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Pawan Kumar And Anr vs State Of Haryana on 19 December, 2018

CRA-D No. 1246-DB of 2015 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRA-D No. 1246-DB of 2015 (OM)
Reserved on : 7.12.2018
Date of Decision : 19.12.2018

Pawan Kumar and another …. Appellants

versus

State of Haryana … Respondent

Coram: Hon’ble Mr. Justice Rajiv Sharma
Hon’ble Mr. Justice Harinder Singh Sidhu

Present Mr. N. S. Shekhawat, Advocate, for the appellants.
Ms. Shubhra Singh, Additional Advocate General, Haryana.

Rajiv Sharma, J.

1. Though the application filed by appellant no.1- Pawan Kumar

was listed for suspension of sentence but with the consent of learned

counsel for the parties, the main appeal itself was heard on merits.

2. The present appeal is instituted against the judgment dated

6.4.2015 and order dated 13.4.2015, rendered by Additional Sessions Judge,

Rewari, in Sessions Case No. 25RT of 2013/ 2014, vide which the

appellants Pawan Kumar and Geeta Devi, were charged with and tried for

the offence punishable under Sections 306, 376, 34 IPC and Sections 4 and

6 of the POCSO Act. They were convicted and sentenced under Section

306/34 IPC to undergo rigorous imprisonment for a period of seven years

and to pay fine of ` 20,000/- each and in default of payment of fine, to

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further undergo imprisonment for three month. Accused Pawan Kumar was

also convicted and sentenced under Section 376 IPC to undergo rigorous

imprisonment for a period of seven years and to pay fine of ` 10,000/- and

in default of payment of fine, to further undergo imprisonment for three

months.

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

Jaswant Singh (grand-father of the deceased) filed a complaint to the SHO,

Police Station, Dharuhera to the effect that on 27.5.2013 at about 7.23 P.M.,

he received a telephonic call from the mother of the deceased (name

withheld) that the victim had committed suicide. Thereafter, he reached the

house. He saw that the victim was lying on the cot. This incident was the

outcome of illicit relations between the mother of the deceased and Pawan

Kumar @ Banti. Name of deceased’s mother is Geeta Devi. FIR, Ex.PV, was

registered. Post mortem examination was conducted. Suicide note, Ex.PP,

was also recovered from the spot. It was sent to FSL, Madhuban for

comparison with the handwriting of the deceased. Photographs of the spot

were also taken. Investigation was completed and challan was put up after

completion of all the codal formalities.

4. To prove its case, the prosecution examined 18 witnesses. The

statements of the accused were also recorded under Section 313 Cr.P.C.

They have denied the case of the prosecution. The accused were convicted

and sentenced, as noticed above. Hence, the present appeal.

5. Learned counsel appearing on behalf of the appellants

vehemently argued that the prosecution has failed to prove its case. Learned

counsel appearing for the State vehemently argued that the prosecution has

proved its case beyond reasonable doubt and supported the judgment and

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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. PW1 Jaswant Singh has testified that he received a phone call

from Geeta Devi wife of Satish Kumar on 27.5.2013 at about 7.23 A.M. that

his grand-daughter had committed suicide by hanging. He informed the

police. He reached the spot along with the police and saw that dead-body of

victim was lying on the cot. There was dispute between Satish Kumar and

Geeta Devi. Satish was residing with him. The cause of dispute between

Satish Kumar and Geeta Devi was that Pawan Kumar was residing with

Geeta Devi. He had developed illicit relation with Geeta Devi. On

22.4.2011, Geeta Devi had given in writing that in future she will not

indulge in these activities. However, Geeta Devi continued living with

Pawan Kumar. She did not mend her ways. The deceased used to live with

Geeta Devi. On 20.5.2013, the victim had also told him about the rape. On

25.5.2013, the victim had made a telephonic call to him and asked to come

to the residence. He could not go. On 27.5.2013, he received information

about suicide committed by the victim. In his cross-examination, he deposed

that he served as a teacher. The distance between the Police Station,

Dharuhera and house of Geeta Devi is about two kilometers. He further

deposed that on 27.5.2013, Pawan alias Banti was seen at the house of

Geeta Devi.

8. PW2 Satish Kumar is the father of the deceased. He deposed

that his daughter was student of Government Girls Senior Secondary

School, Dharuhera. Her date of birth was 2.12.1996. His wife had developed

illicit relations with Pawan Kumar. His relation with Geeta Devi were

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strained. He started living with his father. Accused Pawan Kumar used to

live with Geeta Devi. He was present in his house when his brother Sunil

Kumar told him that his daughter had committed suicide. He reached the

spot. He deposed that the victim had come to the house of his parents on

20.5.2013 and told that she was given beatings by Geeta Devi and Pawan

Kumar. He had started living separately from his father since December,

2008 to March, 2010.

9. PW3 Sunil Kumar deposed that Geeta Devi had started living

with Pawan Kumar. On 22.4.2011, Geeta Devi had undertaken to mend her

ways. He had seen Pawan Kumar coming out of the house of Geeta Devi on

27.5.2013 at about 4.00/5.00 P.M. The victim had committed suicide after

being raped by Pawan Kumar.

10. PW6 Sakar Lata, Junior Lecturer, Government Girls Senior

Secondary School, Dharuhera, deposed that she was working as officiating

Principal. The police had moved an application seeking date of birth of the

deceased. She had given date of birth of the deceased as 2.12.1996 vide

endorsement, Ex.PE.

11. PW7 ASI Jitender Kumar deposed that Pawan Kumar was

interrogated in his presence by the Investigating officer. He made disclosure

statement, Ex.PG. According to him, the Investigating officer had also

collected one answer-sheet, Ex.P3, of the victim of her 9th class

examination.

12. PW8 HC Ram Chander has deposed that he was posted as MM

at Police Station, Dharuhera on 27.5.2013. On that day SI Harpal had

deposited one chunni, one drum, one knife and one suicide note in the

malkhana.

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13. PW9 EHC Dharampal has prepared the site plan.

14. PW11 LHC Sobha Rani deposed that two chunnis (veils) tied

with the girder of the roof and one piece of chunni lying near the body of

the deceased were taken into possession. She identified the same in the

Court.

15. PW12 Dr. Pankaj Yadav has medically examined accused

Pawan Kumar. He proved MLR report, Ex.PM. He deposed that there was

nothing suggestive that Pawan Kumar was uncapable of doing sexual

intercourse.

16. PW14 Dr. Reetu Yadav has conducted the post mortem

examination on the body of the victim along with Dr. Pawan and Dr. Jai

Parkash. She noticed the following injuries on her body:-

“Eyes congested conductive haemorrhage present.
Tongue pale, tongue bite, oral mucosa and lips
cyanosed.

Bruise over lower lip at centre. Two bruises of 2×1 cms
over right shoulder, bite marks over left side of neck,
bite marks over right side 4 cm below nipple 1.5 x 1 cm
in size.

PMS over dependent areas, RM present (12 to 24
hours).

Local examination :- Vagina admits two fingers loosely.
Bruise present over labia majora and minora.
Hymen ruputured at 7 O’ Clock position and 9 O’ Clock
position.

(Swabs with blood stained vaginal discharge made and
two slides were prepared. All sealed and sent for
examination).

UPT negative.

All abdominal organs congested as mentioned at page
no.4 of PMR.

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Uterus healthy and normal in size.
Opinion :-

In our opinion cause of death in this case is asphyxia
due to hanging which is ante mortem in nature and
sufficient to cause death in ordinary course of life.
However, vaginal and cervical smear/ swab has been
sent to FSL, Madhuban for presence of semen, if any,
along with deceased’s underwear as findings were
suggestive of sexual assault.

Probable time between injury and death is less than 10
minutes.

Probable duration of time between death and PME is
within 24 hours.”

17. As per the opinion of the doctors, the cause of death was

asphyxia due to hanging, which was ante-mortem in nature and sufficient to

cause death in ordinary course of life. The time lapsed between injury and

death was less than 10 minutes. The time lapsed between the death and post-

mortem examination was within 24 hours. PW14 has also referred to FSL

report, Ex.PX.

18. PW15 Sub-Inspector Sukhbir Singh has prepared report under

Section 173 Cr.P.C. In his cross-examination he stated that he did not know

that the victim had written suicide note mentioning no one was responsible

for her death.

19. PW16 SI Harpal Singh was the Investigating officer. He

received post-mortem examination report. He had obtained answer-sheet of

the victim. He arrested accused Pawan Kumar. He has also arrested accused

Geeta Devi on 2.6.2013.

20. What can be gathered from the statements discussed

hereinabove is that the victim was born on 2.12.1996. She was living with

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her mother Geeta Devi. Her mother had illicit relations with accused Pawan

Kumar. The victim’s father was living with his parents. The case of the

prosecution precisely is that Pawan Kumar had raped the victim and due to

this reason, she committed suicide.

21. According to post-mortem examination report, the cause of

death was asphyxia due to hanging, which was ante-mortem in nature and

sufficient to cause death in ordinary course of life. The probable time

between injury and death was less than 10 minutes. The possibility of sexual

assault could not be ruled out.

22. PW1 Jaswant Singh is the grand-father of the victim. PW2

Satish Kumar is father of the victim and PW3 Sunil Kumar is the son of the

complainant. He had seen Pawan Kumar on 27.5.2013 coming out of the

house of Geeta Devi i.e. on the day of occurrence. Pawan Kumar had also

made disclosure statement. The statement made by PW1 Jaswant Singh is

duly corroborated by medical evidence including PMR, Ex.PO, and FSL

report, Ex.PX.

23. The handwriting on the suicide note was sent to Forensic

Science Laboratory, Madhuban, Karnal. The report is Ex.PZ. It has come in

the report that it was not possible to express any opinion on questioned

signatures marked Q2 in the absence of standard signatures of the person

concerned. It was also not possible to express any opinion on questioned

writings marked Q3 as the supplied admitted English writings of the person

concerned were not sufficient. The opinion was that the person who wrote

red enclosed admitted writings stamped and marked A1 to A5 also wrote the

red enclosed questioned writings similarly stamped and marked Q1. The

suicide note has no date. The same was found near the dead-body. The

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prosecution has duly proved that the victim was raped by Pawan Kumar and

thereafter she committed suicide. The numerous injuries on the body of

victim have not been explained by the appellants.

23. As far as not referring the matter to the police by the grand-

father and father of the deceased is concerned, it is not fatal to the

prosecution case because the Indian society set up is that such like matters

are always tried to be hushed up to save the honour of the family. The

victim was minor at the time when the offence was committed. Merely that

semen was not detected on the clothes of the deceased it cannot be said that

the rape was not committed. Post mortem report and FSL report, Ex.PX,

duly support the case of the prosecution.

24. The loose translation of the suicide note, Ex.PP, reads as

under:-

“I am happily committing suicide at my own. I am tying
rope myself in my neck. After my death they should not be
sent to Jail. Neither Grand-father, Father and Uncle (Bade
Papa), grand-mother, mother, Aunti (Badi Mummy) of
Sector 6 may not be arrested.

Nor Bunty Uncle, as they have not done anything wrong
to me. None should be arrested.”

25. It cannot be believed by any stretch of imagination that any

person will commit suicide happily. There is reference in the suicide note

that action be not taken against grand-father, father and mother, however,

the name of Pawan Kumar @ Bunty (chacha) also finds mentioned in the

suicide note. Accused Geeta Devi has also not explained the circumstances

under which her daughter has committed suicide as the victim was residing

with her.

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26. In view of our aforesaid discussion, there is no merit in the

present appeal. Accordingly, the appeal is dismissed. However, the sentence

imposed upon appellant Pawan Kumar shall run concurrently. The sentence

awarded to appellant Geeta Devi was suspended vide order dated

21.11.2017 during the pendency of the present appeal. Said bail order is

revoked. She is directed to surrender before the trial Court to undergo her

remaining sentence.

(Rajiv Sharma)
Judge

19.12.2018 (Harinder Singh Sidhu)
vs Judge

Whether speaking/reasoned Yes/No

Whether reportable Yes/No

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