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Vicky vs State Of Haryana on 22 December, 2017

CRA-S-4205-SB of 2013(OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-4205-SB of 2013(OM)
Date of Decision:22.12.2017
Vicky
…… Appellant
Versus

State of Haryana
…… Respondent

CORAM:- HON’BLE MRS.JUSTICE LISA GILL

Present: Mr.K.S.Dhillon, Advocate
for the appellant.

Mr. Ramesh Kumar, AAG, Haryana.
*****

LISA GILL, J (Oral).

Appellant has been convicted for the offences punishable under

Sections 363, 366-A, 376 of the Indian Penal Code, 1860 (for short-‘IPC’) by

the learned Additional Sessions Judge, Rewari, vide impugned judgment

dated 30.08.2013 and by a separate order of sentence dated i.e. 31.10.2013

the appellant has been sentenced as under:-

Offence u/s Sentence

363 IPC Rigorous imprisonment for three years; besides pay

a fine of `2000/- and in default thereof to further
undergo RI for two months

366-A IPC Rigorous imprisonment for five years; besides pay
a fine of `3000/- and in default thereof to further
undergo RI for three months

376 IPC Rigorous imprisonment for seven years; besides
pay a fine of `5000/- and in default thereof to
further undergo RI for four months

Aggrieved therefrom, the present appeal has been filed by the

appellant.

Brief facts necessary for the adjudication of this case are that

the above said FIR (Ex.PH) was registered on the statement of PW-2-Bhim

Singh-complainant (Ex.PD). Information was received by the police

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authorities through the control room on 12.01.2013 that a girl had been

kidnapped. On receipt of this information, ASI Shri Bhagwan along with

constable Jogender and LHC Kusum Lata reached Rajiv Nagar.

Complainant-Bhim Singh met them there and recorded his statement to the

effect that his brother had four children, one of them was a daughter aged

about 16-17 years. He stated that she was of slightly weak mind and was

undergoing treatment. The complainant informed that the victim was sitting

near the Shani Temple in the locality on 12.01.2013 at about 6.00.p.m. Other

children of the locality were playing there as well. The complainant’s sister-

in-law (Bhabi) informed him that the victim who was sitting near the Shani

temple had gone missing. They started searching for the victim. Children

present at the spot informed that the appellant, who was residing with the

daughter of his maternal aunt (Mausi) had taken away the victim. The

complainant along with one Sunny son of Rajiv tailor and Vicky son of

Chaillu Ram went in search of the victim in a vehicle. They found the

appellant alongwith the victim near a roadside vendor near ‘Pilot Chowk’.

The appellant was forcing the victim to eat eggs taken from the said roadside

vendor. The victim was crying and the appellant was beating her. When they

inquired from the prosecutrix as to why she was crying, she revealed that the

appellant was taking her forcibly.

The complainant stated that the appellant taking advantage of

the victim’s simplicity forcibly kidnapped his niece with an intention to

commit wrong act. FIR under Section 363, 366-A IPC was accordingly

registered against the appellant.

Rough site plan Ex.PQ was prepared by the Investigating

Officer-Shri Bhagwan (PW-11). The victim was medico legally examined

by Dr. Shivangi Prashar (PW-1). Medico Legal Report is on record as

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Ex.PB. F.S.L. report is on record as Ex.PX.

Statement of the victim under Section 164 Cr.P.C., Ex.PD was

recorded on 16.02.2013 before the learned Additional Chief Judicial

Magistrate, Rewari. The victim stated that the appellant used to reside near

their house. He forcibly took her along with him to a street vendor (Rehri).

The victim started crying but the appellant slapped her. It is further stated

that she was rescued thereafter from the appellant. Final report under Section

173 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) was

presented on completion of the investigation on 19.02.2013. Report of the

F.S.L. dated 14.02.2013 (Ex.PX) was received. As per the said report,

human semen was detected on exhibit-1 i.e. a dirty brown coloured ‘Salwar’

stated to be belonging to the victim. Consequent to receipt of the F.S.L.

report, the appellant was proceeded against for the offence punishable under

Section 376 IPC.

It is to be noted that charge against the appellant was initially

framed under Section 363, 366-A IPC on 02.04.2013. After receipt of the

F.S.L. report, Ex.PX it was opined by the learned trial Court that an offence

punishable under Section 376 IPC is also made out against the appellant.

Accordingly, amended charge was framed against the appellant on

23.05.2013 under Sections 363, 366-A and 376 IPC. The appellant pleaded

not guilty and claimed trial.

The prosecution examined as many as fourteen witnesses to

prove its case against the appellant. The accused in his statement under

Section 313 Cr.P.C., denied all the incriminating evidence put to him while

claiming innocence and false implication. No evidence in defence was

however, led.

Learned trial Court on considering the facts and circumstances

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of the case as well as the evidence on record concluded that the prosecution

successfully proved its case beyond reasonable doubt. Consequently, the

appellant was convicted for the offences punishable under Sections 363,

366-A, 376 IPC and sentenced as detailed above.

Aggrieved therefrom, the present appeal has been filed.

Learned counsel for the appellant vehemently argues that the

conviction of the appellant for the offences punishable under Section 363,

366-A, 376 IPC is not made out on the basis of the evidence on record. It is

submitted that no allegations of rape were raised at the outset or at any stage

thereafter till the receipt of the F.S.L. report. As per the M.L.R. Ex.PB, no

injury was detected on the person of the victim. In-fact, the medical

evidence rules out the probability of sexual assault. Moreover, the link

evidence in this case is missing, which proves that detection of human

semen on the brown ‘Salwar’ may not necessarily be linked to the victim.

Moreover, it is vehemently argued that the ocular version in itself falsifies

the hypothesis of commission of rape upon the victim. The time-line, which

is given by the witnesses clearly proves that commission of such offence

was not possible within the said time frame. It is further urged that there is

no medical evidence on record to reveal that the victim was mentally weak

/retarded. The vaginal swabs of the prosecutrix taken at the time of medical

examination were not sent for examination for reasons best known to the

prosecution.

Furthermore, it is argued that non-examination of the father of

the victim as well as the independent witness-Vicky are fatal to the

prosecution version as PW-3-Sita, mother of the victim stated that it is the

victim’s father who had brought back the girl home. It is thus, submitted that

discrepant ocular version, non raising of the allegations of rape at the outset,

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coupled with the medical evidence on record does not prove the guilt of the

appellant beyond the shadow of reasonable doubt. The appellant, it is

submitted, has been in custody for 4 years, 9 months and 28 days as on

10.11.2017 as per the custody certificate dated 11.11.2017. It is thus prayed

that this appeal be allowed and the appellant be acquitted of the charges

against him.

Learned counsel for the State while refuting the said arguments

submits that the prosecution has proved its case against the appellant beyond

all reasonable doubt. Thus, it is submitted that there is no ground for setting

aside the well reasoned and logical judgment of conviction dated 30.08.2013

and order of sentence dated 31.08.2013, which is based on a sound

appreciation of the evidence on record. Therefore, the said judgment and

order be upheld.

I have heard learned counsel for the parties and have gone

through the record of the case with their able assistance.

It is not in dispute that the FIR in question was registered on the

statement of the uncle of the victim to the effect that his brother has four

children and amongst them his brother’s daughter aged 16-17 years had a

simple mind since childhood and was undergoing treatment. He stated that

the victim was sitting near the Shani Temple of the locality at about 6.00

p.m on 12.01.2013 as it was Saturday. It is to be noted that Saturday is a day

on which the deity is specially worshipped. Children of the locality were

also playing there. The complainant was informed by PW-3-Sita

(complainant’s sister-in-law) that the victim had gone missing. They

searched for the victim. They were informed by the children playing nearby,

that the victim was taken away by the appellant. The complainant alongwith

Sunny and Vicky went in search of the victim and found her in the company

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of the appellant near an egg vendor in the vicinity of Pilot Chowk. The

appellant was forcing her to eat eggs. The victim was crying and the

appellant was beating her. The victim revealed that she was taken away

forcibly by the appellant.

PW-2-Bhim Singh (complainant) while deposing before the

learned trial Court stated that when he reached his residence at about 5.45

p.m, on 12.01.2013 his brother’s wife told him that the appellant had taken

away the victim. When they went in search of the victim, they saw the

appellant feeding eggs to the prosecutrix, who was crying. He further stated

that they caught hold of both the victim as well as the appellant on which

persons standing nearby asked as to why they had caught hold of both the

victim and the appellant. The complainant disclosed to these persons that the

appellant had brought the victim forcibly by inducing her. The victim was

brought back home by the complainant and the appellant stated to be taken

to the police station. It is admitted by the complainant that he alongwith the

victim’s father and Vicky went in search for the girl. She was found at about

6/6.30 p.m. He further admitted that 4-5 persons were standing near the said

egg stall. The appellant, it is submitted was known to them since the past 10-

15 years. It is stated that the appellant was under the influence of an

intoxicant at that time. The complainant in his cross-examination has

categorically denied the suggestion that the victim was taken away by the

appellant for an illegal act.

When PW-2, the complainant was recalled for cross-

examination after amendment of the charge he stated that he never inquired

about the offence from the victim. It is stated that the victim was found

within one hour of her being missing. The appellant is stated to have taken

the victim from Krishna Nagar Mohalla to Pilot Chowk on foot. It is further

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stated that it takes about one hour to go from the place of occurrence to Pilot

Chowk.

PW-3, the mother of the victim stated that her daughter was

sitting near the Shani Temple at about 6.00 p.m. on 12.01.2013 which was a

Saturday. PW-3 stated that the victim was seen sitting at about 4.00 p.m. by

her. She was informed about the appellant taking away her daughter at about

6.00 p.m by the children present near the Shani Temple. She stated that

wrong act had been committed by the appellant with her daughter. This, it is

stated was revealed to her by the victim. PW-3-Sita specifically stated that

the victim was brought home by her husband at about 7.00 p.m. One Shalu

son of Raju had come to her house and informed that the victim had been

taken away by the appellant to an unknown place.

The prosecution in its wisdom gave up the witnesses Vicky and

the father of the prosecutrix, as being unnecessary. PW-7-Rakesh Kumar,

Computer Clerk Office of M.C. Rewari, has proved the birth certificate

(Ex.PK) of the victim, wherein her date of birth is reflected as 07.02.1995.

The victim-PW-10 in her statement under Section 164 Cr.P.C

had stated that the appellant who used to reside near their house had taken

her away forcibly from the vicinity of the Shani temple to a street vendor. It

is further stated that she started crying and the appellant slapped her. She

was thereafter rescued. However, in her testimony before the learned trial

Court, the victim stated that she was present near the temple in the locality

when the appellant had taken her away. He gave her two eggs to eat from the

stall but she threw the eggs and in retaliation the appellant slapped her. The

victim for the first time before the learned trial Court stated that the

appellant took her away in a bus and wrong act was committed.

PW-11-SI Shri Bhagwan deposed that he was posted at Police

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Station Model Town, Rewari on 12.01.2013. They received information of

one girl being kidnapped by someone. They reached Rajiv Nagar, Rewari,

where statement of the complainant (Ex.PD) was recorded. FIR Ex.PH was

registered on the basis of this statement. The victim was recovered from her

residence vide recovery memo Ex.PF. Medical examination of the victim

was conducted. A packet containing the ‘Salwar’ of the victim duly sealed

were taken in custody vide recovery memo Ex.PR. PW-11 stated that the

distance of Pilot Chowk, Rewari from the spot where they reached in Rajiv

Nagar is about half kilometer. Shani temple is near the house of the victim.

It was revealed to PW-11 by the complainant that the victim had been

recovered by him from near Pilot Chowk. PW-11 stated that he did not talk

to the victim at that time. It is further stated by PW-11 that the victim was

missing from about 7/7.30.p.m and recovered at about 8.p.m. The distance

between the victim’s house and the house of the appellant’s brother-in-law

(where the appellant is stated to be living) is mentioned to be 200 yards.

It is not in dispute that initially FIR against the appellant was

registered under Section 363, 366-A IPC. No allegations of sexual assault

were raised against the appellant at any stage. It is after the receipt of the

report of Chemical Examiner, Ex.PX, that offence punishable under Section

376 IPC was added. There is no explanation for non examination of the

father of the victim or Vicky, the independent witness, who admittedly

accompanied the complainant while searching for the victim. Neither the egg

vendor nor any of the persons statedly present near the egg vendor were

examined. Similarly, none present in the vicinity of the Shani Temple at the

time when the appellant is alleged to have taken the victim away has been

examined or even cited as a witness. PW-3, mother of the victim stated that

one Shalu son of Rajiv had come to their house and informed about the

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victim being taken away by the appellant. It is pertinent to note that said

Shalu was never examined nor cited as a witness.

At this stage, it is relevant to refer to the medical evidence on

record. As per PW-1-Dr. Shivangi Prashar, who examined the victim on

12.01.2013, no injury was found present on the person of the victim. In

MLR (Ex.PX), duly proved by PW-1, it is stated as under:-

“L.E: Pubic Axillary hair present, breast adolescent
type. No injury seen over body. No sign of resistance present on
body external genitals anal region and on medial aspect of
thighs. Hymen intact. A brick colour (Kathai) pajami signed by
me, is sent for chemical analysis.”

While rendering her opinion in the said MLR, it is mentioned as

under:-

“No probability of sexual intercourse assault, however final
opinion will be given after receiving FSL Report.”

As per the FSL Report, human semen was detected on the

‘Salwar’ of the victim. Curiously, there is no report regarding the swabs

which PW-1-Dr. Shivangi Prashar, deposed were handed over to the police

authorities.

A palpable doubt is cast on the prosecution version in view of

the evidence as above. First and foremost, it is not in dispute that at the

outset no allegations attracting the rigours of Section 376 IPC were raised.

In-fact, no such allegation was raised by the complainant or the victim. As

per the Chemical Examiner Report Ex.PX, semen was detected on the

‘Salwar’ purportedly worn by the victim. Thereafter, charge against the

appellant was amended and Section 376 IPC added. It is to be noted that as

per the prosecution case, the victim had already been taken home by the

complainant/ father of the victim after she was recovered from near the egg

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vendor. PW-11, SI Shri Bhagwan, has specifically stated that the victim was

present at her residence when the police reached on information received.

She was taken from her residence for medical examination. PW-2, the

complainant stated that the appellant was under intoxication. The medical

evidence on record does not indicate the same. The M.L.R of the appellant is

on record as Ex.PN. Further doubt is cast on the prosecution version when

the street vendor/ egg vendor or any of the other persons standing nearby or

the persons present near the temple were not examined by the prosecution.

There is nothing on record to conclusively show that the victim was taken

away forcibly or subjected to rape. There is nothing on record to indicate

that the prosecutrix was not completely normal or that she was of simple or

weak mind as projected by the complainant. Though, it is stated by PW-2

that the victim was under treatment, no such evidence has been brought on

record. There are no details of the treatment she was purportedly receiving

or of the hospital/doctor from where she was receiving the treatment. The

victim in her statement under Section 164 Cr.P.C., never raised any

allegations attracting the rigours of Section 376 IPC against the appellant. In

her statement before the learned trial Court, there is a bald statement which

reads as under:-

“Stated that when I was present in the temple in my
locality, Vicky took me away from there. He gave me two eggs
at a Rehri to eat. I threw the eggs and he gave me slaps. He took
me away in a bus and accused Vicky did wrong act with me. I
identify the accused present in the Court. My statement which I
given in the Court is Ex.PO.”

The victim for the first time before the learned trial Court states

that she was taken away in a bus by the appellant and a wrong act was

committed. To rely solely on the statement of the victim in the factual matrix

of this case is unsafe and unjustified. The Chemical Examiner report Ex.PX

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reflecting the presence of semen on the salwar purportedly worn by the

prosecutrix at the time of incident (the victim was admittedly taken home

after being recovered from near the egg vendor and was taken for medical

examination from her residence) does not conclusively link the appellant

with the commission of the crime.

The distance between the place of occurrence and the temple

from where the victim is stated to have been forcibly taken away does not in

any manner permit of a hypothesis pointing to the guilt of the appellant. A

wholesome and thorough scrutiny of the evidence on record, facts and

circumstances of the case do not conclusively point to the guilt of the

appellant. Keeping in view the facts and circumstances as noted above, the

prosecution has failed to prove its case beyond reasonable doubt against the

appellant. Reasonable doubt is cast on the version put-forth by the

prosecution, the benefit of which necessarily has to accrue to the appellant.

In my considered opinion, the appellant is entitled to the benefit

of doubt. The learned trial Court has indeed erred in convicting the appellant

for the offences punishable under Sections 363, 366-A, 376 IPC and

sentencing him thereunder on the basis of the evidence on record.

Consequently, this appeal is allowed. The impugned judgment

of conviction dated 30.08.2013 and order of sentence dated 31.08.2013,

passed by the learned Additional Sessions Judge, Rewari, are set aside. The

appellant is acquitted of the charges framed against him. The appellant is in

custody. He be released forthwith, if, not required in any other case.

[LISA GILL]
22.12.2017 Judge
s.khan

Whether speaking/reasoned : Yes/No.

Whether reportable : Yes/No.

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