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 would6 of 10
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Crl. Revision No. 2847 of 2017 7not 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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