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Rekha vs State Of Haryana And Anr on 9 July, 2019

CRM-A-879-2019 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRM-A-879 of 2019
Date of Decision: 09.7.2019

Rekha …….Applicant

Vs.

State of Haryana and another …….Respondents

CORAM: HON’BLE MR. JUSTICE AJAY TEWARI
HON’BLE MR. JUSTICE HARNARESH SINGH GILL

Present: – Mr. G.S.Goria, Advocate
for the applicant.
*****

HARNARESH SINGH GILL, J.

The applicant has filed the present application under Section

378(4) Cr.P.C. for grant of leave to appeal against the judgment dated

20.2.2019 passed by the learned Additional Sessions Judge, Faridabad vide

which accused/respondent No. 2-Vinod has been acquitted of the charges

under Sections 120-B/Section376/Section494/Section506 of the Indian Penal Code, 1860 (‘SectionIPC’ for

short) and Section 3 of Scheduled Castes and SectionScheduled Tribes (Prevention

of Atrocities) Act, 1989 (‘Act’ for short) in FIR No. 80 dated 24.2.2017,

registered at Police Station Kotwali, Faridabad.

As per the prosecution story, the above said FIR was registered

on the complaint of complainant/prosecutrix stating therein that one Pankaj

was running an office of Consultancy at Nehru Ground where she had gone

for employment with her bio-data, in which her mobile number was

mentioned. Said Pankaj called her for employment time and again and later

on expressed his desire to marry her and on the pretext of marriage, he had

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committed rape upon the applicant and also prepared obscene video which

was not in her knowledge. Later, respondent No. 2-Vinod, started following

her on Facebook and Whatsapp and had asked her to meet him. On her

refusal, respondent No. 2-Vinod started contacting her on Whatsapp and

told her that he had the knowledge about her relationship with Pankaj and

that he had purchased the obscene C.D. from Pankaj for a sum of Rs. 10.00

lacs, which was in his possession and also threatened her to spoil her

reputation by uploading her video on the internet. Respondent No. 2-Vinod

performed marriage with the applicant on 13.2.2017 in Arya Samaj Temple,

New Delhi. However, at the time of marriage he had already been married

and having children. Respondent No. 2 was harassing the applicant on

telephone and he also told her family members that he had performed

marriage with the applicant and wanted to take her back. On coming to

know about the whole story, the parents of the applicant filed a complaint

against respondent No. 2. Accordingly, the present FIR was registered.

After completion of investigation and necessary formalities,

challan was presented against the accused-respondent No. 2.

Vide order dated 18.9.2017, charge was framed against the

accused-respondent No. 2 under Sections 120-B/Section376/Section494/Section506 IPC and

Section 3 of the Act to which he pleaded not guilty and claimed trial.

In order to prove its case, the prosecution had examined as

many as 10 witnesses.

PW-1 Roshan Lal, Advocate, Tees Hazari Court, Delhi, Oath

Commissioner deposed that declaration of marriage affidavit (Mark-A) of

Vinod Kumar-respondent No. 2 and marriage affidavit of applicant (Mark-

B) had been attested by him.

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Applicant-prosecutrix stepped into the witness box as

PW-3 and stated that on the pretext of marriage, Pankaj had committed rape

upon her and prepared a C.D. Thereafter, after about three years, the

applicant came in contact with Vinod Sharma-respondent No. 2, who was

friend of Pankaj. She further deposed that at later stage, Vinod-respondent

No. 2 had started threatening her to defame her. On 7.9.2016, Vinod called

her telephonically behind Rose Garden, NIT, Faridabad and raped her in his

car SX4 colour silver and also told her that he had purchased her obscene

video from Pankaj for Rs. 10.00 lacs. Thereafter on 13.2.2017, Vinod

solemnized marriage with her in Delhi and again committed rape upon her.

Similarly PW-4 Mahesh Parshad, father of the applicant,

deposed that Vinod-respondent No. 2 had threatened him on mobile phone

and addressed him by name of his caste and had also committed rape upon

his daughter.

Along with other witnesses, the prosecution had also examined

PW-10 Dr. Manish Dayal, who had medico legally examined Vinod Kumar

Sharma after obtaining his consent, Ex. PW-10/A and during examination,

Vinod Kumar was found capable of performing sexual intercourse. He

proved the MLR as Ex. PW-10/B.

Learned counsel for the applicant has argued that the applicant

had been subjected to cruelty at the hands of Pankaj who later on handed

over the obscene video to Vinod-respondent No. 2, who had committed rape

upon the applicant time and again. It is further argued that Vinod-

respondent No. 2 solemnized marriage with the applicant on 13.2.2017 and

when the applicant came to know that respondent No. 2 was 35 years old

and had already been married and having children from that marriage, she

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told all these facts to her parents and later on, the FIR in question was

registered.

We have heard learned counsel for the applicant but do not find

any merit in the present application seeking leave to appeal.

In the present case, the applicant has levelled allegations of

rape against respondent No. 2 before marriage and after marriage which was

solemnized between the two on 13.2.2017. It is a case in which ACP Pooja

Dabla PW-9 admitted in her cross-examination that during investigation,

accused-respondent No. 2 was found innocent as the prosecutrix had

voluntarily married him and that she was more than 18 years of age at the

time of marriage. The said witness further deposed that accused Vinod

Kumar was challaned on re-investigation on the complaint of the applicant-

complainant which shows that the police challaned respondent No.2-Vinod

Kumar under the pressure of the applicant. The applicant in her cross-

examination stated that she had visited at least on 25 occasions regarding

the enquiry of the status of her case. It is a case in which marriage was

performed. Therefore, Section 376 IPC is not attracted. Thus, after

considering the above facts, the trial Court has rightly acquitted respondent

No. 2-accused of the charges framed against him.

While granting the leave applied for, this Court is to bear in

mind that in case of acquittal there is a double presumption in favour of the

accused. Firstly, the presumption of innocence is available to him under the

Fundamental principles of criminal jurisprudence that every person is

presumed to be innocent unless he is proved to be guilty by a competent

Court of law. Secondly, the accused having secured acquittal, the

presumption of his innocence is certainly not weakened but re-inforced, re-

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affirmed and strengthened by the trial Court. When two reasonable

conclusions are possible on the basis of evidence on record, the appellate

Court should not disturb the finding of acquittal recorded by the trial Court.

Learned counsel appearing for the applicant could not point out

any material illegality or perversity in the impugned judgment of acquittal.

Nothing has been shown as to the misreading and misinterpretation of the

evidence by the learned trial Court, while passing the impugned judgment.

Consequently, the application seeking leave to appeal is

dismissed. Leave to appeal is declined.

(AJAY TEWARI) (HARNARESH SINGH GILL)
JUDGE JUDGE

July 09, 2019
Gurpreet

Whether speaking /reasoned : Yes
Whether Reportable : Yes

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