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Akhlak vs State Of Haryana on 13 November, 2017

CRA-S-3448-SB-2017 (OM) 1


CRA-S-3448-SB-2017 (OM)
Reserved on: 31st October, 2017
Pronounced on 13th November, 2017

Akhlak .. Appellant


State of Haryana ..Respondent


Present: Mr. Jaspal Pannu, Advocate, for
Mr. J.S.Gill, Advocate, for the appellant.


1 The appellant has filed this appeal assailing the judgment of

conviction dated 24.8.2017 and order of sentence dated 25.8.2017 of the

Additional Sessions Judge, Faridabad, under sections 365,377, 506 IPC and

section 6 of the POCSO Act in the following terms:-

Under section 365 IPC To undergo rigorous imprisonment for

three years and pay a fine of Rs,1000/-. In

default thereof, further undergo seven


Under section 377 IPC To undergo rigorous imprisonment for

ten years and pay a fine of Rs,5000/-. In

default thereof, further undergo one


Under section 506 IPC To undergo rigorous imprisonment for

one year and pay a fine of Rs.1000/-. In

default thereof, further undergo for seven


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Under section 6 POCSO Act To undergo rigorous imprisonment for

ten years and pay a fine of Rs,5000/-. In

default thereof, further undergo one


All the sentences were ordered to run concurrently.

2. Briefly stated, the accused as a tenant, was running a refrigerator

repairing shop in village Dhauj. The child, (hereinafter referred to as “the

victim”) son of the complainant Salauddin, aged 12 years, had become a

friend of the appellant since last 1 ½ years and thus, both were on visiting

terms with each other. The victim and the appellant along with motorcycle

bearing registration no. HR-51-AT-8924 went missing in the evening of

14.6.2016 and despite best efforts, they could not be traced. Therefore, the

complainant moved an application Ex.PD, to the police raising suspicion

that some one had kidnapped them, which culminated into the FIR. During

investigation, the statements of the material witnesses were recorded. The

victim was recovered from the custody of the appellant. The aforesaid

motor-cycle was taken into possession from the appellant. The appellant and

the victim were got medico-legally examined. After completion of necessary

formalities, report under section 173 of the Code of Criminal Procedure was

presented before the court.

3. After complying with the provisions of section 207 of the Code

of Criminal Procedure, copies of challan were supplied to the accused. They

were charge sheeted under sections 365, 377, 506 IPC and 4 of the

Protection of Children From Sexual Offence Act, 2008 (in short the

“POCSO Act”.

4. The prosecution, in support of its case, examined as many as

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12 witnesses. The statement of the accused under section 313 of the Code of

Criminal procedure was recorded putting entire incriminating evidence

came on record against him. He pleaded his false implication. He, however,

did not lead any evidence in defence.

5. After hearing both the sides, the trial court convicted and

sentenced the appellant in the manner as narrated in the opening part of this


6. Learned counsel for the appellant contends that according to

the initial version mentioned in the complaint Ex.PD, the appellant and the

victim went on missing since 14.6.2016, but the FIR was registered after

four days on 18.6.2016, which casts serious dent in the prosecution story.

Both the appellant and the victim were known to each other, who had gone

to attend the marriage at Jaipur and stayed there in a hotel. None of the

witnesses from the alleged hotel, where the appellant and the victim had,

allegedly, stayed or any other witness from Jaipur or scrap vendor from

whom the appellant had taken the alleged money in the presence of victim

were examined by the prosecution to complete the chain of link evidence.

According to the prosecution, carnal intercourse was committed by the

appellant with the victim in village Aherwan falling in district Palwal,

where the appellant had taken a shop on rent. Both of them used to visit

mosque, but no person from the said village or even a clergy of the mosque

was examined by the prosecution to corroborate the testimony of the

complainant and victim. Thus, on the basis of uncorroborated sole

testimony of the complainant, the conviction of the appellant was illegal.

According to PW7 Dr. Upender Bhardwaj, no injury was found on the

person of the victim. Even Kallu whose motorcycle, allegedly, was taken

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away by the appellant was not examined to corroborate the prosecution

version. PW-7 Dr. Upender Bhardwaj, had testified that photoscopic test of

the witness was conducted and anal was found normal, i.e., no abnormality

was found in the region, therefore carnal intercourse with the victim by the

appellant was not proved. Strangely enough, after the alleged call of the

victim to his father, he appeared within five minutes at the spot and effected

the recovery of his son, creates a suspicion about the prosecution story,

inasmuch as village Dhauj from where the recovery is effected is at far away

place. The things did not happen in the manner narrated by the prosecution.

7. Having given thoughtful consideration to the submissions made

by learned counsel for the appellant, the appeal, being without any merit,

fails and deserves to be dismissed for the following reasons:

8. From the testimony of PW1 Subhash Dudeja, Principal

Government Senior Secondary School, Dhauj, it is established on the record

that date of birth of the victim was 17.12.2003. A certificate Ex.PA/1, in

this regard, has been issued regarding the date of birth of the victim.

9. In order to substantiate its case, the prosecution examined the

victim as PW2, who has categorically deposed that he is a student of 7th

standard, studying in Government School, Dhauj, Faridabad. He belongs to

Sikrawa. His father runs a shop of mobile phone in village Dhauj. His

brother and father used to sit in the shop in the day time, whereas his father

in the evening time. The shop of washing machine and refrigerator, being

run by Fufa of the appellant is in front of his shop, where the accused was

employed, therefore, he knew him. On 14.6.2016, the appellant allured him

and took him away by alleging that he had to take petrol for his motor-

cycle. Thereafter, the appellant took him to Faridabad, from where he took

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some money from a scrap vendor. At around 6.00/7.00 A.M., the appellant

then took him to village Manger, where he repaired a washing machine in a

house. He had already kept his clothes in that house. Then he assured him to

go to Sohna, but he proceeded to Jaipur. When he asked the appellant about

Sohna that had not come, he asked him that he had enticed, misguided him

and had to take him to Jaipur. He reached Jaipur by motorcycle. Thereafter,

he took a room in a hotel, where they slept for one night. He stayed there

quite well with him during that night. On the next day, he started looking

for a rented shop for doing the work of repairing washing machine and

fridge, but could not succeed. In Jaipur, he used to threaten him. Then, both

of them came back to village Aharwan, District Palwal. He took a shop on

rent at village Aharwan. He along with the appellant used to remain in shop

during the day time and on account of Rojas, they used to go to mosque

(Masjid) in the evening for first five days for taking shelter in the night. On

the sixth day, the accused-appellant took him to forest (jungle) in the night

and committed carnal intercourse (sodomy) with him forcibly and also

threatened him to eliminate, in case, he disclosed this incident to anyone or

his family members. He also beat him up mercilessly and then he took him

on the same shop which he had taken on rent in village Aharwan, where

they slept over the roof of the shop. There also, he committed unnatural

intercourse with him forcibly. In the morning, when he tried to narrate the

incident to some one, he threatened to kill him. Then on the next day, he

made a call to his father from the mobile of the appellant when he was

taking rest in the same shop due to headache during day time. His father

reached the spot within five minutes as he had already been looking for him

in that area. He accompanied the police party. Thereafter, the police

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officials took him in Faridabad. His statement Ex.PB was recorded by the

police in the presence of legal aid counsel. He also got recorded his

statement Ex.PC before the learned Illaqa Magistrate. He was medico-

legally examined from the Government Hospital, Ballabgarh.

10. The above testimony of a minor victim is above board and quite

natural. Despite his lengthy cross-examination, nothing could be elicited in

favour of the appellant. The above narration of the minor victim cannot be

disbelieved in the absence of any rebuttal from the side of the appellant,

especially when no motive or ill-will has been attributed to the minor victim

against the appellant. Moreso, it is impossible that a minor, aged 12 years,

on tutoring, would depose in such a manner, detailing each and every event

and happening during day and night in a chronological orders. The sequence

of events were narrated exactly by the minor victim in the same manner as it

occurred with him during this episode. He corroborated his earlier

statements Ex.PB and Ex.PC. He categorically deposed before the trial

court, narrating the same version occurred with him. Therefore, the

statement of the child witness lends credence to the version of the

prosecution. A perusal of the record further shows that the victim appeared

two times before the authorities concerned, i.e., police and the learned Illaqa

Magistrate and then, third time, appeared before the court as PW2. On every

occasion, the statement of the victim remained unshattered. He remained in

the company of the appellant for seven days. On account of persistent

threats to kill the victim, he got frightened, kept quiet and did not elicit with

respect to abduction and carnal intercourse. The moment he got an

opportunity when the appellant was taking a rest for a short while, he made

a telephonic call to his father, narrated him the incident and then his father,

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in no time, along with police team rushed at the spot. Therefore, the sole

testimony of the victim is sufficient to subscribe the real happening of anal

intercourse by the appellant with him.

11. With respect to unnatural intercourse by the appellant with the

victim, prosecution examined PW7 Dr. Upender Bhardwaj, deposed that on

22.6.2016, he was posted as a Medical Officer in B.K. Hospital, Faridabad.

On that day, police produced the victim along with application Ex.PG/1

before him for Surgeon’s opinion. He medico-legally examined the victim.

After examination, he gave his opinion Ex.PG that possibility of anal sex

cannot be ruled out. PW12 Dr. Maan Singh tendered in evidence his

affidavits Ex. PW12/A and Ex.PW12/B. In affidavit Ex.PW12/A, he

testified that on 21.6.2016, he medico-legally examined the victim. He

proved the MLR, Ex.PQ, of the victim and deposed that after noticing the

Surgeon’s opinion Ex.PG and going through the MLR,Ex.PQ, he is of the

opinion that possibility of anal intercourse (unnatural intercourse) cannot be

ruled out. In affidavit Ex.PW12/B, he deposed that on 21.6.2016 he medico-

legally examined the appellant and proved the MLR, Ex.PR,of the appellant.

12. PW3 Babudeen, testified that he was the owner of Motor-cycle

bearing registration no.HR-51-AT-8924 make `Splendour’. About 7-8

months prior to the incident of this case, he had sold this motorcycle to the

appellant. He also got issued “No objection certificate” in the name of the


13. Salauddin, father of the victim, stepped into the witness box as

PW4 and categorically deposed that the victim, his son, is aged 12 years.

In front of his shop, there is a shop of repairing washing machines and

refrigerators being run by Fufa of the appellant, where the appellant used to

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do the work for the last two years. On account of this fact, he also used to

visit his shop. At around 5.00 P.M on 14.6.2016 appellant Akhlak took his

son with him on motor-cycle bearing registration no.8924. He looked for his

son in the vicinity as well as in relations, but to no avail. On 18.6.2016, he

moved an application Ex.PD duly signed by him with the police for

registration of the case. The police swung into action. On 21.6.2016 he

received a telephonic call from his son narrating incident to him that

appellant Akhlak allured him on the pretext of taking money from Faridabad

and then took him to Jaipur. Both of them spent a night in Jaipur. On the

next day, the appellant took him at village Aharwan, Hathin and kept him

there in confinement and during night time, he took him in a jungle and

committed anal intercourse with him, threatening to eliminate him in case

he disclosed the incident to anyone. The appellant gave him merciless

beating and asked him to get him freed. Thereafter, his son disconnected the

telephone. He reported the matter to the police. He along with the police

party reached the spot and with the help of villagers, the officials of the

police team arrested the appellant. His son was recovered vide recovery

memo Ex.PE, duly signed by him. Motor-cycle of the appellant was also got

recovered. Then they returned to police post Dhauj. The police recorded the

statement of his son and also got recorded his statement before the Illaqa

Magistrate. His son and accused Akhlak were got medico-legally examined.

ASI Pardeep Kumar stepped into the witness box as PW11 and corroborated

the version of the prosecution in material particulars.

14. The sole question that arises for consideration is that for first

five days, the appellant remained quite calm as he was busy in travelling

with the victim from one place to another as if he wanted to repose

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confidence in him that the victim was quite safe in his company. It was only

because of this reason that the journey performed by the appellant on

motor-cycle from Faridabad to Jaipur and back remained so hectic that he

could not avail an opportunity of doing illegal act. Even otherwise, in a

normal course, there must be a slight fear in the mind of the appellant that

the victim could elicit any incident that might be occurred with him on their

way to any one. This was the reason that he must have changed his thoughts

and ultimately, made up his mind to commit carnal intercourse on his return

journey in the jungle of Aherwan, District Palwal, the place with which he

must have acquainted. It has been established on the record that the victim

remained in the captivity of appellant for seven days. From this fact alone, it

can easily be inferred that a bad idea must have generated in the mind of the

appellant to commit unnatural intercourse with the victim, otherwise, there

was no reason to keep a child with him for seven days.

15. An argument that the prosecution did not associate independent

witnesses from the places where the appellant and the victim remained

halted during day and night, such as, owner of the Hotel in Jaipur, a scrap

vendor from Faridabad with whom the appellant took some money in the

presence of the victim, has no legs to stand, inasmuch as, the offence was

not committed in Jaipur or Faridabad on account of the fact that the

appellant wanted to show outwardly that the victim was not a stranger and

was not accompanying him unwillingly so that a finger of suspicion may not

arise upon him and by that time, the child remained quite innocent, not

knowing the monstrous trick created in his mind and remained in the

company of the appellant without protest, reposing faith in him, but the

appellant, on the other hand, cleverly wanted to give it a practical shape at

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once at a safer place and ultimately, he selected a solitary place in the

jungle of Aherwan, District Palwal and committed unnatural intercourse

with him. Therefore, there was no necessity for the prosecution to cite

witnesses from far away places such as clergy of a mosque and Kallu, the

brother of the appellant, being irrelevant. Moreso, it was not the case of the

defence that the victim did not remain in company of the appellant

throughout travelling from Faridabad to Jaipur and then back on a

motorcycle. As soon as a telephonic message received by the father of the

victim, he swung into action and rushed at the spot with the help of police

and got arrested him in the company of the victim.

16. The prosecution case is fully corroborated by the testimony of

PW7 Dr. Upender Bhardwaj and PW-12 Dr Mann Singh. PW12 Dr Mann

Singh examined the victim on the same day of his recovery. Lacerated

wound with muscle deep with irregular margin on the anal region and

multiple abrasions on the whole anal region clearly corroborates the ocular

evidence by the prosecution witnesses.

17 I have gone thorough the well reasoned judgment of the court

below and find no illegality therein that may warrant interference by this

court in exercise of revisional jurisdiction. That apart, in my considered

view, such types of persons who are demon by temperament on the earth

and harmful to the man kind must be dealt with severe hands and suitably

punished. Moreso, in the facts and circumstances of the case, the testimony

of the minor victim can not be doubted in any manner, inasmuch as his

statement has been tested on three occasions, firstly before the police under

section 161, the learned Illaqa Magistrate while recording his statement

under section 164, Code of Criminal Procedure, and then appearing in the

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witness box before the trial court as PW2. In such circumstances, it can

easily be concluded that there was no reason for the victim to implicate the

appellant falsely. The appellant did not lead any evidence in defence,

though opportunity was afforded to him to rebut the case of the prosecution

by producing his cogent and convincing evidence, but failed to do so.

18 In view of the foregoing reasons, I do not see any illegality or

perversity in the impugned judgment of Additional Sessions Judge,

Faridabad and as such, findings recorded therein are affirmed.

Consequently, revision, being without any merit, fails and is dismissed.

13th November, 2017 ( RAMENDRA JAIN )

1. Whether speaking/reasoned Yes/No

2. Whether Reportable Yes/No

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