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2007 DIGILAW 1149 (PNJ)

State Of Haryana v. Budh Ram

2007-05-16

ADARSH KUMAR GOEL, S.N.AGGARWAL

body2007
Judgment Adarsh Kumar Goel and S.N.Aggarwal JJ. 1. The State is aggrieved by the acquittal of the respondents of the charges under Sections 376/366- A/363/506/34 IPC. 2. Case of the prosecution is that on 13.6.1998, complainant Banwari Lal had gone to Muktsar to settle some dispute among his relatives. His wife Krishna had gone to the fields to bring the fuel wood. His father `S, aged 17 years, the prosecutrix was alone at the house. At 2 PM, when Krishna returned to the house, she found `S missing. Inspite of search in nearby houses, she could not be traced. When the complainant returned home at 6 PM, he learnt that `S was missing. He went to the Sewing Centre where `S used to go for learning sewing. He was told that she had not gone there also. On 14.6.1998, he went to the residence of Shiv Ram, accused in Village Raman Mandi where he was told by the neighbours that the accused Shiv Ram, Dudhi Devi and Budh Ram had brought a girl from Dabwali and they had gone to Sunam with Sukhdevi. On the next day, he reached the residence of sister of Shiv Ram and met `S there. She disclosed that when she was going to attend the Sewing Class on 13.6.1998, she was told by Shiv Ram and Dudhi Devi, accused that their mother had a fit in the village and she should accompany them. She accompanied them and at the house of Shiv Ram, she was locked inside a room by Sukhdevi. Dudhi Devi and Budh Ram and Shiv Ram, accused committed rape. On 14.6.1998, Shiv Ram, Sukhdevi and brother-in-law of Shiv Ram took her to Sunam where she was kept at the residence of brother-in-law of Shiv Ram where Shiv Ram again committed rape. On 15.6.1998, she was taken to an advocate and made to sign papers for marriage under threat. However, her father Banwari Lal took her from there to Dabwali and thereafter, complaint was lodged on 25.6,1998. Complaint Ex. PB was lodged on 25.6.1998, on which FIR was registered. She was medico-legally examined and her statement was recorded before the Magistrate. On 22.7.1998, Shiv Ram was arrested and was medico-legally examined. After receipt of report of the FSL and completion of investigation, the accused were sent up for trial. 3. The prosecution examined PW-1 Dr. Complaint Ex. PB was lodged on 25.6.1998, on which FIR was registered. She was medico-legally examined and her statement was recorded before the Magistrate. On 22.7.1998, Shiv Ram was arrested and was medico-legally examined. After receipt of report of the FSL and completion of investigation, the accused were sent up for trial. 3. The prosecution examined PW-1 Dr. Joginder Singh who medico-legally examined accused Shiv Kumar on 22.7.1998 and proved the copy of MLR Ex. PA. PW-2 Banwari Lal complainant who narrated the version as explained in the complaint Ex. PB, PW-3 `S prosecutrix, who narrated the manner in which she was subjected to sexual assault, PW-4 Dharamvir Singly who tendered his affidavit Ex. PC duly sworn in by him to be read as a part of his statement, PW-5 Ashok Kumar, a formal witness who tendered his affidavit Ex. PD duly sworn in by him to be read as a part of his statement, PW-6 Pyare Lal who had seen `S going towards Sewing Centre on 13.6.1998 and the prosecutrix was also recovered from the custody of the accused in his presence, PW-7 Surinder Singh Inspector who prepared the report under Section 173 of the Criminal Procedure Code, 1973 after completion of investigation and PW-8 Dr. (Mrs.) Vanita Jhunthra who medico-legally examined the prosecutrix and proved the copy of MIA Ex. PE. The prosecutrix was examined on the application moved by the police Ex. PF. PW-9 Sher Singh, the Investigating Officer proved various documents prepared during the investigation and narrated the manner in which the investigation was conducted by him. 4. The accused denied the prosecution allegations and stated that version of the prosecution was a counter-blast of FIR No. 133 dated 24.6.1998 under Sections 323/452/356/34 IPC. Police Station City, Dabwali registered at the instance of Daropadi against Shanti etc. The complainant party has been challaned in that case and is facing the trial. In fact the complainant party entered into the house of accused Daropadi and dragged her out in the street. Accused Daropadi was made naked and was given beatings on her private parts. She was medico legally examined and the case was registered against the complainant party. They further raised the plea that `S was in love with one Inder Pal to whom she had been writing the letters. The prosecutrix `S had eloped with said Inder Pal and had returned back. She was medico legally examined and the case was registered against the complainant party. They further raised the plea that `S was in love with one Inder Pal to whom she had been writing the letters. The prosecutrix `S had eloped with said Inder Pal and had returned back. It was further pleaded that the police party did not visit the house of accused Banwari Lal situated at Sunam. The residence of accused Banwari Lal consists of only one room and it is not feasible to accommodate all the accused in one room when the wife of accused Banwari Lal had delivered a child on 15.6.1998 in that room itself. The accused also produced DW1 Gautam Parshad resident of Sunam and tendered the love letter written by the prosecutrix Ex. DC, copy of complaint moved by Siri Ram Ex. DD, copy of voter-list Ex. DE and copy of charge-sheet in the FIR No. 133 dated 24.6.1998 under Sections 323/452/149/506/509/34 IPC, Police Station City, Dabwali Ex. DF. 5. After considering the evidence on record, the trial Court held that the case of the prosecution was not proved beyond reasonable doubt and acquitted the accused. It was, inter-alia held as under : (i) The prosecutrix was abducted on 13.6.1998 at 9 AM and was recovered on 15.6.1998 from the office of an advocate at Sunam but FIR Ex. PB-1 was lodged on 25.6.1998 at 6.30 PM and, thus, there was delay of 13 days. Explanation given by PW-2 Banwari Lal was that on account of insult, they did not report the matter to the police. Panchayat was held for resolving the matter and he was told that the matter will he compromised. He was ready for compromise but the accused were not ready. The prosecutrix `S was examined as PW-3 who did not mention about the panchayat. PW-6 Pyare Lal stated that panchayat was convened on 16.6.1998 which was not attended by the accused. (ii) In the FSL report semen could not be detected on the swabs and slides. As per statement under Section 161 Cr.P.C on 21.7.1998 before the SDJM, Dabwali, no rape had been committed. Even according to MLR, no rape was committed. PW-8 Dr. (Mrs.) Vinita Jhunthra stated that hymen was intact and vagina could admit one finger with difficulty and no Sexual intercourse had been committed with the prosecutrix. As per statement under Section 161 Cr.P.C on 21.7.1998 before the SDJM, Dabwali, no rape had been committed. Even according to MLR, no rape was committed. PW-8 Dr. (Mrs.) Vinita Jhunthra stated that hymen was intact and vagina could admit one finger with difficulty and no Sexual intercourse had been committed with the prosecutrix. (iii) The prosecution implicated two ladies and Banwari Lal, brother-in-law of accused Shiv Ram even though Banwari Lal was not attributed any role. (iv) The version given by PW3 `S, the prosecutrix was not reliable and suffered from discrepancies. She admitted love letter Ex. DC written in her own hand. Her explanation that the same was written at the instance of some other girl, was not reliable. (v) The house where alleged offence is said to have been committed comprised of only one room where Banwari Lal was living with his family and his wife had delivered a male child on 15.6.1998 in that very house and, thus, the commission of offence was improbable. (vi) There was counter version about the complainant side having assaulted Daropadi, sister-in-law of accused Budh Ram which led to registration of FIR No. 133 dated 24.6.1998. 6. We have heard learned counsel for the parties and perused the reasons for acquittal of the respondents. 7. Learned counsel for the accused stated that the matter was compromised and Banwari Lal, father of the prosecutrix did not wish to proceed further in the matter. He had sworn an affidavit dated 22.4.2006 a copy of which was handed over today in Court. It may be taken on record as Mark `A. 8. It remains undisputed that there is a delay of 13 days in lodging the FIR. Even though, delay may not always be fatal if there is clear and reliable evidence of commission of offence. PW8 Dr. Vinita Jhunthra after examining tile prosecutrix stated that the hymen was intact and no rape had been committed. The prosecutrix also in her statement EX. PJ before the SDJM, Dabwali did not support the version of rape having been committed. The statement of prosecutrix has not been found to be reliable. These was a cross version registered against the complainant, father of the prosecutrix in these circumstances, the view taken by the trial Court is a possible view. The order of acquittal is not liable to be set aside merely because two views may be possible. The statement of prosecutrix has not been found to be reliable. These was a cross version registered against the complainant, father of the prosecutrix in these circumstances, the view taken by the trial Court is a possible view. The order of acquittal is not liable to be set aside merely because two views may be possible. 9. Scope of appeal against acquittal has been gone into by the Honble Supreme Court inter alia, in Jaswant Singh v. State of Haryana, AIR 2000 SC 1833 2000(3) All India Criminal LR (S.C.) 621, wherein it was observed : "21. The principle to be followed by appellate Courts considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the order is clearly unreasonable it is a compelling reason for interference (see Shivaji Sahabrao Bohade v. State of Maharashtra, 1973(2) SCC 793 : AIR 1973 SC 2622 : 1973 Cri. LJ 1783.) The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 AIR SCW 2438 AIR 1996 SC 2035 : 1996 Cri. LJ 2867 : "While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions." 10. In view of above the appeal is dismissed.