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Balwan Singh vs State Of Haryana on 7 July, 2018

CRA-S-2091-SB-2013 (OM) -1-


CRA-S-2091-SB-2013 (OM)
Date of decision: 07.07.2018

Balwan Singh … Appellant


State of Haryana … Respondent


Present: Mr. Mohan Singla, Advocate (Legal aid counsel)
for the appellant.

Mr. Saurabh Giridhar, AAG, Haryana.


Anil Kshetarpal, J.(Oral)

The accused-appellant has been convicted under Sections 363,

366, 365, 376 and 506 IPC and sentenced as under:

Under Section 363 IPC R.I. three years and fine of Rs.1,000/-. In default to further
undergo R.I. for three months
Under Section 366 IPC R.I. five years and fine of Rs.1,000/-. In default to further
undergo R.I. for three months
Under Section 365 IPC R.I. five years and fine of Rs.1,000/-. In default to further
undergo R.I. for three months
Under Section 376 IPC R.I. ten years and fine of Rs.5,000/-. In default to further
undergo R.I. for six months
Under Section 506 IPC R.I. for six month

All the substantive sentences shall run concurrently.

The case set up by the prosecution as noticed by the learned

trial Court is extracted as under:

“The prosecution case, in brief, is that on
24.12.2011 complainant Devi Singh produced an
application to SI Parkash Chand PW-10 in the police
station Madhuban wherein it was mentioned that they

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are three brothers and three sisters and youngest is
prosecutrix {name withheld in view of Section 228-A of
IPC and judgment passed by the Hon’ble Apex Court in
case of State of Karnataka vs. Puttaraja, 2004(1) RCR
(Cri.) 113 SC)] aged about 13 years. Accused Balwan
Singh son of Ishar resident of Hariyapur District
Kurukshetra was mason, who had come for work about
6-7 months earlier and had been employed to raise
construction of the house of Hans Raj son of Baru Ram.
The house was constructed within three months and
thereafter Balwan took other similar work in the village.
Said Hans Raj arranged the house of Krishan son of Om
Parkash on rent for Balwan at his responsibility.
Accused Balwan was residing in the rented house
situated near the house of the complainant. In the
evening of 18.12.2011, after taking their dinner, they had
gone to sleep and in the morning at about 4-5 AM his
sister/prosecutrix was missing from the house. He made
search for her but of no avail and it was learnt that
accused Balwan was also not available to his house.

The complainant suspected that accused had exercised
undue influence on prosecutrix and had taken her away
while enticing her. On the basis of said application, a
case under Sections 363, 366A IPC was registered in the
police station and the investigation of this case was
handed over to SI Parkash Chand, who on the same day
along with complainant went to village Ucha Samana
and recorded statements of witnesses. On 25.12.2011 SI
Parkash Chand along with complainant, Phool Singh,
Krishni and other police officials went in search of
prosecutrix in a private vehicle. They searched her in
hotels situated on G.T. Road, Karnal. Thereafter, SI
Parkash Chand received information about the
prosecutrix and accused and then they reached at Pipli

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and found that accused Balwan and prosecutrix were
sitting under a tree in front of Bus Stand and they were
identified by Devi Singh and other witnesses. The
prosecutrix was taken into custody vide memo Ex.PK. SI
Parkash Chand recorded statements of witnesses under
Section 161 Cr.PC. Accused was formally arrested. The
statement of the prosecutrix under Section 161 Cr.PC
was also recorded. On the basis of said statement
offence under Section 376 IPC was added. The
Investigating Officer also prepared rough site plan
Ex.PL of the place of occurrence. On return to the
police, accused was put in police lock up and on the
same day, he was taken out from the police lock up and
accused as well as prosecutrix were medico-legally
examined from General Hospital, Karnal by moving
application Ex.PG. After medico-legally examination of
the prosecutrix, the doctor handed over sealed parcels
which were relating to accused were also taken into
police possession vide memo Ex.PA. The Investigating
Officer recorded statements of witnesses under Section
161 Cr.PC was got recorded from learned Magistrate by
moving application Ex.PN. Scaled site plan of the place
of occurrence was got prepared and after completion of
investigation, challan was presented against the

Prosecution has examined as many as 13 witnesses including

Dr. Prem Lata – PW-3, Prosecutrix – PW-11, Devi Singh, complainant –

PW-12 and Sh. Rajan Walia, Addl. Chief Judicial Magistrate,Karnal as


Learned trial Court noticed the above facts and convicted the


Learned counsel appearing for the accused-appellant has

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submitted as under :

Statement of the prosecutrix under Section 164 Cr.Pc was

recorded on 26.12.2011. Prosecutrix was first produced before Chief

Judicial Magistrate on 25.12.2011. When Chief Judicial Magistrate

observed that she is not normal, he ordered to produce her on the next day.

He submits that from the reading of aforesaid statement it is apparent that

she has specifically stated that accused-appellant did not commit any wrong

act with her. He further drew attention of the Court to the statement of

Dr. Prem Lata, who has been examined as PW-3. The relevant part of her

statement is extracted as under:

“The LMP was 10.12.2011, no external mark of fresh
injury was seen on her body. On examination of external
genital area no external mark of fresh injury was seen on her
breast and genital areas, pelvic region. The breast was well
developed, pubic hair and auxillary hair were also well

As per vagina examination, I found that the patient was
uncooperative, the hymen was absent, vagina admits one finger
easily. The patient was referred to radiologist and dental
surgeon for her age confirmation. The opinion was kept
pending till the result of FSL report.”

In the cross-examination, she admitted that as per FSL report,

no semen was detected on the clothes of the prosecutrix and accused.

Hence, he submits that prosecution has failed to prove its case

under Section 376 IPC. He has further submitted that even offence under

Sections 363, 366, 365 and 506 IPC are not made out as case of the

prosecution is that she was administered certain intoxicant and she became

unconscious and thereafter she was taken away whereas learned trial Court

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has found in para 27 of the judgment that the prosecution has failed to prove

what intoxicant was administered to the prosecutrix on the day when she

was allegedly kidnapped. He further drew attention of the Court to the

statement of the prosecutrix made before the Court wherein she admits that

she knows the appellant-accused. He has further drawn attention of the

Court to the fact that the appellant-accused and the prosecutrix were taken

in custody by the police, when they were sitting at Pipli under a tree in front

of bus shelter. He submits that it was a public place and there was no

evidence that prosecutrix was sitting with the accused against her wishes.

On the other hand, learned counsel for the State has submitted

that as per the evidence of teacher – PW-7, she was 13 years old and

therefore, even if, there is no evidence of rape or forcible sexual intercourse

but at least evidence of kidnapping has been proved and the incident is of

the night of 18/19.12.2011 and appellant-accused and prosecutrix were

recovered on 25.12.2011. Therefore, it is proved that she remained in

custody of the appellant-accused for almost 7 days.

This Court has considered the submissions of learned counsel

for the parties. As far as evidence of forcible sexual intercourse is

concerned, from the statement of prosecutrix under Section 164 Cr.PC,

evidence of Dr. Prem Lata and report of FSL, it is established that

prosecution has failed to lead any evidence beyond reasonable doubt to

prove the allegations of rape. Now let us examine whether appellant-

accused is guilty of offences under Sections 363, 366, 365 and 506 IPC. As

per the statement of PW-3 i.e. Dr. Prem Lata, prosecutrix was referred to

radiologist and dental surgeon for her age confirmation. Prosecution has

not produced either report of the radiologist or dental surgeon. Still further

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as noticed above, the appellant-accused and prosecutrix were known to each

other and were neighbours. Prosecution has also failed to prove as to where

prosecutrix was kept after kidnapping. The evidence led by the prosecution

is not sufficient to hold that the prosecutrix was kidnapped and confined

against her wishes. As regards age, no doubt School Leaving Certificate

has been produced, however, no explanation is forthcoming as to why the

report of radiologist or dental surgeon has not been produced before the

Court. Non-production of the aforesaid evidence creates a doubt about the

genuineness of the case. Prosecution is required to prove the case beyond

any reasonable doubt.

In the present case taking into consideration the entire evidence

produced and discussed above, this Court is of the considered opinion that

the prosecution has miserably failed to prove the case beyond reasonable

doubt. Hence, the judgment under appeal is set aside and the appellant is

given the benefit of doubt.

The present appeal is allowed.

07.07.2018 (ANIL KSHETARPAL)
sonia JUDGE

Whether speaking/non-speaking? Yes/No
Whether reportable? Yes/No

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