CRA-D-271-DB of 2005 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

(1) CRA-D-271-DB of 2005

Anup alias Sonu
…. Appellant

Versus

State of Haryana
….. Respondent

(2) CRA-S-781-SB of 2005

Ramesh
…. Appellant

Versus

State of Haryana
….. Respondent

Reserved on : 11.02.2020
Date of decision : 02.03.2020

CORAM :- HON’BLE MR. JUSTICE RAJIV SHARMA
HON’BLE MR. JUSTICE HARINDER SINGH SIDHU

Present: Mr. A.P.S. Deol, Senior Advocate (amicus curiae), with
Mr. Vishal Rattan Lamba, Advocate,
for the appellants.

Mr. Vivek Saini, Deputy Advocate General, Haryana.

***

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RAJIV SHARMA, J.

1. Since common questions of law and facts are involved in both

these appeals, i.e. CRA-D-271-DB-2005 and CRA-S-781-SB-2005,

therefore, these are taken up together and being disposed of by a common

judgment.

2. These appeals are instituted against the judgment dated

03.03.2005 and order dated 07.03.2005, rendered by learned Additional

Sessions Judge, Rohtak, in Sessions Case No. 16/2994 dated 11.06.2004.

Appellants Anup alias Sonu and Ramesh were charged with and tried for the

offences punishable under Sections 363, 366, 376 and 376 (2) (g) IPC.

Appellant Ramesh was acquitted of the charge under Section 363 IPC and

both the appellants were acquitted of the charge under Section 376 (2) (g)

IPC. Appellant Ramesh was convicted and sentenced under Section 366 IPC

to undergo rigorous imprisonment for seven years and to pay a fine of `

5,000/-, and in default of payment of fine to further undergo rigorous

imprisonment for one year. Appellant Anup alias Sonu was convicted and

sentenced under Section 376 IPC to undergo rigorous imprisonment for

fourteen years and to pay a fine of ` 10,000/-, and in default of payment of

fine to further undergo rigorous imprisonment for two years.

3. The case of the prosecution, in a nutshell, is that complainant

Nirmala met Assistant Sub Inspector Daya Nand on 18.04.2004. She

submitted an application Ex.P12 before him. According to the averments

made in the complaint, the prosecutrix was her daughter. She was aged 18

years. She was studying at Shiv Dharam Girls Senior Secondary School,

Rohtak. On 14.04.2004, the prosecutrix went to Rohtak on the pretext of

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getting the scholarship. She advised the prosecutrix to take her grand-father

along with her. However, the prosecutrix obtained money from her grand-

father and went alone. She followed her upto bus stand of village Kabulpur.

When her daughter boarded the bus, accused Ramesh also boarded the bus.

Her daughter did not come back. In the evening, she went to her brother-in-

law Ashok at Arya brick-kiln Ladhot. She narrated the entire story to him.

He told that on the previous day, at about 10.00 AM, the prosecutrix met

him along with accused Ramesh at Sukhpura Chowk, Rohtak. The FIR was

registered vide Ex.P13. The investigation was completed and challan was

put up after completing all the codal formalities.

4. The prosecution examined a number of witnesses in support of

its case. The accused were also examined under Section 313 Cr.P.C. They

denied the case of the prosecution. According to them, they were falsely

implicated. The accused were convicted and sentenced, as noticed here-in-

above. Hence, these appeals.

5. Learned counsel appearing on behalf of the appellants has

vehemently argued that the prosecution has failed to prove its case against

the appellants. Learned counsel appearing for the State has supported the

judgment and order of the learned Court below.

6. We have heard learned counsel for the parties and gone through

the judgment and record very carefully.

7. PW.1 Dr. Kul Partibha medico legally examined the prosecutrix

on 19.04.2004. In her opinion, FSL report showed that the possibility of

sexual inter-course in this case could not be ruled out, because semen was

detected on the salwar and underwear of the male person. In her cross-

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examination, she deposed that mother of the prosecutrix told the age of the

prosecutrix as 17 years and the prosecutrix told her age to be 18 years.

8. PW.2 Dr. Gajender Singh medico legally examined Anup alias

Sonu. According to him, Anup was not unable to perform sexual inter-

course.

9. PW.9 is the prosecutrix. According to her, on 14.04.2004, she

had gone to take scholarship. She was with accused Ramesh. Ramesh told

her that she would get a scholarship. When they were present at Sukhpura

Chowk, her uncle Ashok met them. He gave her ` 50/-. Accused Ramesh

assured her to leave at her house after taking scholarship. Accused Ramesh

told her that Anup had called. Thereafter, accused Ramesh enticed her and

took her to Anup at Safidon. Ramesh left her with Anup and came back.

Thereafter, she stayed on 14/15.04.2004 at the house of accused Anup.

Anup brought her to the bus stop of village Ritoli. Thereafter, he took her to

a kotha (room) near bus stop situated in the fields of village Ritoli at about

8.00 PM. He did wrong act with her by force. Thereafter, they came back to

Rohtak. She was kept at Railway Station, Rohtak. He again took her to

Safidon in the train. On 17.04.2004 and 18.04.2004, he again did wrong act

with her at Safidon. They came to Sunaria Chowk, Rohtak. Thereafter, she

went to her home. She was medically examined. In her cross-examination,

she deposed that they had gone from Rohtak to Ritoli on 16.04.2004. From

5.30 PM to 8.00 PM, they remained at Rohtak. No body met them during

this period. There were so many passengers in the bus, when they went to

Ritoli. Her co-villagers were also present in the bus. They came back to

Rohtak in auto rickshaw. They had gone to Court at Safidon but the accused

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had taken her against her wishes. She did not meet any advocate there.

Many advocates were present. General public was also present. Her

photographs were taken in a temple. The room at Ritoli was at a distance of

about 6/7 acres from the road. She did not resist because the accused had

threatened to kill her brother. On 19.04.2004, they started from Safidon for

Rohtak at about 9.00 AM. They reached Rohtak at about 1.00 PM. Her date

of birth in Matriculation certificate was 02.02.1986, but actual date of birth

was 25.09.1986.

10. PW.10 Nirmala is the mother of the prosecutrix. She deposed

that the prosecutrix took money from her grand-father for going to Rohtak

to get scholarship. She asked the prosecutrix to go with her grand-father.

However, the prosecutrix replied that she would go all alone. The

prosecutrix came to Rohtak. She followed her upto bus stop Kabulpur.

Accused Ramesh and the prosecutrix boarded a bus. She waited for her

daughter till the evening. When she did not return, she informed Ashok. In

her cross-examination, she deposed that her marriage took place about

20/22 years ago. The prosecutrix was born after one year of the marriage.

11. PW.11 Ashok testified that on 14.04.2004, he saw the

prosecutrix at Sukhpura Chowk. Accused Ramesh was present with her. She

demanded some money. He gave her ` 50/-. In the evening, he received a

telephonic message that the prosecutrix had not reached the house. Then he

told the family members that the prosecutrix had met her at Sukhpura

Chowk. They reported the matter to the police on 18.04.2004. The

prosecutrix met them on 19.04.2004.

12. PW.12 Dayanand ASI deposed that PW Nirmala met him on

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18.04.2004. She submitted an application Ex.P12. He recorded the

statement of PW Ashok Kumar and Har Bhagat. On 19.04.2004, he went to

village Kabulpur. While coming back, they were present at Sunaria Chowk.

PW Phool Kumar and Santosh pointed out towards a boy and a girl standing

at a distance of about 20 paces. They told that the girl was their daughter

and the boy was Anup. However, accused Anup ran away. Statement of the

prosecutrix was recorded. They went to the fields of Ritoli. He inspected the

spot. Thereafter, they came to General Hospital, Rohtak and got the

prosecutrix medically examined. On 20.04.2004, the radiological

examination of the prosecutrix was got done. Both the accused were

arrested on 20.04.2004 on the basis of secret information. They were

interrogated. Accused Anup made disclosure statement to the effect that on

16.04.2004, he committed an illegal act with the prosecutrix in a room

situated in the fields of Ritoli. Both the accused were also medically

examined.

13. DW.1 Sandeep Kumar deposed that he knew accused Anup. He

was employed as a security guard at Hanuman Rice Mills, Safidon. The

prosecutrix came to Anup on 14.04.2004. She was saying that she was

willing to marry accused Anup. However, her family members were

annoyed. She disclosed her age to be 18 years. She had shown her

Matriculation certificate Ex.D4. Thereafter, they went to a temple on

15.04.2004. Marriage was performed in the temple. Photographs were also

taken.

14. DW.2 Narender Kumar had taken the photographs. The

photographs are Ex.D4 to Ex.D8.

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15. DW.3 Kaptan Singh deposed that on 15.04.2004, the

prosecutrix purchased stamp paper from him as per Serial No. 452-53 in his

register Ex.D17. She also put her signatures against this entry.

16. DW.4 Rampal testified that he was present in his fields during

the intervening night of 15/16.04.2004. No body came to his room in the

fields on that night. He had heard that the prosecutrix had eloped, but he did

not know the name of the person, with whom she had gone.

17. The FSL report is Ex.P2. According to it, human semen was

detected on exhibit-1a (Salwar), exhibit-2a (Swab) and exhibit-3

(underwear). However, semen could not be detected on rest of the exhibits.

18. The case of the prosecution is that at one place in the MLR

Ex.P1, age of the prosecutrix was shown as 17 years and at another place, it

was shown as 18 years. According to PW.1 Dr. Kul Partibha, mother of the

prosecutrix told the age of the prosecutrix as 17 years. However, the

prosecutrix disclosed her age to be 18 years. In application Ex.P12, the

complainant mentioned the age of the prosecutrix to be 18 years. The

prosecutrix, while appearing as PW.9, admitted that as per her Matriculation

certificate, her date of birth was 02.02.1986. According to the ossification

test Mark B, age of the prosecutrix was between 17 to 19 years. Thus, the

learned trial court has rightly come to the conclusion that age of the

prosecutrix was 18 years at the time of the incident.

19. According to the statement of PW.10 Nirmala, mother of the

prosecutrix, her daughter had gone to Rohtak along with Ramesh on

14.04.2004. She did not come till the evening. Thereafter, she informed

Ashok, uncle of the prosecutrix. PW.11 Ashok deposed that he had seen the

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prosecutrix on 14.04.2004 at Sukhpura Chowk with accused Ramesh. He

gave ` 50/- to her.

20. PW.1 Dr. Kul Partibha deposed that possibility of sexual inter-

course could not be ruled out, because semen was detected on the salwar of

the prosecutrix and underwear of the male person. The statement of the

prosecutrix, who appeared as PW.9, is material. According to her, she was

enticed by accused Ramesh and left with accused Anup. She had stayed on

14/15.04.2004 at the house of Anup. Thereafter, Anup brought her in the

bus to village Ritoli. He committed wrong act with her. Thereafter, they

came to Rohtak. He again took her to Safidon in the train and committed

wrong act with her at Safidon. In her cross-examination, she admitted that

there were many passengers in the bus, when they went to Ritoli. Co-

villagers were also in the bus. They came to village Ritoli in auto-rickshaw.

Surprisingly, she did not raise any alarm, when she was travelling in bus or

in train. She could at least tell the co-villagers while travelling in the bus

about the incident. She remained with the accused from 14/15.04.2004 till

19.04.2004. She had also not raised alarm, when she was residing in the

house at Safidon. It can be inferred that she had gone willingly with the

accused.

21. DW.1 Sandeep Kumar has deposed that the prosecutrix had met

him and shown her willingness to marry Anup. Her marriage was performed

in the temple. DW.2 Narender Kumar had taken the photographs Ex.D4 to

Ex.D8. DW.3 Kaptan Singh deposed that the prosecutrix had purchased

stamp paper from him on 15.04.2004 as per Serial No. 452-53. This was a

consensus act.

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22. Their Lordships of the Hon’ble Supreme Court in Mukesh Vs.

State (NCT of Delhi) and others, 2017 (6) SCC 1, have held that onus of

proving guilt is always on prosecution and never shifts even in rape cases.

Their Lordships have held as under :-

“382. In a case of rape, like other criminal cases,
onus is always on the prosecution to prove
affirmatively each ingredient of the offence. The
prosecution must discharge this burden of proof
to bring home the guilt of the accused and this
onus never shifts. In Narender Kumar v. State
(NCT of Delhi) (2012) 7 SCC 171 it was held as
under :

“29. However, even in a case of rape, the
onus is always on the prosecution to prove,
affirmatively each ingredient of the offence
it seeks to establish and such onus never
shifts. It is no part of the duty of the
defence to explain as to how and why in a
rape case the victim and other witnesses
have falsely implicated the accused. The
prosecution case has to stand on its own
legs and cannot take support from the
weakness of the case of defence … There is
an initial presumption of innocence of the
accused and the prosecution has to bring
home the offence against the accused by
reliable evidence. The accused is entitled
to the benefit of every reasonable doubt.”

23. The prosecution has failed to prove its case against appellants

beyond reasonable doubt.

24. Accordingly, both the appeals are allowed. The impugned

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judgment dated 03.03.2005 and order dated 07.03.2005 rendered by the

learned trial court are set aside. The appellants are acquitted of the charges

framed against them. They are on bail. Their bail bonds and surety bonds

are discharged.

( RAJIV SHARMA )
JUDGE

March 02, 2020 ( HARINDER SINGH SIDHU )
ndj JUDGE

Whether speaking/reasoned Yes
Whether Reportable Yes

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