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Bhura @ Rashid vs State Of Haryana on 28 May, 2018

Crl. Revision No. 2847 of 2017 1

IN THE HIGH COURT OF PUNJAB HARYANA
AT CHANDIGARH

Crl. Revision No. 2847 of 2017
Date of decision : 28.05.2018

Bhura @ Rashid
… Petitioner

versus

State of Haryana … Respondent

CORAM:- HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Argued by:- Mr. Gautam Dutt, Advocate
for the petitioner.

Mr. Arun Kumar, AAG Haryana.
***

ANITA CHAUDHRY, J.

The petitioner-juvenile in conflict with law has challenged the

judgment of conviction and sentence passed by the Courts below.

The Juvenile Justice Board (in short, the Board) vide its

judgment dated 11.01.2017 held him guilty under Sections 366-A, 376-D

read with Section 34 IPC and under Sections 3 and 4 of the Protection of

Children from Sexual Offence Act, 2012 (for brevity, POCSO) and ordered

his stay in the Special Home for three years. The Appellate Court below

modified the sentence and held him guilty under Sections 366 and 376 IPC,

while his conviction under Section 4 of the POCSO Act was upheld. The

sentence imposed by the Board was maintained and the appeal was

dismissed.

The prosecution case, in brief, was that on 11.12.2014

prosecutrix (PW9) approached the police and in the presence of District

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Protection Counsel made a statement that on 05.12.2014 she along with her

brother had gone to the fields to ease in the evening at about 7:00 p.m. The

appellant along with his brother-in-law came there. On gun point, the

appellant forcibly made her to sit on the motor cycle. She was gagged and

taken to the jungle in village Sikwara, Rafiq the third accused was also

present. She was raped by them turn by turn. Rafiq went away while

appellant and his brother-in-law took her to a house in village Sikwara.

Asubi, mother of appellant offered to get her married to the petitioner. She

was kept there for two days. On the third day, Sarju, mother of the appellant,

Wahid, Hakku and Hasi took her and left at the outskirts of her village and

threatened her not to report the incident. The prosecutrix returned home and

narrated the incident to her parents.

On the basis of aforesaid statement, FIR was registered and

investigated. The prosecutrix was medically examined. Vaginal swabs were

taken and her clothes were sent for examination. The appellant was arrested

on 12.01.2015. He was also medically examined. As he was a juvenile,

challan against him was presented before the Board for enquiry. It was

mentioned that the co-accused could not be arrested.

He was served with a notice of accusation for the offences

under Sections 366-A, 376-D read with Section 4 of POCSO Act.

At the trial, sixteen witnesses were produced by the prosecution

which included the prosecutrix and her parents and the investigating officer.

The incriminating evidence was put to the juvenile in his

statement under Section 313 Cr.P.C., which were adjured.

No evidence in defence was led.

On appraisal of evidence, the trial Court held the petitioner

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guilty and sentenced him in the manner indicated above. The juvenile filed

the appeal. It is relevant to mention here that the first Appellate Court

called the status report about the remaining accused and the police in the

status report dated 30.05.2017 informed that Rafiq and Talim were found

innocent and were not required in this case. The Appellate Court held that

there was no inducement and the prosecutrix was kidnapped and was

subjected to rape by the juvenile alone. As noticed above, it modified the

conviction of the juvenile, but his sentence was maintained and the appeal

was dismissed.

Dis-satisfied with it, the petitioner has filed the revision

petition.

I have heard learned counsel for the appellant and learned State

counsel, assisted by counsel for the complainant and have gone through the

records carefully.

Learned counsel for the petitioner had urged that the Courts

below have erred in placing implicit reliance upon the unreliable and

incredible testimonies of the prosecutrix and her parents. He had submitted

that, there was inordinate and unexplained delay in reporting the matter to

the police. According to him, no occurrence had taken place and had there

been kidnapping on 05.12.2014 the parents would have lodged a report. The

prosecutrix was recovered on 07.12.2014, but the police was informed on

11.12.2014. All these things go to show that the story was concocted. He

had further referred to the medical evidence on record and had urged that it

totally belies the prosecution case as there was no mark of external injury

and no semen was detected on the vaginal swab. It was urged that the

prosecutrix was married a year prior to the alleged incident and her hymen

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was ruptured and there was no medical evidence to support her statement

that she was ravished. He had further urged that Sarpanch of the village,

who had handed over the custody of the prosecutrix to her parents, was not

cited as prosecution witness nor he was produced in the Court and the

genesis of prosecution case had been concealed.

On the other hand, learned State counsel has supported the

judgment. According to him, there was ample evidence on record to prove

that the prosecutrix, a minor had been kidnapped and abducted and was

subjected to rape by the petitioner and he was rightly convicted and

sentenced.

It is not in dispute that the prosecutrix was minor on the date of

incident i.e. 05.12.2014. Ex.PW12/B school leaving certificate shows her

age as 08.02.1999. No evidence contrary thereto was brought by the

petitioner. The case rests on the sole testimony of prosecutrix. The

testimonies of her parents are hearsay. They only related what was told to

them. No doubt conviction can be recorded on the solitary testimony of

prosecutrix, but it has to be scrutinized with care and caution and cannot be

mechanically applied to every case of sexual assault. On careful scrutiny of

the evidence available on record, this Court is of the considered view that

the prosecution case suffers from glaring defects and serious infirmities

which go to the root of the case and speak volume about the veracity of the

version propounded by the prosecutrix and her parents.

It was the case of the prosecution that the prosecutrix was

kidnapped on 05.12.2014 when she had gone to ease alongwith her brother.

It has come in the statement of parents of the prosecutrix that immediately

thereafter their son told about the kidnapping of prosecutrix by the

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petitioner and one other person on gun point. But no information was given

to the police. As per prosecution case, the girl was handed over to her

parents by the Sarpanch on 07.12.2014 and she disclosed to them about her

kidnapping and rape by the petitioner and two others. This time also, the

prosecutrix and her parents kept quiet and did not inform the matter to the

police and after a considerable delay the matter was reported to the police

on 11.12.2014 and FIR was lodged. Though, father of the prosecutrix

attempted to cover up the delay and deposed that on 06.12.2014 a complaint

was made to the police and the police took his signatures and that of his

brother and Sarpanch on the papers. But there is nothing on record to show

that any complaint was made to the police on 06.12.2014. The prosecutrix

also deposed that between 06.12.2014 to 11.12.2014 her parents and she

had gone to the police station for getting the FIR lodged, but the police did

not record her statement. But it stands falsified from the fact that neither in

the FIR nor in her statement recorded under Section 164 Cr.P.C., she had

mentioned that earlier attempts were made to lodge the complaint with the

police. The unnatural conduct of the parents of the prosecutrix and the

inordinate and unexplained delay on the part of prosecution to report the

matter to the police speaks volume about the veracity of the deposition

made by the prosecutrix and her parents. They are contradictory as to when

the prosecutrix had returned. As per PW6 (father of the prosecutrix), the girl

was handed to them on 07.12.2014 by the Sarpanch at about 2:00 a.m. in the

night, whereas PW7, mother of the prosecutrix deposed that they had gone

to the house of Sarpanch three days after the occurrence at 10:00 p.m. and

girl was given to them. The prosecutrix though claimed in her statement that

she was kept in the house till 07.12.2014, but she contradicting herself

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deposed in her cross-examination that she along with her parents had gone

to the police station on 06.12.2014 to lodge a complaint.

Hon’ble Supreme Court in Raju and others Vs. State of

Madhya Pradesh, (2008) 15 SCC 133 has held that the accused must be

protected against the possibility of false implication. It has been further held

that in so far as the allegations of rape are concerned, the evidence of

prosecutrix must be examined as that of an injured witness whose presence

at the spot is probable but it can never be presumed that her statement

should without exception be taken as the gospel truth. It was held:

“10. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a
prosecutrix should not be suspect and should be
believed, the more so as her statement has to be
evaluated at par with that of an injured witness and
if the evidence is reliable, no corroboration is
necessary. Undoubtedly, the aforesaid observations
must carry the greatest weight and we respectfully
agree with them, but at the same time they cannot
be universally and mechanically applied to the facts
of every case of sexual assault which comes before
the Court.

11. It cannot be lost sight of that rape causes the
greatest distress and humiliation to the victim but at
the same time a false allegation of rape can cause
equal distress, humiliation and damage to the
accused as well. The accused must also be
protected against the possibility of false
implication, particularly where a large number of
accused are involved. It must, further, be borne in
mind that the broad principle is that an injured
witness was present at the time when the incident
happened and that ordinarily such a witness would

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not tell a lie as to the actual assailants, but there is
no presumption or any basis for assuming that the
statement of such a witness is always correct or
without any embellishment or exaggeration.

12. Reference has been made in Gurmit Singh’s
case to the amendments in 1983 to
Sections 375 and
376 of the India Penal Code making the penal
provisions relating to rape more stringent, and also
to
Section 114A of the Evidence Act with respect to
a presumption to be raised with regard to
allegations of consensual sex in a case of alleged
rape. It is however significant that
Sections 113A
and
113B too were inserted in the Evidence Act by
the same amendment by which certain presumptions
in cases of abetment of suicide and dowry death
have been raised against the accused. These two
Sections, thus, raise a clear presumption in favour
of the prosecution but no similar presumption with
respect to rape is visualized as the presumption
under
Section 114A is extremely restricted in its
applicability. This clearly shows that in so far as
allegations of rape are concerned, the evidence of a
prosecutrix must be examined as that of an injured
witness whose presence at the spot is probable but
it can never be presumed that her statement should,
without exception, be taken as the gospel truth.
Additionally her statement can, at best, be adjudged
on the principle that ordinarily no injured witness
would tell a lie or implicate a person falsely. We
believe that it is under these principles that this
case, and others such as this one, need to be
examined.”

In Tameezuddin alias Tammu Vs. State (NCT of Delhi),

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(2009) 15 SCC 566 it has been held that though evidence of prosecutrix

must be given predominant consideration, but to hold that this evidence has

to be accepted even if the story is improbable and belies logic, would be

doing violence to the very principles which govern the appreciation of

evidence in a criminal matter. It had been held as follows:

“9. It is true that in a case of rape the evidence of
the prosecutrix must be given predominant
consideration, but to hold that this evidence has to
be accepted even if the story is improbable and
belies logic, would be doing violence to the very
principles which govern the appreciation of
evidence in a criminal matter. We are of the opinion
that story is indeed improbable.

In this case, vital link in the chain of evidence is missing. The

Sarpanch of the village had given the girl to her parents, but he was not

cited as a prosecution witness. As per statement of prosecutrix and her

parents, she was handed over to Sarpanch by the mother and relatives of the

petitioner and the Sarpanch called her parents. He was an important witness

but for the reasons best known to the investigating agency he was not cited

as a prosecution witness and kept away from the witness-box. He was the

best person to depose about the manner of her recovery.

The medical evidence also belies the story propounded by the

prosecution witnesses. A perusal of statement of PW5 Dr. Ruchi Mangla

would reveal that though her hymen was found ruptured, but it has come in

the statements of prosecutrix and her parents that she was already married

about a year prior to this incident. On examination, no external mark of

injury was found on the body of the prosecutrix. Had she been subjected to

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rape, as has been deposed by her, there would have been resistance and

marks on her body, which were missing. The investigating agency did not

bother to obtain final opinion regarding rape from the doctor. No semen was

detected on the vaginal swabs. Human semen detected on the Salwar of the

prosecutrix was never sent for DNA analysis.

In the case of Munna Vs. State of Madhya Pradesh, 2014(10)

SCC 254, in a similar situation, the Hon’ble Apex Court held as under:-

“11. Thus, while absence of injuries or absence of raising
alarm or delay in FIR may not by itself be enough to disbelieve
the version of prosecution in view of the statutory presumption
under
Section 114-A of the Evidence Act but if such statement
has inherent infirmities, creating doubt about its veracity, the
same may not be acted upon. We are conscious of the
sensitivity with which heinous offence under
Section 376 IPC
has to be treated but in the present case the circumstances
taken as a whole create doubt about the correctness of the
prosecution version. We are, thus, of the opinion that a case is
made out for giving benefit of doubt to the accused.”

Onus of proof is on the prosecution to establish each ingredient

beyond reasonable doubt. It is found that the evidence led by the

prosecution suffers from serious infirmities and inconsistencies and the

Courts below have erred in relying upon the statements of unreliable and

untrustworthy witnesses. Allegations of kidnapping, abduction and rape

carry grave implications. Therefore, for convicting any person for the

offence, the degree of proof has to be of a higher standard and not mere

possibility. The prosecution has failed to prove the case against the

petitioner beyond shadow of reasonable doubt. The petition is allowed.

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Judgment of conviction and sentence passed by the Courts below are set

aside. The petitioner is acquitted. He be released from Special Home,

Sonepat, if not required in any other case.

May 28,2018 (ANITA CHAUDHRY)
Jiten JUDGE

Whether speaking/ reasoned Yes/ No

Whether reportable Yes/ No

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