Manoj Kumar And Anr vs State Of Haryana on 24 November, 2017

CRA-S-2117-SB-2012 -1-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

CRA-S-2117-SB-2012 (OM)
Date of Decision: November 24, 2017

Manoj Kumar and another

…Appellants

Versus

State of Haryana

…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Mr. Ashwani Bhardwaj, Advocate
or the appellants.

Ms. Gaganpreet Kaur, AAG Haryana.

********
JAISHREE THAKUR, J.

This is a criminal appeal filed against the judgment dated

20/23.04.2012 passed by the Additional Sessions Judge (Fast Track Court)

Narnaul, whereby, the appellants have been convicted and sentenced to

undergo rigorous imprisonment substantially for a period of 07 years and to

pay fine under Sections 363, 366-A, 376, 120-B of Indian Penal Code.

2. In brief, the facts of the case are that complainant-Chokhi Devi

by an application dated 30.08.2011 informed ASI Ramesh Chand that she

was having three sons and two daughters. On 29.08.2011, she and her

children went to sleep, after having taken a meal and when she woke up at

night around 2.00 p.m., she found that her daughter, aged 13 years, was not

available in the house. At that time itself, she brought this fact to the notice

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of her neighbourers and she along with them looked for her at the railway

station and at the bus stand. In the complaint, she mentioned that one Sanoj

son of Bhagtu with the help of his brother Manoj had enticed away her

daughter and Manoj would know the whereabout of her daughter and Sanoj.

It was further mentioned that her daughter had also taken away Rs.20,000/-

and gold ornaments. On the basis of said complaint, an FIR Ex.PB was

registered against the appellants Sanoj and Manoj. During the course of

investigation, appellant No.1-Manoj was arrested and on the basis of

disclosure statement suffered by him, the prosecutrix was recovered from

the custody of Sanoj from Village Sewapur Kamal. She was medically

examined and her statement under Section 164 Cr.P.C. was got recorded

from CJM Narnaul and based on the statement and conclusion of

investigation, both the appellants were sent by the police to stand for trial

for committing the offence under Sections 363, 366-A, 376, 120-B of Indian

Penal Code.

3. Finding a prima facie case under Sections 363, 366-A, 376,

120-B of Indian Penal Code, the appellants were charge-sheeted

accordingly, to which they pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution has examined as

many as 18 witnesses. LC Sunita appeared as PW1, SHO SI Partap Singh

appeared as PW2, ASI Lal Chand appeared as PW3, ASI Mahesh Kumar

appeared as PW4, ASI Ramesh Chand appeared as PW5, ASI Kapoor Singh

appeared as PW6, LC Savita appeared as PW7, ASI Virender Singh

appeared as PW8, Dr. Pradeep Yadav appeared as PW9, HC Jai Bhagwan

appeared as PW10, Chuki Devi appeared as PW11, Setha Ram appeared as

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PW12, Dr. Vandana Yadav appeared as PW13, prosecutrix appeared as

PW14, Hanuman appeared as PW15, Dr. Aggarwal appeared as PW16, Dr.

Chanderhass CJM, Narnaul appeared as PW17, ASI Babulal appeared as

PW18 and thereafter, the prosecution evidence was closed.

5. Statement of the appellants were recorded under Section 313

Cr.P.C. in which they stated that they are innocent and have been falsely

implicated in this case.

6. Based on the statement of the prosecutrix, her parents and

medical evidence on the record, the Additional Sessions Judge, Narnaul

convicted the appellants under Sections 363, 366-A, 376, 120-B of Indian

Penal Code and sentenced them; to undergo rigorous imprisonment for a

period of 04 years and to pay a fine of Rs.1000/- each under Section 363

IPC and in default of payment of fine, to undergo further imprisonment for a

period of three months; to undergo rigorous imprisonment for a period of 07

years and to pay fine of Rs.2000/- each under Section 366-A IPC and in

default of payment of fine, to undergo further imprisonment for a period of

four months; to undergo rigorous imprisonment for a period of 07 years and

to pay a fine of Rs.2000/- each under Section 376 IPC and in default of

payment of fine, to undergo further imprisonment for a period of four

months; to undergo rigorous imprisonment for a period of 02 years and to

pay a fine of Rs.1000/- each under Section 120-B IPC and in default of

payment of fine, to undergo further imprisonment for a period of three

months. It is this judgment that has been assailed in the instant appeal.

7. Custody certificates of the appellants were filed, which goes on

to show that both the appellants have been released from jail on 07.12.2016

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and 03.02.2017 respectively after completion of their sentence.

8. Learned counsel appearing on behalf of appellants at the very

outset submitted that he does not press the instant appeal qua appellant

No.2-Sanoj, however, while assailing the judgment qua appellant No.1-

Manoj, learned counsel argued that the prosecutrix had varied her statement

on several occasions. It is submitted that in her statement recorded under

Section 161 Cr.P.C. the prosecutrix has not levelled any allegation of rape

against appellant No.1-Manoj and it is only subsequent thereto that an

improvement has been made in her testimony, which would show that he

had been falsely implicated. It is also argued that till the initial statement

that has been recorded under Section 161 Cr.P.C. on 08.09.2011, she had

only named Sanoj as a person, who had committed the offence of rape and

subsequently taken her to Bihar. It is contended that the prosecutrix also

did not raise any alarm, while she was being taken from Rewari to Bihar and

that would be sufficient to show that she had gone willingly. It is further

argued that appellant No.1-Manoj has wrongly been convicted, therefore, he

is liable to be acquitted from all the charges levelled against him.

9. Per contra, learned counsel appearing on behalf of the

respondent-State vehemently opposed the arguments addressed by learned

counsel for appellant No.1-Manoj. He argued that there has been a

categorical averment by the prosecutrix in her statement recorded under

Section 164 Cr.P.C. before CJM Narnaul on 08.09.2011, that both Manoj

(appellant No.1) and Sanoj (appellant No.2) had given her intoxicant

substance, which made her unconscious and thereafter, both Manoj and

Sanoj had raped her. Therefore, he prayed that the instant appeal should

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be dismissed and the conviction/sentence should be maintained.

10. I have heard learned counsel for the parties.

11. During the course of arguments, learned counsel for appellant

No.1-Manoj has tried to question the very statement of the prosecutrix,

claiming that there is material improvement that has been made by the

prosecutrix in her two statements. Out of these statements, one has been

recorded by the Investigating Officer under Section 161 Cr.P.C. and the

other one has been recorded by CJM, Narnaul under Section 164 Cr.P.C.

and both of them have been dated 08.09.2011. In simple words, this court

has to weight the evidentiary value of both of these statements of the

prosecutrix, while taking into consideration the statement that has been

recorded during the course of evidence.

12. While stepping into the witness box as PW14, the prosecutrix

in her testimony has stated that she is illiterate girl residing in Huda Narnaul

along with her family members. She went along with Sanoj and Manoj and

her family members for work as daily labourer. At about 10.00 p.m. both

Sanoj and Manoj came to her house and gave her ‘dew’ cold drink and after

drinking it, she felt giddy. She was taken by both Sanoj and Manoj to their

slum (house) where, Manoj took out her cloths and raped her and

subsequently, Sanoj raped her as well. After that Manoj threatened her that

if she will tell about this incident to anyone then he would kill her family

members. Both Sanoj and Manoj took her to Rewari in a vehicle from

where Manoj told Sanoj that Sanoj should take the prosecutrix further, and

he would try to manage other things. Sanoj took her from Rewari railway

station to Bihar and in Bihar, Sanoj took her to slum adjoining railway line

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and raped her. Thereafter, police recovered her and arrested Sanoj. Police

brought her back to Narnual and she was medically examined at GH

Narnaul by the police. Police brought her to court where, her statement was

recorded. When her statement recorded by Magistrate under Section 164

Cr.P.C. was shown to her, she stated that the said statement was made by

her to the Magistrate without any pressure and undue influence, which bears

her thumb impression. She was again medically examined at Gurgaon.

13. In her statement that was recorded by the Investigation Officer

under Section 161 Cr.P.C. on 08.09.2011, no doubt the prosecutrix did not

name appellant No.1-Manoj as a person, who has committed rape upon her.

However, in her statement that was recorded under Section 164 Cr.P.C. by

the Magistrate on 08.09.2011 itself, she named both Sanoj and Manoj, as

the persons who have committed rape upon her, apart from narrating the

other episodes of giving intoxicant substance to her and how she was taken

to Rewari and thereafter to Bihar. The allegations, which she had levelled

against both the appellants in her statement recorded under Section 164

Cr.P.C., she deposed on the similar lines while she appeared in the witness

box as PW14.

14. Admittedly, the prosecutrix herein is a minor girl, who had

categorically stated that she is an illiterate girl and daughter of a daily

labourer. She deposed that she knew both Manoj and Sanoj and they also

work as daily labourer along with her parents. She in no certain terms

stated that she had been given ‘Dew’ cold drink by both the appellants and

after consuming the same, she became giddy and unconscious and narrated

that it is thereafter a wrongful act had been done to her. The expression that

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“wrongful act was done to her” would signify that she had been subjected to

rape. This conclusion was arrived at by referring to the medical available

on the record, duly proved by PW13 Dr. Vandana Yadav, who her

statement has categorically stated that sexual assault on the prosecutrix

cannot be ruled out.

15. The testimony of the prosecutrix as PW14 and statement

recorded by the Magistrate under Section 164 Cr.P.C. clearly substantiate

the fact that both the appellants have subjected her to rape. So far as the

question of statement that was recorded under Section 161 Cr.P.C. is

concerned, it does not bear the signatures of the prosecutrix and this fact has

rightly been noticed by the trial court. Further, during the examination-in-

chief of prosecutrix, which was recorded while she appeared as PW14, the

prosecution has not relied upon or referred to the said statement recorded

under Section 161 Cr.P.C. However, during cross-examination when the

prosecutrix was confronted with her statement that was recorded under

Section 161 Cr.P.C. Ex.DA, she categorically mentioned that she had stated

before the police and Magistrate that at about 10.00 p.m. Sanoj and Manoj

came to her house and gave her dew cold drink and after drinking it, she felt

giddy. She further mentioned that she had stated before the police and

Magistrate that when she started feeling giddy, Sanoj and Manoj took her in

their slum, where Manoj took out her clothes and raped her. During her

cross-examination, she stated that appellants Manoj and Saroj known to her

from last two years and they occasionally visits her house. Earlier also

Sanoj and Manoj used to give her eatable things like Samosa etc. She

categorically stated that at that time appellants Manoj and Saroj offered her

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cold drink, when all her family members were sleeping. Therefore, the

argument as raised by learned counsel for appellant No.1-Manoj that he is

not guilty of the offence as his name does not figure in the statement that

was recorded under Section 161 Cr.P.C., would have no substance. This

court has thoroughly gone through the cross-examination of prosecutrix, but

this court does not find any substance which would go in favour of

appellant No.1.

16. In view of the above discussion, this court is of the considered

view that learned counsel for appellant No.1-Manoj has failed to point any

illegality or perversity in the judgment and order of conviction that has been

passed by the trial court. The material available on record is sufficient to

hold that the appellants are guilty of the offences, as alleged against them.

Accordingly, the appeal in hand is hereby dismissed, being devoid of any

merits.

(JAISHREE THAKUR)
November 24, 2017 JUDGE
vijay saini

Whether speaking/reasoned Yes
Whether reportable Yes/No

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