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Naveen vs State Of Haryana on 5 October, 2018

CRA-S-390-SB-2018 (OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRA-S-390-SB-2018 (OM)
Date of decision:-5.10.2018

Naveen

….Appellant

Versus

State of Haryana

….Respondent

CORAM : HON’ BLE MR. JUSTICE H.S. MADAAN

Present : Mr.Shashikant Gupta, Advocate for
Mr.Kanhiya Soni, Advocate
for the appellant.

Mr.Gaurav Bansal, AAG, Haryana.

****

H.S. MADAAN, J.

Accused Naveen faced trial by learned Additional Sessions

Judge(Exclusive Court), Bhiwani, who vide judgment dated 10.1.2018

convicted him for the offences under Sections 376(2)(n)/450 IPC and

vide order 11.1.2018, he was sentenced as under:

Under Section Sentence Awarded
376(2)(n) IPC Rigorous imprisonment for ten years and to pay a

fine of Rs.10,000/- and in default thereof, to
further undergo rigorous imprisonment for one
year.

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450 IPC Rigorous imprisonment for three years and to pay
a fine of Rs.1,000/- and in default thereof, to
further undergo rigorous imprisonment for three
months

Both the sentences were ordered to run concurrently.

The accused-convict – Naveen, who is appellant before this

Court prays that the appeal be accepted, the impugned judgment of

conviction and order of sentence passed against him be set aside and he

be acquitted of the charge framed against him.

Briefly stated, the facts of the case, as per the prosecution

story, are that on 8.8.2017, the prosecutrix (name withheld to protect her

identity in view of Section 228-A IPC and as per the directions given by

the Hon’ble Apex Court Court in case titled State of Karnataka Vs.

Puttaraja, 2004(1) RCR(Cri.) Supreme Court, 113 (SC) and referred to

as the prosecutrix) accompanied by Sagarmal son of Dhyan Chand,

resident of Ward No.6, Bawani Khera, District Bhiwani went to Police

Station Women, Bhiwani and submitted a written complaint there,

alleging therein that she is aged about 28 years and resident of Ward

No.6, Bawani Khera; that on 8.5.2017 at about 11:15 p.m., Naveen son

of Satyawan, resident of village Khanak trespassed in her house and

committed rape upon her by use of force; that on subsequent occasions

also, he had been raping her repeatedly on the promise of performing

marriage with her, however, when she asked him to marry her, he

refused to do so, rather threatened that if she disclosed the incident to

anybody, he would kill her.

On the basis of that complaint, formal FIR was registered.

Investigation in the case started. During the course of investigation,

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accused was arrested in this case. Statements of witnesses were

recorded. After completion of investigation and other formalities,

challan against the accused was prepared and filed in the Court of

learned Judicial Magistrate Ist Class, Bhiwani.

On presentation of challan in the Court of learned Judicial

Magistrate Ist Class, Bhiwani, she supplied copies of documents relied

upon in the challan to the accused free of costs as provided under

Section 207 Cr.P.C. Then finding that the offence under Section

376(2)(n) IPC is exclusively triable by Court of Sessions, learned

Judicial Magistrate Ist Class, Bhiwani committed the case to the Court

of learned Sessions Judge, Bhiwani from where it was entrusted to the

Court of learned Additional Sessions Judge(Exclusive Court), Bhiwani.

On receipt of case in the Court, learned Additional Sessions

Judge(Exclusive Court), Bhiwani observing that prima facie charge for

offences under Sections 376(2)(n)/450/506 IPC was disclosed against

the accused, he was charge-sheeted accordingly, to which, he pleaded

not guilty and claimed trial.

During the course of its evidence, the prosecution examined

as many as eleven witnesses namely Laxmi Devi as PW1, Dharmender,

Draughtsman as PW2, Constable Rajesh as PW3, HC Virender as PW4,

SI Lok Ram as PW5, Illaqa Magistrate, Bhiwani as PW6, the

prosecutrix as PW7, Dr.Rakesh Arora as PW8, Sagarmal as PW9, ASI

Dharmli as PW10 and Dr.Priyanka Kadian as PW11.

With that the prosecution evidence got concluded.

Statement of the accused was recorded under Section 313

Cr.P.C., in which all the incriminating circumstances appearing against

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him were put to such accused but he denied the allegations contending

that he is innocent and had been falsely involved in this case.

Accused did not lead any evidence in his defence.

After hearing arguments, learned trial Court convicted and

sentenced the accused as mentioned above, which left him aggrieved

and he has filed the present appeal.

I have heard learned counsel for the appellant – accused –

convict, learned AAG for the State of Haryana besides going through

the record.

The prosecutrix in this case is aged about 28 years, as such

a mature woman. From the record, it comes out that she was having an

affair with the accused, since according to her the accused had promised

to marry her but later on he refused and he had been committing sexual

intercourse with her on the pretext of marriage, which he ultimately

refused. The facts and circumstances of the case show that she was a

consenting party. The period during which the prosecutrix was allegedly

raped by accused happens to be w.e.f. 8.5.2017 to 9.7.2017. She had

lodged report with the police on 8.8.2017 i.e. after about a month. No

satisfactory or plausible explanation for such delay has been furnished,

which itself puts a big question mark over the credibility of the case of

the prosecution. It is certainly not a case of accused having sexual

intercourse with the prosecutrix against her wishes, since the medical

evidence does not corroborate the version of the prosecutrix in that

regard. If we see the written complaint submitted by the prosecutrix to

the police, she has alleged use of force by the accused while having

sexual intercourse with her on the first occasion i.e. on 8.5.2017,

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whereas regarding subsequent occasions, she has not given the details

thereof, rather the allegations are quite general lacking material details

as to on which dates thereafter, the accused had sexual intercourse with

her and the places where it was so done.

As regards such allegations of committing rape on

subsequent occasions, it is stated that it was so done on the pretext of

performing marriage with her, that means no use of force on the part of

the appellant/accused is alleged.

PW11 Dr.Priyanka Kadian, who had medico legally

examined the prosecutrix on 8.8.2017 did not find any mark of injury on

inner side of thighs and no external injury or tenderness was seen, that

means it is certainly not a case of sexual intercourse by use of force

otherwise some signs or marks of external injury would have definitely

been there.

In Pratap Misra and others Versus State of Orissa, 1977

AIR(SC) 1307 , it has been observed that when in a rape case in terms of

the medical evidence, no injuries had been found on the person of the

prosecutrix or the accused, that led to the inference that the prosecutrix

was a consenting party. In Gokul Versus State of Uttar Pradesh, 2003

Cri.L.J. 1110 High Court of Allahabad in para No.9 has observed as

under:

It is further pertinent, to find out that there is no physical

evidence to support the contention of rape (forcible sexual

intercourse) having been committed on her. She said that

she had been dragged and thrown on the ground behind the

bushes where the appellant forcibly did sexual act with her.

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She , according to her, kept struggling to extricate herself

from the clutches of the appellant, but all in vain. Her

medical examination report states that she did not suffer

any injury on any part of her body. She claimed that she

suffered bruises and her bangles had been broken down,

pricking in her wrists. But no abrasion or bruises were

found on her body. The medical examination report

completely negatives the application of any force on her,

which would have been the case if she had forcibly been

subjected to sexual intercourse. Moreover, her version is

that two witnesses, namely, Shyam Lal PW2 and Chauda

PW3 were attracted tot he scene who had witnessed the

incident. They allegedly challenged the appellant who ran

away. But these witnesses have not supported the

prosecution case. Shyam Lal PW2 stated that prosecutrix

had also gone to the market but he had turned back all

alone without having witnessed anything in the way. When

the Investigating Officer visited the spot he did not find any

broken pieces of bangles. It may be relevant to state that

under ordinary circumstances, it is not possible for a single

man to rape an adult female in full possession of her sense

without any resistance at all. When subjected to forcible

sexual intercourse, the victim is likely to offer resistance

resulting in some injury in the form of bruises, abrasions,

etc., Indeed, that would offer physical evidence regarding

the incident which is missing in the present case.

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There is solitary statement of the prosecutrix in this case

with regard to allegations of rape against the appellant. Though as per

law conviction can be based upon solitary statement of the victim in a

rape case, however, that statement should be blemish free and not

surrounded by any suspicious circumstance. Here in the present case,

certainly the testimony of the prosecutrix is not of that type.

As regards the report of FSL, PW11 Dr.Priyanka Kadian,

Medical Officer, who had medico legally examined the prosecutrix

admitted in her cross-examination that medical examination of the

prosecutrix was conducted after about one month of the alleged

occurrence and the clothes have been changed by the prosecutrix within

one month many times and she has taken bath also. She conceded that it

is highly probable that the clothes taken by her at the time of

examination were not worn by the prosecutrix at the time of alleged

occurrence. Therefore, report from FSL detecting human semen on

Ex.P1 i.e. underwear of the prosecutrix does not help the prosecution

much in advancing its case.

The cross-examination of the prosecutrix is very revealing

in which she stated that she was married with Raj Kumar 14-15 years

back and she had got three children, eldest being son aged about 15

years, then another son aged about 14 years and youngest daughter aged

about 11 years. She further admitted it as correct that she has lodged a

criminal case against Narender under Section 376 IPC for not marrying

her and making physical relations with her and Narender lived with her

for about two years. She stated that SHO Police Station, Bawani Khera

got them exchanged the garlands and directed them to get married in a

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Mandir near Delhi. It is difficult to understand how a married woman

having teenage children can possibly marry the accused during

subsistence of her first marriage with Raj Kumar since the prosecutrix

has no where stated that she had been divorced by her first husband. It

being so, there was no occasion for the appellant to have sex with the

prosecutrix on the promise of getting married with her. The complainant

added another angle to the story when in her cross-examination, she

stated that SHO Bawani Khera got her and the accused exchanged the

garlands and directed to get married in a Mandir near Delhi. SHO could

not have got the illegal act done asking the prosecutrix and the accused

get married during subsistence of first marriage of the prosecutrix. Even

if it was so done that does not confer the status of wife of the accused

upon the prosecutrix. The admission on the part of the prosecutrix that

she had been residing with one Narender for two years and then she had

lodged a complaint against him goes to show that she is in habit of

lodging such type of complaints and rather indulging in blackmailing, as

it comes out that she had been residing with live-in relationship with the

appellant, which though not has been given social approval so far but is

a known fact. If we see statement under Section 164 Cr.P.C. of the

prosecutrix in which she had stated that accused Naveen had been on

visiting terms with her; on 8.5.2017, he came to her and had sexual

intercourse with her, which she opposed stating that he could do after

marriage, then accused stated that he was ready to marry her; that he

resided in her house for three months but subsequently refused to marry

her.

As already discussed, the prosecutrix a married woman had

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been indulging in wrongful activities, keep the appellant in her house, of

course in a live-in relationship when during the subsistence of her

marriage with Raj Kumar and then lodging FIR. How could the accused

be punished for not doing what could not be legally done by him, that is

of marrying of the prosecutrix during subsistence of her first marriage

with Raj Kumar. If we see further cross-examination of the prosecutrix,

that further damages the case of the prosecution. She stated that accused

Naveen lived with her for more than three months in Bawani Khera and

her parents were her next door neighbour, her real uncle was also their

neighbour. She stated that her parents were in the knowledge of the fact

that she and accused Naveen were living together as wife and husband

and her parents were happy with her relations with accused Naveen.

Even the Investigating Officer PW10 ASI Dharmli Devi has admitted in

her her cross-examination that accused and the prosecutrix remained in

live-in relationship for about two months in the house of the prosecutrix.

Thus the offence of rape on the part of the accused was not established

on record.

The prosecution had failed to prove its charge against the

accused beyond a shadow of reasonable doubt but the trial Court by

misappraisal of evidence and misinterpretation of law wrongly

convicted the accused for the offences under Sections 376(2)(n) and 450

IPC. No proper reasoning has been given while coming to the

conclusion that charge for offences under Sections 376(2)(n) and 450

IPC stood proved against the accused.

Thus, I find that the judgment of conviction and order of

sentence passed by the Court below are not sustainable, the same are set

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aside by way of acceptance of this appeal. The appellant is acquitted of

the charge for which he has been held guilty and convicted vide the

impugned judgment.

The appeal stands allowed accordingly.

The appellant – Naveen, who is stated to be in custody is

ordered to be released forthwith, if not required in any other case.

Necessary intimation be sent to the quarter concerned.

(H.S.MADAAN)
5.10.2018 JUDGE
Brij

Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No

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