CRA-S-2117-SB-2012 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CRA-S-2117-SB-2012 (OM)
Date of Decision: November 24, 2017
Manoj Kumar and another
…Appellants
Versus
State of Haryana
…Respondent
CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR
Present:- Mr. Ashwani Bhardwaj, Advocate
or the appellants.
Ms. Gaganpreet Kaur, AAG Haryana.
********
JAISHREE THAKUR, J.
This is a criminal appeal filed against the judgment dated
20/23.04.2012 passed by the Additional Sessions Judge (Fast Track Court)
Narnaul, whereby, the appellants have been convicted and sentenced to
undergo rigorous imprisonment substantially for a period of 07 years and to
pay fine under Sections 363, 366-A, 376, 120-B of Indian Penal Code.
2. In brief, the facts of the case are that complainant-Chokhi Devi
by an application dated 30.08.2011 informed ASI Ramesh Chand that she
was having three sons and two daughters. On 29.08.2011, she and her
children went to sleep, after having taken a meal and when she woke up at
night around 2.00 p.m., she found that her daughter, aged 13 years, was not
available in the house. At that time itself, she brought this fact to the notice
1 of 8
25-11-2017 01:12:19 :::
CRA-S-2117-SB-2012 -2-
of her neighbourers and she along with them looked for her at the railway
station and at the bus stand. In the complaint, she mentioned that one Sanoj
son of Bhagtu with the help of his brother Manoj had enticed away her
daughter and Manoj would know the whereabout of her daughter and Sanoj.
It was further mentioned that her daughter had also taken away Rs.20,000/-
and gold ornaments. On the basis of said complaint, an FIR Ex.PB was
registered against the appellants Sanoj and Manoj. During the course of
investigation, appellant No.1-Manoj was arrested and on the basis of
disclosure statement suffered by him, the prosecutrix was recovered from
the custody of Sanoj from Village Sewapur Kamal. She was medically
examined and her statement under Section 164 Cr.P.C. was got recorded
from CJM Narnaul and based on the statement and conclusion of
investigation, both the appellants were sent by the police to stand for trial
for committing the offence under Sections 363, 366-A, 376, 120-B of Indian
Penal Code.
3. Finding a prima facie case under Sections 363, 366-A, 376,
120-B of Indian Penal Code, the appellants were charge-sheeted
accordingly, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has examined as
many as 18 witnesses. LC Sunita appeared as PW1, SHO SI Partap Singh
appeared as PW2, ASI Lal Chand appeared as PW3, ASI Mahesh Kumar
appeared as PW4, ASI Ramesh Chand appeared as PW5, ASI Kapoor Singh
appeared as PW6, LC Savita appeared as PW7, ASI Virender Singh
appeared as PW8, Dr. Pradeep Yadav appeared as PW9, HC Jai Bhagwan
appeared as PW10, Chuki Devi appeared as PW11, Setha Ram appeared as
2 of 8
25-11-2017 01:12:20 :::
CRA-S-2117-SB-2012 -3-
PW12, Dr. Vandana Yadav appeared as PW13, prosecutrix appeared as
PW14, Hanuman appeared as PW15, Dr. Aggarwal appeared as PW16, Dr.
Chanderhass CJM, Narnaul appeared as PW17, ASI Babulal appeared as
PW18 and thereafter, the prosecution evidence was closed.
5. Statement of the appellants were recorded under Section 313
Cr.P.C. in which they stated that they are innocent and have been falsely
implicated in this case.
6. Based on the statement of the prosecutrix, her parents and
medical evidence on the record, the Additional Sessions Judge, Narnaul
convicted the appellants under Sections 363, 366-A, 376, 120-B of Indian
Penal Code and sentenced them; to undergo rigorous imprisonment for a
period of 04 years and to pay a fine of Rs.1000/- each under Section 363
IPC and in default of payment of fine, to undergo further imprisonment for a
period of three months; to undergo rigorous imprisonment for a period of 07
years and to pay fine of Rs.2000/- each under Section 366-A IPC and in
default of payment of fine, to undergo further imprisonment for a period of
four months; to undergo rigorous imprisonment for a period of 07 years and
to pay a fine of Rs.2000/- each under Section 376 IPC and in default of
payment of fine, to undergo further imprisonment for a period of four
months; to undergo rigorous imprisonment for a period of 02 years and to
pay a fine of Rs.1000/- each under Section 120-B IPC and in default of
payment of fine, to undergo further imprisonment for a period of three
months. It is this judgment that has been assailed in the instant appeal.
7. Custody certificates of the appellants were filed, which goes on
to show that both the appellants have been released from jail on 07.12.2016
3 of 8
25-11-2017 01:12:20 :::
CRA-S-2117-SB-2012 -4-
and 03.02.2017 respectively after completion of their sentence.
8. Learned counsel appearing on behalf of appellants at the very
outset submitted that he does not press the instant appeal qua appellant
No.2-Sanoj, however, while assailing the judgment qua appellant No.1-
Manoj, learned counsel argued that the prosecutrix had varied her statement
on several occasions. It is submitted that in her statement recorded under
Section 161 Cr.P.C. the prosecutrix has not levelled any allegation of rape
against appellant No.1-Manoj and it is only subsequent thereto that an
improvement has been made in her testimony, which would show that he
had been falsely implicated. It is also argued that till the initial statement
that has been recorded under Section 161 Cr.P.C. on 08.09.2011, she had
only named Sanoj as a person, who had committed the offence of rape and
subsequently taken her to Bihar. It is contended that the prosecutrix also
did not raise any alarm, while she was being taken from Rewari to Bihar and
that would be sufficient to show that she had gone willingly. It is further
argued that appellant No.1-Manoj has wrongly been convicted, therefore, he
is liable to be acquitted from all the charges levelled against him.
9. Per contra, learned counsel appearing on behalf of the
respondent-State vehemently opposed the arguments addressed by learned
counsel for appellant No.1-Manoj. He argued that there has been a
categorical averment by the prosecutrix in her statement recorded under
Section 164 Cr.P.C. before CJM Narnaul on 08.09.2011, that both Manoj
(appellant No.1) and Sanoj (appellant No.2) had given her intoxicant
substance, which made her unconscious and thereafter, both Manoj and
Sanoj had raped her. Therefore, he prayed that the instant appeal should
4 of 8
25-11-2017 01:12:20 :::
CRA-S-2117-SB-2012 -5-
be dismissed and the conviction/sentence should be maintained.
10. I have heard learned counsel for the parties.
11. During the course of arguments, learned counsel for appellant
No.1-Manoj has tried to question the very statement of the prosecutrix,
claiming that there is material improvement that has been made by the
prosecutrix in her two statements. Out of these statements, one has been
recorded by the Investigating Officer under Section 161 Cr.P.C. and the
other one has been recorded by CJM, Narnaul under Section 164 Cr.P.C.
and both of them have been dated 08.09.2011. In simple words, this court
has to weight the evidentiary value of both of these statements of the
prosecutrix, while taking into consideration the statement that has been
recorded during the course of evidence.
12. While stepping into the witness box as PW14, the prosecutrix
in her testimony has stated that she is illiterate girl residing in Huda Narnaul
along with her family members. She went along with Sanoj and Manoj and
her family members for work as daily labourer. At about 10.00 p.m. both
Sanoj and Manoj came to her house and gave her ‘dew’ cold drink and after
drinking it, she felt giddy. She was taken by both Sanoj and Manoj to their
slum (house) where, Manoj took out her cloths and raped her and
subsequently, Sanoj raped her as well. After that Manoj threatened her that
if she will tell about this incident to anyone then he would kill her family
members. Both Sanoj and Manoj took her to Rewari in a vehicle from
where Manoj told Sanoj that Sanoj should take the prosecutrix further, and
he would try to manage other things. Sanoj took her from Rewari railway
station to Bihar and in Bihar, Sanoj took her to slum adjoining railway line
5 of 8
25-11-2017 01:12:20 :::
CRA-S-2117-SB-2012 -6-
and raped her. Thereafter, police recovered her and arrested Sanoj. Police
brought her back to Narnual and she was medically examined at GH
Narnaul by the police. Police brought her to court where, her statement was
recorded. When her statement recorded by Magistrate under Section 164
Cr.P.C. was shown to her, she stated that the said statement was made by
her to the Magistrate without any pressure and undue influence, which bears
her thumb impression. She was again medically examined at Gurgaon.
13. In her statement that was recorded by the Investigation Officer
under Section 161 Cr.P.C. on 08.09.2011, no doubt the prosecutrix did not
name appellant No.1-Manoj as a person, who has committed rape upon her.
However, in her statement that was recorded under Section 164 Cr.P.C. by
the Magistrate on 08.09.2011 itself, she named both Sanoj and Manoj, as
the persons who have committed rape upon her, apart from narrating the
other episodes of giving intoxicant substance to her and how she was taken
to Rewari and thereafter to Bihar. The allegations, which she had levelled
against both the appellants in her statement recorded under Section 164
Cr.P.C., she deposed on the similar lines while she appeared in the witness
box as PW14.
14. Admittedly, the prosecutrix herein is a minor girl, who had
categorically stated that she is an illiterate girl and daughter of a daily
labourer. She deposed that she knew both Manoj and Sanoj and they also
work as daily labourer along with her parents. She in no certain terms
stated that she had been given ‘Dew’ cold drink by both the appellants and
after consuming the same, she became giddy and unconscious and narrated
that it is thereafter a wrongful act had been done to her. The expression that
6 of 8
25-11-2017 01:12:20 :::
CRA-S-2117-SB-2012 -7-
“wrongful act was done to her” would signify that she had been subjected to
rape. This conclusion was arrived at by referring to the medical available
on the record, duly proved by PW13 Dr. Vandana Yadav, who her
statement has categorically stated that sexual assault on the prosecutrix
cannot be ruled out.
15. The testimony of the prosecutrix as PW14 and statement
recorded by the Magistrate under Section 164 Cr.P.C. clearly substantiate
the fact that both the appellants have subjected her to rape. So far as the
question of statement that was recorded under Section 161 Cr.P.C. is
concerned, it does not bear the signatures of the prosecutrix and this fact has
rightly been noticed by the trial court. Further, during the examination-in-
chief of prosecutrix, which was recorded while she appeared as PW14, the
prosecution has not relied upon or referred to the said statement recorded
under Section 161 Cr.P.C. However, during cross-examination when the
prosecutrix was confronted with her statement that was recorded under
Section 161 Cr.P.C. Ex.DA, she categorically mentioned that she had stated
before the police and Magistrate that at about 10.00 p.m. Sanoj and Manoj
came to her house and gave her dew cold drink and after drinking it, she felt
giddy. She further mentioned that she had stated before the police and
Magistrate that when she started feeling giddy, Sanoj and Manoj took her in
their slum, where Manoj took out her clothes and raped her. During her
cross-examination, she stated that appellants Manoj and Saroj known to her
from last two years and they occasionally visits her house. Earlier also
Sanoj and Manoj used to give her eatable things like Samosa etc. She
categorically stated that at that time appellants Manoj and Saroj offered her
7 of 8
25-11-2017 01:12:20 :::
CRA-S-2117-SB-2012 -8-
cold drink, when all her family members were sleeping. Therefore, the
argument as raised by learned counsel for appellant No.1-Manoj that he is
not guilty of the offence as his name does not figure in the statement that
was recorded under Section 161 Cr.P.C., would have no substance. This
court has thoroughly gone through the cross-examination of prosecutrix, but
this court does not find any substance which would go in favour of
appellant No.1.
16. In view of the above discussion, this court is of the considered
view that learned counsel for appellant No.1-Manoj has failed to point any
illegality or perversity in the judgment and order of conviction that has been
passed by the trial court. The material available on record is sufficient to
hold that the appellants are guilty of the offences, as alleged against them.
Accordingly, the appeal in hand is hereby dismissed, being devoid of any
merits.
(JAISHREE THAKUR)
November 24, 2017 JUDGE
vijay saini
Whether speaking/reasoned Yes
Whether reportable Yes/No
8 of 8
25-11-2017 01:12:20 :::
