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Sukhwant vs State Of Haryana on 2 July, 2018

CRA-S-2788-SB of 2016(OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-2788-SB of 2016(OM)
Date of Decision: July 02, 2018
Sukhwant
…… Appellant
Versus

State of Haryana …… Respondent

CORAM:- HON’BLE MRS.JUSTICE LISA GILL

Present: Mr.Vishal Nehra, Advocate
for the appellant.

Mr. Ramesh K. Ambavta, AAG., Haryana.
*****

LISA GILL, J (Oral).

Appellant has been convicted for the offences punishable under

Sections 376, 506 IPC and Section 4 of the Protection of Children from

Sexual Offences Act, 2012 (for short ‘POCSO Act’) by the learned

Additional Sessions Judge, Special Court, Sonipat, vide impugned judgment

dated 19.07.2016 and by a separate order dated 21.07.2016 he has been

sentenced as under:-

Offence u/s Sentence
4 of POCSO Rigorous imprisonment for 07 years; besides pay a

fine of `10,000/- and in default thereof to further
undergo SI for one year.

506 IPC Rigorous imprisonment for 01 years; besides pay a
fine of `1000/- and in default thereof to further
undergo SI for three months.

Aggrieved therefrom, present appeal has been filed by the

appellant.

Brief facts essential for the adjudication of the case are that FIR

No. 45 dated 06.02.2015, was registered on the basis of a written complaint

submitted by the prosecutrix/complainant. It was stated that the prosecutrix

was 16 years old and had completed her studies till 8th standard. She had

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gone towards the Khera (vacant land of the Panchayat) for collecting wood

(firewood) along with her sisters on 05.02.2015 at about 2.00.p.m. While

collecting wood, her sisters got left behind and the present appellant, who is

a resident of her village came in an inebriated condition. He caught hold of

her, gagged her and forcibly took her to the sugarcane fields. The appellant

then committed rape upon her. It is further averred that the victim raised

alarm, but none heard her. At night, the appellant took her to the ‘Paral’ and

kept her there overnight. The next day i.e. 06.02.2015, at about 11.00.am.,

family members of the victim reached the fields while looking for her.

Appellant fled from the fields while threatening the victim not to disclose

anything to anyone or else he would kill her. Family members of the victim

rescued her. She disclosed all the facts to them. The victim along with her

father and uncles came to the Police Station and prayed for action to be

taken against the appellant. Formal FIR Ex.PW7/A was registered on the

basis of this complaint.

PW-21-Vinod Kumar-ACP, Faridabad, deposed that he was

posted as Deputy Superintendent of Police, at Gohana on 06.02.2015. Facts

of the case were disclosed to him. He inquired about the same from the

victim, victim’s father (PW-2), uncle (PW-3). PW-18-LPSI Kavita, was

directed to get the medico legal examination of the victim conducted and to

get her statement recorded under Section 164 Cr.P.C. He further stated that

the appellant’s house was raided where the appellant was found present. He

was formally arrested and got medico legally examined.

The matter was assigned to LPSI Kavita (PW-18), after

registration of the case. Prosecutrix was medico legally examined by moving

application Ex.PW-18/A. Sealed parcel handed over by the doctor after

medical examination was taken in possession vide memo Ex.PW9/A. The

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prosecutrix was produced before the Area Magistrate for recording of her

statement under Section 164 Cr.P.C. Her statement under Section 164

Cr.P.C (Ex.PW20/D) was recorded on 06.02.2015 itself. Custody of the

prosecutrix was handed over to her parents. PW-18-LPSI Kavita, visited the

spot on 07.02.2015. Rough site plan Ex.PW18/C was prepared. Photographs

of the place of occurrence Ex.P-1 to Ex.P-6 were taken. F.S.L. team was

called at the spot. Pieces of broken bangles found at the spot, were taken in

possession vide memo Ex.PW10/A. Final report under Section 173 Cr.P.C.,

on completion of investigation was presented against the appellant.

Charge under Sections 376(2) (i) IPC, Section 3 (2) (V) of the

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989

(for short ‘SC ST Act’) and Section 4 of the POCSO Act, against the

appellant was framed on 09.04.2015, to which appellant pleaded not guilty

and claimed trial.

It is relevant to note, at this stage, that the victim in this case

committed suicide on 04.03.2015. Cause of death was reported to be

asphyxia due to hanging. FIR No. 78 dated 04.03.2015, under Section 306

IPC and Section 3 of SC ST Act, was lodged against the appellant for the

death of the prosecutrix. The appellant, it is submitted has since been

acquitted of the said charges on 19.07.2016 by the learned Additional

Sessions Judge, Special Court, Sonipat

Prosecution examined as many as twenty two (22) witnesses as

well as tendered certain documents to prove its case.

The appellant in his statement under Section 313 Cr.P.C., while

denying the incriminating evidence put to him pleaded innocence and false

implication. However, no evidence was produced in defence.

The learned trial Court, while taking into consideration the

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evidence on record as well as the entire facts and circumstances of the case

concluded that the prosecution had successfully proved its case against the

appellant beyond reasonable doubt. Consequently, the appellant was

convicted and sentenced as detailed in the foregoing paras.

Aggrieved therefrom, the present appeal has been filed.

Learned counsel for the appellant vehemently argues that the

learned trial Court has grossly erred in convicting the appellant for the

offences as mentioned above. First and foremost, it is argued that the

victim/prosecutrix in this case has not been examined. Therefore, conviction

of the appellant cannot be based on her statement under Section 164 Cr.P.C.

It is further argued that there is no evidence on record to prove that the

victim in this case was minor. The witnesses it is submitted have given a

discrepant account of the incident. Thus, the appellant should be acquitted of

the charges.

Learned counsel for the appellant vehemently argues that the

material witnesses in this case i.e. father (PW-2), sisters (PW-1 and PW-12),

uncles (PW-3 and PW-16) of the prosecutrix have given a version which

does not indicate the culpability of the appellant. PW-2, father of the

prosecutrix has not even named the present appellant. Three other persons,

who were not even proceeded against were named by PW-2. PW-2,

specifically stated that the appellant was falsely implicated in this case.

PW-2, has declared hostile and subjected to cross-examination by the Public

Prosecutor. PW-3, Mahender, uncle of the prosecutrix, also did not support

the prosecution case.

PW-1, sister of the prosecutrix stated that her sister (the

proseuctrix) was subjected to rape by four persons including the appellant. It

is urged that apart from the fact that the material witnesses have come up

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with an inconsistent narration of facts, even if version given by PW-1 is

accepted, the same is not substantiated by the medical evidence on record,

which shows that no external or internal injury was detected on the person of

the prosecutrix. It is argued that in case, rape had been committed by three

or four persons, it is not possible that the victim would not have received

any injuries. Moreover, the appellant, it is argued has been acquitted of the

charge under Section 306 IPC for which he was tried separately. It is thus

prayed that the present appeal be allowed and the appellant be acquitted of

the charges against him.

Per contra, learned counsel for the State submits that there is

clear and cogent evidence on record, which points to the guilt of the

appellant. It is submitted that non-examination of the victim on account of

her committing suicide can be of no avail to the appellant. The so called

inconsistent version by the witnesses cannot be of any benefit to the

appellant in view of the stand of the victim in her statement under Section

164 Cr.P.C. Learned trial Court has convicted the appellant after considering

the evidence on record vide a well reasoned and logical judgment. There is

thus no ground to interfere with the same. The appeal, it is thus prayed, be

dismissed.

I have heard learned counsel for the parties and have gone

through the record of the case with their assistance.

The abovesaid FIR (Ex.PW7/A) was registered on a complaint

(Ex.PW8/A) with the allegations that when the victim was going to collect

wood along with her sisters, her sisters were left behind. The appellant-

Sukhwant, resident of the same village forcibly took the victim to the

sugarcane fields. He was in an inebriated condition. He gagged the victim

and committed rape upon her. The victim raised alarm but none heard her.

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At night, the appellant took the victim on the ‘Paral’. When her family

members reached the fields while searching for her in the morning on

06.02.2015 at about 11.00.a.m., the appellant fled. The appellant threatened

to kill her, in case, she disclosed the facts to anyone. It is relevant to note

that the FIR in question was registered immediately on 06.02.2015 itself.

Medical examination of the victim was conducted on the same day by Dr.

Mishu Mangla (PW-14). Statement of the victim under Section 164 Cr.P.C.,

(Ex.PW-20/B) was also recorded on 06.02.2015, itself. The victim in her

statement under Section 164 Cr.P.C., has clearly reiterated the version given

by her in the complaint. PW-20-Sukhdev Singh, Judicial Magistrate Ist

Class, Gohana, has proved that the said statement was recorded before him.

It is specifically mentioned that before recording the statement of the

prosecutrix, all the persons including police officials were directed to vacate

the camp office.

PW-1, a twelve (12) year old sister of the prosecutrix, was

found to be a competent witness by the learned trial Court. PW-1 deposed

that she accompanied her elder sister on 05.02.2015 for collecting wood.

Four persons i.e. the appellant, one Satish, Pappa and Samma were seen

consuming liquor by them at about 2.00.p.m. PW-1 stated that the appellant

had taken away her sister. They were ahead of their sister at that time. When

they could not find her sister, family members were informed, who tried to

search for her, but in vain. PW-1, further stated that her sister was found in

the fields of Samma on the next day. Her sister revealed to them that four

persons had committed rape upon her i.e. the appellant, Satish, Pappa and

Samma.

PW-12, another sister of the prosecutrix, stated that she

alongwith the victim and other sister had gone to collect woods on

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05.02.2015. Four persons i.e. the appellant, Samme, Pappe, Maruti were

found consuming liquor. She alongwith her sister-PW-1, were ahead of the

victim, who was later found to be missing. The victim, it is stated was found

on 06.02.2015 in the mustard fields of Samme in an unconscious condition.

PW-2, father of the victim, stated that his daughter, the victim

had gone to the fields to bring woods on 05.02.2015. Two of his daughters

returned back, but the victim went to the house of her paternal aunt (Bua).

PW-2, called up his brother-in-law (PW-3), who replied that the victim was

at his home and he would bring her back on the next day. It is stated that on

reaching home his daughter (the victim) informed that she was subjected to

rape by Samey, Pappe and Satish. It is stated that he alongwith his daughter

went to the Police Station, but no action was taken in the matter. Instead of

taking action against the three persons named, the present appellant was

picked up and falsely implicated. PW-2, further stated that his daughter (the

victim) committed suicide on 04.03.2015 due to the humiliation caused to

her by the abovesaid three persons. PW-2 denied his statement Ex.PW2/B

before the police though he admitted his signatures at point A on the

statement of the victim recorded on 06.02.2015. PW-2 denied that he

deposed falsely due to a compromise with the appellant. The said witness

was declared hostile.

PW-3, uncle (Phufa) of the prosecutrix, stated that on

05.02.2015, the victim reached his home. His wife informed that rape had

been committed upon the victim by three persons. PW-3 stated that he called

the father of the victim and disclosed about the incident. Thereafter, the

police authorities were informed. PW-3 denied having suffered the statement

PW-3/A before the police to the effect that when the victim did

not return home on 05.02.2015, he alongwith the victim’s father and PW-16

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went to look for or that she was found on 06.02.2015 in mustard fields of

Sukhwant or that she revealed the commission of rape upon her by the

appellant. PW-3 denied that he was deposing falsely due to a compromise

effected with the appellant. The said witness was also declared hostile.

PW-16, another uncle (Phufa) of the prosecutrix, has testified

before the learned trial Court. He stated that on 05.02.2015, he alongwith his

brother while searching for the victim, found the appellant standing in the

mustard fields. The appellant tried to conceal himself on seeing them. They

caught hold of him, but the other three persons accompanying the appellant

managed to flee. The victim was found in an unconscious condition in the

fields. First aid was given to her and she revealed that the appellant along

with Samme, Jai Bhagwan and another person committed rape upon her.

PW-14-Dr. Mishu Mangla, examined the victim on 06.02.2015,

itself. It is recorded that there is an alleged history of sexual assault six times

in the last two days. No injury, external or internal, was found on the person

of the victim. On local examination, hymen was found to be ruptured but it

appeared to be an old tear. No fresh tear or bleeding was present. PW-14,

opined that possibility of sexual intercourse could not be ruled out.

It is to be noticed that it is only the present appellant, who was

proceeded against. The witnesses i.e. the sisters, father and uncles of the

victim while raising allegations against three other persons in their

testimonies before the learned trial Court did not name the said persons or at

any stage in the interregnum.

The victim in this case was about 16 years of age. The argument

that age of the victim has not been proved is not borne out from the record.

Certificate from the Government Middle School, Bilblan, Tehsil Gohana,

was exhibited, wherein the date of birth of the victim is stated to be

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10.08.1998. The said certificate has been duly proved by PW-22, Mahabir

Dutt, SS Master, Govt. Middle School Bilblan, Tehsil Gohana. PW-22 was

working as in-charge of the School as no headmaster was posted at that time.

There is nothing on record to suggest that the said certificate is fraudulent or

incorrect.

The victim unfortunately passed away on 04.03.2015.

Therefore, her statement could not be recorded before the learned trial Court.

However, in such a situation, it cannot be said that the appellant cannot be

convicted on the basis of the available record. The victim in her complaint

has narrated the events as they unfolded in a clear and cogent manner. In her

statement under Section 164 Cr.P.C., which was recorded promptly without

any delay on 06.02.2015 itself, the victim has reiterated her stand in a

consistent manner. The victim stated in no uncertain terms that she was

subjected to rape by the appellant. She did not name any other person as the

accused. As per the F.S.L. report Ex.PX, human semen was found on the

Salwar, shirt, vaginal swab of the prosecutrix as well as the undergarments

of the appellant.

In my considered opinion, the appellant cannot derive any

benefit whatsoever from the discrepant statements of two sisters, father and

uncles of the victim. The father of the victim-PW-2, has done a complete

volteface while stating before the learned trial Court that the appellant has

been falsely implicated in this case at the instance of the police authorities.

Both the sisters of the victim PW-1 and PW-12 in their statements before the

learned trial Court have deposed about the commission of rape by the

appellant though along with three other persons. PW-1 was duly confronted

with her statement Ex.DA wherein she stated that the victim was recovered

from the mustard fields of the appellant on 06.02.2015 at about 11.00.a.m.,

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by her father and uncles. PW-1 and PW-12 have not negated the commission

of the offence by the appellant even while stating that three other persons

were involved in the crime.

PW-16 one of the uncles of the victim has specifically deposed

about the commission of the offence by the appellant though alongwith three

others.

A perusal of the record reveals that in their initial statements,

the said witnesses did not reveal that the victim disclosed anything about

rape being committed upon her by three or four persons. Allegations were

raised solely against the appellant. Presence of three other persons has been

introduced by the said witnesses at the time of deposing before the learned

trial Court. Moreover, there is nothing on record to show that any protest

whatsoever had ever been raised either by the appellant, the victim or her

father against inaction of the authorities against the other three persons, who

are alleged to have committed rape upon the victim. It is opposed to all

probabilities that such a studious silence would have been maintained and

there would have been no action against the so called false implication of the

appellant as suggested by the father of the victim in his statement before the

learned trial Court.

It is noticed that as per photographs Ex.P1 to Ex.P-6, pieces of

broken bangles were indeed recovered from the spot. This is so verified by

PW-18-LPSI Kavita. Argument of learned counsel for the appellant that

absence of injuries on the victim negates any element of force, is devoid of

any merit. The Hon’ble Supreme Court in Gurcharan Singh Vs. State of

Haryana, 1972 AIR (SC) 2661, has held that absence of injuries in itself

does not indicate the negation of allegations of rape.

In the present case, the victim herself raised allegation of rape

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qua the appellant only and not against three or four persons. Moreover, the

plea of consent was never raised by the appellant. He has pleaded innocence

and false implication. Thus, the argument regarding consent raised by

learned counsel for the appellant is unacceptable. Such a plea was never

taken or proved. Furthermore, the victim in this case is proved to be a minor.

The appellant was admittedly a married person having two children as well.

The question of consent or otherwise in the factual matrix of the case is

irrelevant.

Similarly, acquittal of the appellant for the commission of the

offence under Section 306 IPC, in respect to the death of the victim, cannot

be of any avail to him. Absence of ingredients of Section 306 IPC do not

automatically mean that the offence under Section 376 IPC, is not made out

against the appellant. In my considered opinion, the appellant has been

rightly convicted by the learned trial Court for the offence punishable under

Sections 376, 506 IPC and Section 4 of the POCSO Act. Prosecution has

indeed succeeded in proving its case beyond reasonable doubt against the

appellant. No other arguments has been raised.

Learned counsel for the appellant is unable to point out any

illegality, infirmity or perversity in the impugned judgment of conviction

dated 19.07.2016 and order of sentence dated 21.07.2016, passed by the

learned Additional Sessions Judge, Special Court, Sonipat. The said

judgment and order dated 19.07.2016 and 21.07.2016, are accordingly

upheld.

Consequently, this appeal is dismissed.

[LISA GILL]
July 02, 2018 Judge
s.khan

Whether speaking/reasoned : Yes/No.
Whether reportable : Yes/No.

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