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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