Hem Raj vs State Of Punjab on 27 November, 2017

CRA-S No.3543-SB of 2012 [1]

IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH

Criminal Appeal No. 3543-SB of 2012(OM)
Date of Decision: November 27 , 2017.

Hem Raj …… APPELLANT (s)
Versus
State of Punjab …… RESPONDENT (s)

CORAM:- HON’BLE MRS.JUSTICE LISA GILL

Present: Mr. Rohit Rana, Advocate for
Mr. Kunal Dawar, Advocate
and Mr. Tarundeep Kumar, Advocate
for the appellant.

Mr. Saurav Khurana, DAG, Punjab.
*****
1. Whether reporters of local papers may be allowed to see
the judgment?
2. To be referred to the reporters or not?
3. Whether the judgment should be reported in the digest?
*****

LISA GILL, J.

The appellant – Hem Raj has been convicted for the offences

punishable under Sections 376/506 IPC by the learned Additional Sessions

Judge, SAS Nagar, Mohali vide judgment dated 06.09.2012. By a separate

order dated 08.09.2012, the appellant has been sentenced to undergo rigorous

imprisonment for ten years, besides, pay a fine of `3,000/- and in default

thereof, undergo further rigorous imprisonment for two months for the offence

punishable under Section 376 IPC. He has been sentenced to undergo

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imprisonment for one year for the offence punishable under Section 506 IPC.

Both the sentences are ordered to run concurrently. Aggrieved therefrom,

present appeal has been preferred.

Brief facts of the case are that, the prosecutrix/complainant

suffered a statement (Ex.PA) on 14.05.2011 before ASI Harpal Singh (PW4),

Police Station Balongi stating that she was working as a domestic help at House

No.129, Phase 4, Mohali. She had gone back to her parental home in Azad

Nagar, Balongi on 18.03.2011 after seeking leave for three days on account of

festival of Holi. It is stated that the complainant’s mother alongwith both her

brothers had gone to the market for making some purchases in regard to Holi

festival. The complainant was alone at her house. She had bolted the door from

inside. At about 6.00 p.m., someone knocked at the door of the house. She

opened the door and discovered that it was her father i.e., the appellant. He

came inside and bolted the door. It is stated that that the appellant threw her on

the bed and committed rape upon her. Thereafter, he threatened and intimidated

her that in case she disclosed anything about this incident, he would kill her.

The complainant stated that she out of fear did not disclose this incident to

anyone. Her father committed rape upon her subsequently on two or three

occasions as well. The complainant further reveals that she disclosed about the

said incident to her employer Naveen Soni and Alka Soni on 14.05.2011. Her

employer and his wife consequently took her to the police station when ASI

Harpal Singh met them at the Tax Barrier, Balongi and her statement was

recorded on 14.05.2011 itself. Legal action against the appellant was prayed

for.

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FIR No.37 dated 14.05.2011 (Ex.PW4/B) was registered on the

basis of the statement of the complainant. Investigation was carried out by

PW4 ASI Harpal Singh. PW4 ASI Harpal Singh accompanied the complainant

and her employers to the scene of the crime. Rough site plan (Ex.PW4/C) was

prepared. An application (Ex.PW4/D) was moved for conducting the medico-

legal examination of the complainant before the Civil Hospital, Kharar.

Medical examination was conducted. A copy of the MLR (Ex.PW6/A)

alongwith vaginal swabs were handed over to PW4 ASI Harpal Singh. The

sealed parcel was deposited by him with the MHC. They were not tampered

with. Urine test of the complainant/prosecutrix was conducted. Ultrasound and

x-ray examination could not be conducted due to low voltage of electricity.

Thereafter on 17.05.2011, ultrasound was conducted at Civil Hospital, Kharar.

It transpired that the complainant was carrying a dead foetus of gestation period

of nine weeks and two days in her womb. It was advised that abortion was to

be conducted otherwise life of the complainant would be in danger. The

procedure was carried out on 17.05.2011 by PW7 Dr. Sonia Gulati. Parcel

containing the dead foetus and sealed envelope were handed over to PW4 ASI

Harpal Singh. It was taken in possession vide memo Ex.PW4/M.

The accused appellant was arrested on 22.05.2011. Blood samples

and the dead foetus were sent to CBI Laboratory, New Delhi for DNA profiling.

Fresh blood samples were sent on request of the Laboratory. FSL report

(Ex.PW6/D) dated 14.06.2011 was received whereby it is reported that

spermatozoa were detected in the contents of Ex.I (vaginal swabs of the

prosecution). Reports of the DNA profiling is Ex.PW4/N and Ex.PW4/P. The

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DNA report was inconclusive.

Final report under Section 173 Cr.P.C. was presented on

completion of the investigation. Charge under Sections 376/506 IPC was

framed against the appellant on 03.11.2011 to which he pleaded not guilty and

claimed trial. To prove its case, the prosecution examined as many as nine (9)

witnesses.

The appellant in his statement under Section 313 Cr.P.C. has

denied all the incriminating material and evidence put to him. He pleaded false

implication and has stated that his daughter was not holding a good character.

She was apprehended in a compromising position with some persons due to

which he had beaten her in order to prevent her from indulging in such

activities. It is further stated that brother as well as maternal uncle of the

prosecutrix had also apprehended her in compromising positions. It is due to

this reason that a false case was registered against him.

The learned trial court on consideration of the facts and

circumstances as well as the evidence on record concluded that the prosecution

succeeded in proving its case against the appellant beyond the shadow of

reasonable doubt. Consequently, the appellant was convicted and sentenced as

detailed above. Aggrieved therefrom, the present appeal has been filed.

Mr. Rohit Rana, learned counsel for the appellant vehemently

argues that the appellant has been falsely implicated in this case. The evidence

on record does not unerringly point out to the guilt of the appellant. It is

contended that as per the FSL report dated 14.06.2011 (Ex.PW6/D),

spermatozoa was found present in Ex.1, thereby indicating that the prosecutrix

had indulged in sexual activity around the time when her medical examination

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was conducted on 14.05.2011. Incident in question is alleged to have been

taken place on 18.03.2011. Though the prosecutrix in her initial statement

mentioned that her person was violated twice or thrice subsequent to

18.03.2011 by the appellant, however in her statement under Section 164

Cr.P.C. as well as her statement before the trial court, she stated that she never

visited her parental home after the incident on 18.03.2011. It is urged that this

fact by itself lends credence to the defence version that the prosecutrix was in

relationship with some other persons and her father has been falsely implicated

as he had physically abused her due to her conduct. It is further submitted that

a dead foetus of about nine (9) weeks and two (2) days was evacuated from the

womb of the complainant on 17.05.2011. There is nothing on record to indicate

as to when the foetus had expired. Therefore, yet again the prosecution version

rings hollow because even a period of sixty days had not elapsed from

18.03.2011 till 17.05.2011. Moreover, the DNA profiling report was

inconclusive. The appellant had willingly given his blood samples as he

wished that truth should come to light.

Learned counsel for the appellant further points out that the

statement of the complainant/prosecutrix (PW1) is riddled with the

discrepancies and inconsistencies. Moreover, the prosecutrix in her cross-

examination admitted that her marriage was fixed with one Raju. After her

betrothal with Raju, the complainant’s mother was opposed to the idea of

marriage of the complainant with said Raju as it came to light that he belonged

to a different caste. It is stated that Raju had moved an application against the

complainant’s parents before the police that her parents were not solemnizing

their marriage. She further stated that a mobile set was given to her by Raju

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when she was at the house of her employer. The prosecutrix (PW1) further

revealed that her marriage was fixed with another person of U.P., namely, Shri

Ram. She has denied the suggestion that she did not wish to marry Shri Ram.

Learned counsel for the appellant argues that the defence evidence

has been wrongly ignored by the learned court below. The mother of the

prosecutrix while deposing as DW4 clearly stated that the complainant

developed illicit relations with one Raju. Engagement ceremony of the

prosecutrix was performed with Raju but when they came to know that said

Raju belongs to a lower caste, they broke the engagement. However, the

prosecutrix continued to meet Raju. The prosecutrix tried to slip away with

Raju. She was brought back from the house of her employer on a complaint by

the father of Naveen Soni. When her husband gave severe beatings to the

prosecutrix, she (DW4) rescued the prosecutrix (PW1) from her husband i.e.,

the appellant. It is revealed that father of Naveen Soni fell ill and she was

requested to again send the prosecutrix to their home to do the domestic work.

It was promised that they would not allow the prosecutrix to go out of their

home and would keep a close watch on her. Marriage of the prosecutrix was

fixed with someone at U.P. A suspicion was raised that the prosecutrix may

have developed illicit relations with the son of her employer as well. They were

not allowed to meet their daughter by their employer. She further revealed that

no complaint was ever made to her by the complainant against the conduct of

the appellant. Learned counsel states that the son and daughter-in-law of the

appellant have duly deposed in his favour. It is submitted that it is beyond any

stretch of imagination that the mother, brother and sister-in-law of the

prosecutrix collectively would not support the case of the complainant in case

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there was any truth in the allegations. It is thus prayed that this appeal be

allowed, the impugned judgment and order dated 06.09.2012/08.09.2012 passed

by the learned Additional Sessions Judge, SAS Nagar, Mohali be set aside and

the appellant be acquitted of the charges against him.

Learned counsel for the State while refuting the abovesaid

arguments submits that the prosecution has proved its case beyond all

reasonable doubts. The evidence on record clearly points to the guilt of the

appellant. There is no reason for the prosecutrix to falsely implicate the

appellant, who is none other but her own father. There is nothing on record to

indicate the involvement of the prosecutrix with anyone else. The medical

evidence on record indicates that the prosecutrix was subjected to sexual

intercourse. She developed a pregnancy as well. Report of the DNA profiling

being inconclusive, it is submitted, does not detract from the prosecution

version in any manner. It is thus prayed that the impugned judgment and order

dated 06.09.2012/08.09.2012 passed on proper and due appreciation of the

evidence be maintained.

I have heard learned counsel for parties and have carefully gone

through the record of the case with their able assistance.

As per the allegations in the FIR, the incident in question occurred

on 18.03.2011 when the complainant was at her parental home. She had gone

to her parental home for the festival of Holi after seeking leave for three days

from her employer. It is not in dispute that she did not disclose about this

incident to anyone till the recording of her statement (Ex.PA) before the police

on 14.05.2011. She disclosed about the alleged incident to her employer Navin

Soni and his wife Alka Soni, who took her to the police station. FIR No.37

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dated 14.05.2011 was consequently lodged.

It is to be noted that in her initial statement, the prosecutrix stated

that her person was violated twice or thrice subsequent to 18.03.2011 by the

appellant, who is none other but her father. However in her statement under

Section 164 Cr.P.C. as well as her statement before the learned trial court, the

prosecutrix categorically stated that she never visited her parental home after

the incident on 18.03.2011. There is no mention, whatsoever, of violation of

her person by the appellant subsequently. In her cross-examination, the

prosecutrix states that none had ever violated her person prior to the incident in

question which took place on 18.03.2011 and neither was her person violated

subsequent thereto. When confronted with her initial statement, she tried to

explain by stating that the appellant had committed rape upon her in the year

2010 and twice before the occurrence in question.

In this scenario, FSL report dated 14.06.2011 (Ex.PW6/D) assumes

importance. As per the said report, spermatozoa was detected in the contents of

Ex.1 i.e., one of the vaginal swabs taken from the victim at the time of her

medical examination on 14.05.2011. It clearly indicates about sexual activity

indulged in by the prosecutrix around the time of her medical examination on

14.05.2011. A serious doubt is thus cast on the prosecution version by this fact

itself. Moreover, the DNA profiling report was admittedly inconclusive. The

appellant had willingly given his blood samples.

It is further relevant to note that a foetus of about nine weeks and

two days was removed from the womb of the complainant on 17.05.2011.

Medical examination of the prosecutrix was admittedly carried out on

14.05.2011. The ultrasound was conducted on 17.05.2011 when it transpired

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that the prosecutrix was carrying a dead foetus as above. It is to be noted that

even as on 17.05.2011, the period of nine weeks from the date of the alleged

incident i.e. 18.03.2011, had not elapsed. In this context, it is extremely

imported to note the statement of the doctor PW7 Dr. Sonia Gulati to the extent

that as per the ultrasound report the observation that a foetus of about nine

weeks and two days was detected means that the foetus was alive upto nine

weeks of gestation. It could not be opined as to since when the foetus was lying

dead in the womb. In this view of the matter, argument raised on behalf of the

appellant indeed carries weight. It is highly improbable in the facts and

circumstances that pregnancy of the prosecutrix/complainant was caused due to

the incident which is alleged to have occurred on 18.03.2017, even if the

gestation period is counted from the last menstrual period.

A perusal of the testimony of the prosecutrix reveals that she has

specifically admitted her relation with one Raju. It is stated by the prosecutrix

that her marriage with Raju was fixed by her parents in the year 2010 though

without consulting her. She however approved the said boy. The prosecutrix

further stated that her mother started disliking the said Raju after finalization of

their marriage on account of difference in their castes. She specifically

admitted that Raju submitted an application against her parents as they refused

to solemnize her marriage with him. It is admitted by the prosecutrix that a

mobile phone was given to her by Raju when she was present at the house of

her employer. The prosecutrix stated that when she went out of the house to

deliver the clothes to washerman, Raju after placing a mobile set outside her

employer’s house in her presence, went away. The said mobile phone had been

given to her a year prior to the occurrence. The prosecutrix/complainant further

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stated that after snapping ties with said Raju, her parents fixed her marriage

with a person, namely, Sri Ram from U.P. Invitation cards of her marriage with

Sri Ram were also printed. Her father had gone to U.P. to make arrangements

in connection with marriage.

PW2 Alka Soni, employer of the complainant stated that they had

employed the victim as domestic help in their house. The victim had taken

leave of three days and gone to her parental home on 18.03.2011. The victim, it

is stated, told PW2 on 14.05.2011 that she had not been menstruating for two

months and complained for vomiting. The victim was taken to a medical

practitioner, some medicines prescribed but she did not stop vommiting. PW2

stated that the victim revealed that on the festival of Holi the victim’s father

commited rape upon her when she was all alone at home. The victim disclosed

that her father had threatened to kill her if she revealed about the incident to

anyone. Thereafter, the victim was taken to the police. Her statement was

recorded and prosecution was set in motion. The victim was medically

examined and she was found pregnant. The foetus on ultrasound was detected

to be dead. Custody of the victim was handed over to PW2. Abortion was

carried. The victim was brought back by PW2 to their home. In respect of the

mobile phone with the complainant, PW2 affirmed that the complainant had a

mobile phone with her for a few days though PW2 presumed that she got the

said mobile phone from her parental house. It is stated that the complainant had

brought the mobile phone after her engagement and she might be talking to her

fiancé or her parents on the said mobile phone. It is admitted by PW2 Alka

Soni that engagement ceremony of the complainant was performed with a boy

named Raju living at Balongi though their engagement were later broken. It is

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not denied by her that custody of the complainant was handed over to them by

the police on 14.05.2011 and not to the parents of the victim. PW2 denied the

suggestion that when the mother and sister-in-law of the complainant came to

meet the complainant at her home, she insisted that they should talk to the

complainant only in her presence. It is to be noted that PW2 admitted that the

complainant was taken to a medical practitioner before the police was

approached as she complained of vomiting. However, it is noted that there is

nothing on record to substantiate the same. Leave alone examine such a

practitioner, even name of the said doctor is not forthcoming. No prescription

which may have been given by such a medical practitioner is on record.

The complainant’s own mother while deposing as DW4 stated that

the complainant had developed relations with one Raju which was not to their

liking. Prior to that also, she had developed relations with another person.

They had employed her at the house of Mr. Navin Soni to prevent the

complainant from developing illicit relations. On persuasion of their

neighbour, marriage between the complainant/prosecutrix and Raju was fixed.

Engagement ceremony was held but the engagement was broken when they

came to know that Raju belonged to a lower caste. However, the complainant

continued to meet the said Raju. She tried to slip away with him upon which

her husband i.e., the present appellant gave severe beatings to the

complainant/prosecutrix. DW4, it is stated, had rescued her from the appellant.

DW4 has denied that her husband had ever violated the complainant in any

manner. DW2 i.e., the sister-in-law (Bhabi) of the complainant as well as DW3

i.e., the brother of the complainant’s mother have also deposed on similar lines.

A careful scrutiny of the evidence on record brings to the fore

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material discrepencies and inconsistencies which are not in consonance with the

hypothesis of the guilt of the appellant being proved beyond reasonable doubt.

Doubtlessly the complainant has raised serious allegations against the appellant,

who is none other than her own father. It is not in dispute that the sole

statement of the prosecutrix in given circumstances can be sufficient for

convicting an accused for the offence punishable under Section 376 IPC

provided the credibility of the said prosecutrix/victim is unimpeachable. It is

however open to the court to look for corroboration in a given set of

circumstances. In the facts and circumstances, it would not be safe to solely

rely upon the same to convict the appellant. Even if the delay in lodging of the

FIR in question is ignored, there are material inconsistencies in the statement of

the prosecutrix which renders it unsafe to be relied upon without corroboration.

Engagement of the victim with Raju, their subsequent break-up and an

application by Raju against the victim’s parents is admitted by the victim

herself. She has also admitted her subsequent engagement to one Shri Chand

from U.P. at the instance of her parents. Similarly, the employer of the victim,

PW2, narrated the incident as disclosed to her by the victim on 14.05.2011 after

two months of the alleged incident. PW2 has no personal knowledge of the

occurrence. PW2 admitted that the victim was in contact with the said Raju.

Therefore, in the factual matrix of the case, it is considered unsafe and

inexpedient to rely solely on their statements without corroboration.

The medical evidence on record as discussed earlier does not

corroborate the version given by the prosecutrix. There is no explanation for

the presence of spermatozoa in the vaginal swabs of the prosecutrix taken

during her medical examination on 14.05.2011, especially in view of her

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statement to the effect that she had not been raped by her father at any point of

time after 14.03.2011. The victim and PW2, in fact, stated that the victim had

not gone to her parental home after the said incident on Holi. The wife of the

appellant i.e., the mother, sister-in-law (Bhabi) and maternal uncle (Mama) of

the prosecutrix have steadfastly supported the stand taken by the appellant.

There appears to be no reason on record to indicate as to why even the mother

of the complainant/prosecutrix would be inimical towards her. It is opposed to

all probabilities that all the abovesaid in one voice would not have supported

the complainant’s version. A veritable, palpable and reasonable doubt is indeed

cast upon the prosecution version on consideration of the entire conspectus of

facts. The benefit thereof necessarily has to accrue to the accused who in this

case is definitely entitled to the benefit of doubt.

In view of the facts and circumstances as above, it is held that the

prosecution has not succeeded in proving its case against the appellant beyond

the shadow of all reasonable doubts.

Accordingly, this appeal is allowed. Judgment and order dated

06.09.2012 and 08.09.2012, respectively, passed by the learned Additional

Sessions Judge, SAS Nagar Mohali are set aside. The appellant is acquitted of

the charges against him.

The appellant is in custody. He be released forthwith, if not

required in any other criminal case.

( LISA GILL )
November 27 , 2017. JUDGE
‘om’

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