the Appellant guilty of the aforesaid offences. To come to the said conclusion, it is necessary to deal with the bare facts of the prosecution.

7. On 23.06.1994, at about 1.00 p.m., prosecutirx went with Ritu, her Sister to Sector 13, Kurukshetra to meet her aunt Bimla, wife of Des Raj. While they were talking to each other at about 2.00 p.m., accused Crl. A. @S.L.P. (Crl.) No.8021 of 2009 6 Hardevi (Bua), her daughter Heena, Heena's husband Sonu and Heena's brother Dheeraj accompanied by six boys, whose names were not known to the prosecutrix, came to the house of her aunt, Bimla. Thereafter, they forcibly lifted prosecutrix and put her in a blue Maruti Van. Even though, lot of hue and cry was raised by her as well as by her aunt, her aunt's husband, neighbours and others but no one came forward to help her. She was then taken to a vacant Kothi near a bridge. After reaching the said Kothi, she was taken to a separate room, and was subjected to alleged forcible sexual intercourse by a hefty man who was being called as Kaka and by another man, who was gitta (short statured), having a beard. They committed the alleged crime after removing her clothes. There were Six more persons sitting in the said room, while two of them committed rape on her one after the other as stated above. Remaining six were also allegedly fondling with her body parts. Some of them inserted Crl. A. @S.L.P. (Crl.) No.8021 of 2009 7 finger in her anus and some of them gave tooth bite on her cheek. The family of her so called Bua and others were sitting in the adjoining room where the incident had taken place.

8. Thereafter, all of them took her forcibly in the same Maruti Van to Radaur to the in law's house of her Bua, Hardevi. All the six boys left her there. Thereafter, her Bua after cutting prosecutrix's hair gave her a beating with sandals. As soon as she got an opportunity, she escaped from the said house and boarded the bus by which she reached Kurukshetra. At Kurukshetra she met her mother Narayani and sister Sangeeta. She then narrated the whole incident to them after which they went to the Police Station to lodge an FIR. FIR was recorded at Police Station, Manesar on 24.06.1994 at 12.30 a.m. In the said FIR, the same story was mentioned by the prosecutrix stating that ten persons had participated in the commission of the said offence. But the name of the Appellant was not Crl. A. @S.L.P. (Crl.) No.8021 of 2009 8 mentioned and instead he was described as Gitta (short statured) with a beard.

9. On the strength of the said FIR, investigation machinery was set into motion and prosecutrix was sent for medical examination. On 24.06.1994, at 3.30 a.m. Prosecutrix was examined by P.W-6, Dr. Sushma Saini, Medical Officer, LNJP Hospital at Kurukshetra. Her medical report and evidence would be discussed at a later stage. Statement of prosecutrix under Section 164 of the Criminal Procedure Code, (hereinafter shall be referred to as 'Cr.PC') was recorded by Shri st Jagdeep Jain, RCS, Judicial Magistrate, 1 Class, Kurukshetra on 27.06.1994. Thereafter on 28.06.1994 her further statement was recorded under Section 161 of Cr.PC. A perusal of both the aforesaid statements clearly indicates that she has given the name of the present Appellant Krishan Kumar Malik as the perpetrator, describing him as short statured person.

22. During the course of investigation, the prosecutrix was taken to the area, to point out the Kothi, where she was said to have been subjected to rape, but she failed to identify the said kothi. It may be recalled that she was alleged to have been abducted during broad day light, thus her failure to identify the kothi, fully belies her case.

24. Needless to say the solitary evidence of the prosecutrix to bring home the charge of abduction and commission of rape by the Appellant does not inspire confidence and is not of sterling quality. In our opinion, it is neither prudent nor safe to hold the Appellant guilty of commission of the said offence. We hold so, on account of many other circumstances, which are against the prosecution, narrated hereinbelow:

This further goes to show that not only the Crl. A. @S.L.P. (Crl.) No.8021 of 2009 18 prosecutrix but even the I.Os failed to locate the site where offence of rape was said to have been committed.

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39. In fact, the procedure should have been otherwise.

41. It is pertinent to mention here that Appellant is a physically handicapped person to the extent of 55% as per Doctor's Report, and this fact is not controverted by the prosecution. This much of handicap of any person would be easily noticeable, which Appellant failed to mention at all. In fact, this would have been much better identification of the Appellant, which the prosecutrix did not mention at all.

42. On account of aforesaid shortcomings, irregularities and lacuna on the part of the prosecution, in our considered opinion, it will not be safe to convict the Appellant.

44. Had such a procedure been adopted by the prosecution, then it would have been a foolproof case for it and against the Appellant.

46. We have also gone through the orders of dismissal pased by this Court in Crl.M.P. No. 9646 on 15.06.2009 as also of the Review Petition dated 05.11.2009 filed by Smt. Hardevi. Admittedly, the said orders passed in the SLP and Review Petition by this Court did not assign any reasons for the dismissal, thus it would not be proper and safe for us to place reliance thereon.

47. Thus, looking to the matter from all angles, we are of the considered opinion that the conviction of the Appellant cannot be upheld.

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48.Thus, appeal is hereby allowed. Judgment and order of conviction as recorded by the trial court and confirmed by learned Single Judge of the High Court qua the appellant are hereby set aside and quashed.

The Appellant is acquitted of all the charges.

49. He be set at liberty forthwith if not required in any other criminal case.