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2008 DIGILAW 681 (PNJ)

Narinder Kumar v. State Of Haryana

2008-03-12

A.N.JINDAL, UMA NATH SINGH

body2008
Judgment 1. This judgment shall dispose of two Criminal Appeals, bearing No. 587-DB of 2004 and No. 1329-SB of 2004 as also Criminal Revision No. 1902 of 2004, as all these have arisen out of the same judgment dated 2.6.2004 passed by Additional Sessions Judge, Ambala. 2. Many laws have been made to protect the matrimonial ties and also to save the woman from the atrocities committed by her husband or his relatives, but at the same time, administration of justice was not in the interest of making misuse of the trust, created by law in her and her relatives, but we are not in dearth of such cases, where exaggeration of facts is made, net is thrown wider and law is used as an instrument to create a hole in the administration of justice. In such situation, the courts are not helpless or silent spectators to sift the chaff from the grain and not hesitant in condemning such acts on the part of the complainant. 3. A few facts, essential for disposal of the aforesaid appeals and revision petition, as disclosed in her complaint (Ex.P17) dated 7.5.2003 made to the Station House Officer, Police Station Baldev Nagar, Ambala City, the prosecutrix (PW71. name not being disclosed) alleged that she was married to accused Narinder Kumar on 20.4.2003; prior to the marriage, her father had deposited a sum of Rs. 2,41,000/- in the joint account of the couple. At the time of marriage, adequate dowry was given to her in-laws. However, the accused were not satisfied with the articles of dowry given to them and Lajwanti, mother-in-law of the complainant started taunting her for bringing less dowry. On 28.4.2003, accused Narinder Kumar informed the prosecutrix that she would entertain his fast friend Aman Kumar, who was coming to their house on that day. Accordingly, Aman Kumar came, but she refused to oblige. At this, Narinder Kumar and Aman Kumar-accused caught hold of her and then Aman Kumar with the help of Narinder Kumar (husband of the prosecutrix) committed rape upon her. Subsequently, after Aman Kumar left the place, Narinder Kumar apologised to her and assured that such act would not be repeated in future. Again on 2.5.2003, when the prosecutrix along with her husband Narinder Kumar was taking rest upstairs, Aman Kumar came to their room and raped her with the help of Narinder Kumar. Subsequently, after Aman Kumar left the place, Narinder Kumar apologised to her and assured that such act would not be repeated in future. Again on 2.5.2003, when the prosecutrix along with her husband Narinder Kumar was taking rest upstairs, Aman Kumar came to their room and raped her with the help of Narinder Kumar. On 4.5.2003, the prosecutrix went to her parents. On repeated queries about her weeping, she disclosed to Malti (her sister) that she has beern raped by the accused. Thereafter, Ram Singh (father of the prosecutrix) took her and other family members to the police station and lodged complaint (Ex.P17), on the basis of which formal First Information Report (Ex. P19) was registered at Police Station Baldev Nagar. On the same day, Dr. Veenu Sethi (PW1). medico-legally examined the prosecutrix and observed as under: "Vagina admits one finger easily, two fingers tight, cervix normal, uterus normal in size. No recent mark of injury is present. History of incident on 2.5.2003. Examination done on 7.5.2003, so there was no need of taking vaginal swabs or underwear." On the basis of the report of Dr. Veenu Sethi (PW1), both the accused were arrested; the dowry articles were recovered by the police vide recovery memo (Ex.P9) and both the accused were medico-legally examined on 8.5.2003 by Dr. Sudhir Kapoor (PW4), who reported that "there was nothing to suggest that both of them were incapable of performing sexual intercourse." Completion of investigation was followed by report against the accused under Sections 498-A, 376, 506 and 120-B IPC. 4 On commitment, accused Lajwanti was charged under Section 498-A/406 IPC. Accused Narinder Kumar was charged under Sections 498-A/406/376(2)(g)/506 IPC, while accused Aman Kumar was charged under Sections 376(2)(g)/506 IPC. All the accused denied the charges and opted for trial. 5. The prosecution in order to substantiate its case, examined eight witnesses, namely; Dr. Veena Sethi (PW1), Assistant Sub-Inspector Gurdial Singh (PW2), Ram Singh (PW3), Dr. Sudhir Kapoor (PW4), Constable Ram Saran, (PW5), Shri Surya Pratap Singh (PW6), the prosecutrix (PW7) and the Investigating Officer Sub-Inspector Ram Kumar (PW8). 6. When examined under Section 313 Cr.P.C., the accused denied all the allegations and pleaded their false implication in the case. It was further explained that it was a simple marriage and except a sum of Rs. 2,41,000/- deposited in the joint account of the couple, hardly a sum of Rs. 6. When examined under Section 313 Cr.P.C., the accused denied all the allegations and pleaded their false implication in the case. It was further explained that it was a simple marriage and except a sum of Rs. 2,41,000/- deposited in the joint account of the couple, hardly a sum of Rs. one lac was spent in the whole marriage, out of which 50% was borne by them and 50% by the parents of the prosecutrix. They further stated that the parents of the prosecutrix wanted to sell their newly built house as Narinder Kumar had lost the job after marriage and they had also demanded money, as they wanted to black-mail them in the police station itself. Accused Narinder Kumar further added that it was beyond anything that he would have got his wife sexually assaulted from a stranger, what to talk of his friend Aman Kumar. Both the friends stated that it was an effort to frame them and that they never tortured the prosecutrix for dowry or any other demands. They further stated that Narinder Kumar and the prosecutrix had been going to market, etc. and they had even gone to village Mulanpur on 2.5.2003. Accused Aman Kumar also denied all the allegations against him and pleaded that it was absolutely a false case with a view to extract an amount of Rs. 16 lacs from his parents, which the father and uncle of the prosecutrix had demanded in the Police Station on 7.5.2003, when both the sides were called there. 7. In defence, the accused examined Ahmad Ajaib Singh (DW1), Dr. Subhash Chander Sood (DW2) and Suman Lamba, mother of accused Aman Kumar (DW3). 8. The trial ended in acquittal of Lajwanti and Narinder Kumar from charges under Sections 498-A, 406, 120-B IPC and conviction of accused Narinder Kumar and Aman Kumar under Section 376(2)(g) and 506 of the Indian Penal Code. Consequently, Narinder Kumar was sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 1,000/-, while Aman Kumar was sentenced to undergo rigorous imprisonment for ten years and to pay, fine of Rs. 1,000/-, under Section 376 (2)(g) IPC. Both of them were also sentenced to undergo rigorous imprisonment for a period of one year, each, under Section 506 IPC. However, both the sentences were ordered to run concurrently. Hence, this appeal. 9. Heard learned counsel for the parties and record perused. 1,000/-, under Section 376 (2)(g) IPC. Both of them were also sentenced to undergo rigorous imprisonment for a period of one year, each, under Section 506 IPC. However, both the sentences were ordered to run concurrently. Hence, this appeal. 9. Heard learned counsel for the parties and record perused. 10. The fact that the marriage had gone to rough weather since the very initial stage, has not been disputed. The Trial Court has held that the allegations with regard to the demand of dowry and harassment on the part of the accused do not stand established. We also do not differ with the observations regarding the same. Any other allegations regarding disturbing the matrimonial ties have not been brought on surface, but the facts and circumstances of the case are indicative of the fact that the complainant being aggrieved due to the break of the matrimonial ties, in order to seek revenge tried to bring, not only the husband and mother-in-law, but also the friend of the husband, in the net with serious allegations of gang rape. Though, allegations of demand of dowry have been set up by the complainant party, yet still nothing came to the surface as to what was being demanded from them. It has been established from the testimonies of the prosecutrix (PW7) as well as Ram Singh (PW3) that phone No. 2662087 was installed in the parental house of the prosecutrix, whereas, phone No. 2520344 was installed at her matrimonial house, and that the prosecutrix was having frequent talks with her parents from 20.4.2003 (date of marriage) till 4.5.2003 (date of leaving the matrimonial house), but it has been admitted by Ram Singh (PW3) that the prosecutrix did not disclose about the demand of dowry or the alleged rape to him or any of his family members on telephone during her stay in the matrimonial house. The prosecutrix is 26/27 years old mature educated lady having studied upto 10+2, to explain any untoward event happening with tier in the four-walls of the house, but she kept mum throughout and that is the reason with us, not to differ with the observations of the Trial Court, whereby, it has held that offences under Sections 498-A, 406 and 120-B IPC have not been established against any of the accused. 11. 11. Now, coming to the question of rape, the serious delay in lodging the First Information Report, coupled with the other circumstances of the case impel us to derive a conclusion that concoction in the prosecution version could not be ruled out. Admittedly, the marriage took place on 20.4.2003. The first act of rape took place on 28.4.2003 and second on 2.5.2003. The accused Narinder Kumar is residing with his parents and, thus, in the normal circumstances, it was not possible for her not to open her mouth at least before the parents of accused Narinder Kumar or to inform her own parents, over the telephone, admittedly installed at the house of the accused. There is nothing in evidence that accused Narinder Kumar always stayed in the house. The conduct of the prosecutrix is not above board as well, because on facing such illegal act on the part of the accused, if she could not do nothing else, but would have rushed from the matrimonial house. Surprisingly, she stayed there till she was taken by her maternal uncle on 4.5.2003. Even after 4.5.2003, she kept mum for two days and disclosed about this horrendous act on 6.5.2003, still more, the FIR was lodged after a delay of 24 hours i.e., on 7.5.2003. The prime and basic document falsifying the averments made in the FIR, is the medico-legal opinion (Ex.P1) given by Dr. Veena Sethi (PW1), who disclosed that the vagina admitted one finger easily, two fingers tight, cervix normal and uterus was normal in size. She also found that there was no mark of injury. In the normal parhmce, if there is continuous intercourse even by the husband for fourteen days with a matured lady of 26-27 years, then the vagina is sufficiently stretched to admit two fingers easily, but in the present case, the doctor even has not disclosed if the hymen was torn or what was the condition of libia minora and libia majora. In such circumstances what to talk of committing rape by the accused, it is also difficult to say whether the marriage was actually consummated or not. 12. In such circumstances what to talk of committing rape by the accused, it is also difficult to say whether the marriage was actually consummated or not. 12. The Trial Court has laid much emphasis that in cases relating to rape since the reputation of the prosecutrix is at peril, therefore, the court should insist upon placing reliance on her sole testimony and seeking corroboration would amount an insult to the injury, but the present case is full of peculiar circumstances, where the actual genesis of the alleged occurrence has not comeforth, rather the allegations as levelled by the prosecution could not be established by cogent evidence. It is a case of married lady. The accused Narinder Kumar was not impotent, so as to allow the other person to intervene in his sexual alliance, rather, the medical evidence led by the prosecution establishes that he was fit to indulge in intercourse. Notwithstanding the fact, as to what was received by him in the marriage, the prosecution itself has proved that a sum of Rs. 2,41,000/- was deposited in the joint account of the prosecutrix and accused Narinder Kumar. Therefore, in all human probabilities, accused Narinder Kumar would not have misbehaved with her and lose her sympathy, till such a huge amount is not exhausted. 13. The varying statements made by the prosecutrix have thrown a shadow of great doubt on the prosecution version. In the FIR (Ex.P19), the prosecutrix disclosed that her husband Narinder Kumar caught hold of her, whereas, Aman Kumar committed rape upon him, but in her substantive statement, she has testified that both of them committed rape on 28.4.2003. The only averment given in the FIR is that after the rape committed by Aman Kumar on 28.4.2003, Narinder Kumar apologised saying that such incident would not be repeated in future, but in her statement in the Court, she stated that she did not disclose about the incident as she was threatened by her husband. Again regarding the incident on 2.5.2003, she disclosed in the FIR about the rape committed by Aman Kumar, but later in the court, she alleged rape by both the accused. 14. Ram Singh (PW3) has stated that the incident was disclosed by the prosecutrix to her sister Malti in his presence, but Malti has not been examined. Again regarding the incident on 2.5.2003, she disclosed in the FIR about the rape committed by Aman Kumar, but later in the court, she alleged rape by both the accused. 14. Ram Singh (PW3) has stated that the incident was disclosed by the prosecutrix to her sister Malti in his presence, but Malti has not been examined. The prosecutrix in her initial statement disclosed that she narrated the whole story on repeated asking, though, nothing is mentioned about the same in the substantive statement. In the initial statement, she did not disclose as to what articles were demanded in dowry, but while appearing in the Court, she stated that the accused were demanding double bed, freezer and gold. She has stated that her husband was doing intercourse regularly with her, but the same goes against the medical evidence. She has admitted that she did not disclose about the commission of rape by her husband along with Aman Kumar on the two relevant dates. Ram Singh her father (PW3) has stated that her daughter used to ring them on the alternative days, but the prosecutrix in her cross-examination said that her husband and mother-in-law used to remain in the house from 20.4.2003 to 4.5.2003 and they never allowed her to make a call to her parents. Failure of the prosecutrix for not disclosing act of rape from 28.4.2003 to 6.5.2003 also implies us to hold that her testimony is not of worth reliance, so is the statement of Ram Singh (PW3), her father, for the contradiction made in it. It is also worthwhile to mention that Malti, to whom the incident was first of all disclosed by the prosecutrix, has not been examined. So, the story of narration of the incident to Malti, is also not believable. 15. The two allegations of demanding dowry and of committing rape at the hands of her husband and his friend, simultaneously appear to be contradictory and do not appeal to be reason. Had there been lust for dowry in the mind of the accused, then they would have waited for some days, rather than indulging in a shameful activity, which may take them to gallows, on that account only, without receiving anything on account of the demands made by them. 16. The medical evidence is also contradictory to the ocular version. The story regarding the demand of dowry also appears to be an after-thought. 16. The medical evidence is also contradictory to the ocular version. The story regarding the demand of dowry also appears to be an after-thought. It appears that since the marriage had gone to rough weather at the very threshold, therefore, the complainant with an intention to have vengeance put forth the version, which does not stand substantiated from the evidence on the record. Consequently, interference in the impugned judgment has become inevitable at our end. 17. For the foregoing reasons, while extending benefit of doubt to the accused, we accept both the appeals, and dismiss the revision petition. The accused are acquitted of the charges and they be set at liberty. Their bail bonds and surety bonds stand discharged. Fine, if paid, be refunded to the accused.