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2009 DIGILAW 45 (PNJ)

State of Haryana v. Munesh @ Chhotania

2009-01-08

DAYA CHAUDHARY, SATISH KUMAR MITTAL

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JUDGMENT Satish Kumar Mittal, J 1. The State of Haryana has filed this application under Section 378(3) of the Code of Criminal Procedure for grant of leave to appeal from an order of acquittal dated 18.3.2008 passed by the Sessions Judge, Narnaul in Sessions Case No.11 of 2007 titled as “State Versus Munesh @ Chhotania” arising from FIR No.164 dated 1.11.2006 under Sections 363, 366-A, 376 and 506 IPC, Police Station Ateli. 2. In the present case, the aforesaid FIR was registered against the sole accused Munesh @ Chhotania by Som Dutt, father of the prosecutrix, by stating that on 31.10.2006 he went to sleep in the house at night with other family members, and when he got up at 5.00 A.M., he found that the prosecutrix was not present in the house. Efforts were made to trace her. Then he came to know that accused Munesh @ Chhotania was also absconding from his house. When the father of the accused did not give any satisfactory reply, the matter was reported to the police with a suspicion that Munesh @ Chhotania had kidnapped his daughter. On the said statement, the FIR in question was registered against the accused on 1.11.2006 under Sections 363, 366-A, 376 and 506 IPC. 3. On 2.11.2006, the prosecutrix and the accused were apprehended at Delhi. Accused was arrested. The prosecutrix was medically examined. Though the police recorded the statement of the prosecutrix under Section 161 Cr.P.C., no statement of the prosecutrix was got recorded by the Judicial Magistrate under Section 164 Cr.P.C. 4. In the alleged statement recorded before the police, the prosecutrix had stated that on the night of 31.10.2006 when she came out of the house to urinate, she was overpowered by the accused. Under a threat to kill, she was taken to cremation ground where she was subjected to sexual intercourse against her consent in a Tibara. Thereafter, she was taken to Railway Station, Kathuwas and then to Rewari. After that, she was taken to Delhi Cantt by train. On the next day, she was taken to Mangolpuri from where she and the accused were taken into custody. 5. After investigation, the challan was filed and charges were framed under Sections 363, 366-A, 376 and 506 IPC to which the accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined 14 witnesses. On the next day, she was taken to Mangolpuri from where she and the accused were taken into custody. 5. After investigation, the challan was filed and charges were framed under Sections 363, 366-A, 376 and 506 IPC to which the accused pleaded not guilty and claimed trial. In support of its case, the prosecution examined 14 witnesses. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. In defence, the accused examined two witnesses and produced ten letters (Ex.D1 to Ex.D10) written by the prosecutrix to him on different dates. 6. After considering the evidence led by the prosecution as well as the defence and appreciating the same, the trial court acquitted the accused while coming to the conclusion that at the time of the alleged occurrence, the prosecutrix was about 20 years of age and she was the consenting party to the charges of rape levelled against the accused. 7. Against the order of acquittal, the State has filed the instant appeal along with an application for leave to appeal. 8. Learned counsel for the State submitted that the trial court without appreciating the evidence led by the prosecution in its right perspective and while putting much reliance upon the birth certificate (Ex.D11) produced by the accused, has wrongly come to the conclusion that at the time of the alleged occurrence the prosecutrix was near-about 20 years of age. He submitted that in this regard the trial court has ignored the Medico Legal Report (Ex.PB) as well as statement of the prosecutrix recorded before the police. 9. After hearing the learned counsel for the parties and going through the judgment of acquittal, we do not find any illegality or perversity in the aforesaid finding recorded by the trial Court. In our opinion, the trial Court has rightly relied upon the birth certificate (Ex.D11) issued by the office of Civil Surgeon, Narnaul, which has been duly proved by examining Dev Karan, Statistical Assistant, office of Civil Surgeon, Narnaul, as DW1, depicting the date of birth of the prosecutrix as 8.9.1986. The mother of the prosecutrix has not been examined. The father of the prosecutrix, who has been examined as PW13, in his cross-examination had stated that he could not tell the date of birth of the prosecutrix. The mother of the prosecutrix has not been examined. The father of the prosecutrix, who has been examined as PW13, in his cross-examination had stated that he could not tell the date of birth of the prosecutrix. Thus, in our opinion, the trial Court has rightly come to the conclusion that the prosecution has failed to establish that at the time of the alleged occurrence the prosecutrix was less than 16 years. In our opinion, the age of the prosecutrix recorded in the Medico Legal Report (Ex.PB) and the statement before the police, is not sufficient to rebut the presumption of correction of the date of birth recorded in the Births and Deaths Register. The birth certificate (Ex.D11) issued by the Health Department of the State Government under the provisions of the Registration of Births and Deaths Act, 1969 is an authentic proof regarding the age, the presumption of which has not been rebutted by the prosecution. 10. Secondly, learned counsel for the State submitted that the conclusion arrived at by the trial Court that the prosecutrix was the consenting party of the alleged charges, is perverse and based upon wrong appreciation of evidence. We do not find any substance in this argument also. Not only the medical evidence (statement of PW1-Dr.Rekha Yadav, L.M.O. at C.H.C., Ateli), but the conduct of the prosecutrix during the period she remained in the company of the accused, clearly indicate, as discussed and detailed in para 26 of the judgment of the trial Court, that the prosecutrix was accompanying the accused on her free will and was a consenting party. This conclusion arrived at by the trial Court on appreciation of the oral evidence, is also corroborated by one important factor, the ten letters (Ex.D1 to Ex.D10) written by the prosecutrix to the accused prior to the alleged occurrence on different dates. The prosecutrix in her statement has admitted the writing of these letters, but she stated that those letters were got written from her under threat when she was accompanying the accused. This part of the version of the prosecutrix is not trustworthy because these ten letters, running into 15 pages, were written by the prosecutrix to the accused on different dates. In these letters, it has been specifically written that she is ready to run away with the accused. This part of the version of the prosecutrix is not trustworthy because these ten letters, running into 15 pages, were written by the prosecutrix to the accused on different dates. In these letters, it has been specifically written that she is ready to run away with the accused. In our opinion, in the facts and circumstances of the case, and the aforesaid discussion, no different view can be taken as taken by the trial Court from the evidence led by the prosecution. Thus, we do not find any ground to grant leave to appeal Dismissed.