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2014 DIGILAW 1711 (PNJ)

Pawan Kumar v. State of Haryana

2014-12-10

JITENDRA CHAUHAN

body2014
Jitendra Chauhan, J. 1. This appeal is directed against the judgment of conviction dated 31.03.2012 and order of sentence dated 04.04.2012, passed by the Additional Sessions Judge, Panipat, vide which the accused/appellant Pawan Kumar, was convicted for the offence punishable under Sections 342, 363, 376 and506 of the Indian Penal Code (hereinafter called as 'IPC') and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 10,000/- or in default of payment thereof, to further undergo RI for a period of one year under Section 363 IPC, RI for a period of seven years and to pay a fine of ` 10,000/- or in default of payment thereof, to further undergo RI for a period of one year under Section 376 IPC, RI for a period of one year and to pay a fine of ` 1000/- or in default of payment of fine to further undergo RI for one month under Section 342 of IPC and RI for a period of one year with fine of ` 1000/- and in default of payment of fine, to further undergo RI for one month under Section 506 IPC. All the sentences were ordered to run concurrently. The brief facts as set out in para No. 2 of the judgment of trial Court, is reproduced as under:- "On 29.09.2010, Sub Inspector Nahar Singh, along with Head Constable Vinod Kumar No. 595 and Lady Constable Sushma No. 211, was present at Hathwala turn, in connection with patrolling and crime detection duty, when complainant Shugan Chand met SI Nahar Singh and moved application to the effect that he was having two children, eldest of whom was Manisha, aged 15 years, followed by son Manish aged 13 years. His daughter Manisha used to study in 10th standard in Government school in the village, whom he had pulled out of the school about one month ago as Pawan Kumar @ Pappu son of Bishan Singh, of his village used to keep a bad eye upon her. His daughter Manisha had disclosed this fact to him, regarding which he had also talked with parents of Pawan Kumar, but they did not pay any heed. On 28.09.2010, at about 11.30 AM, his daughter Manisha had left home to dispose of garbage in an open plot, but did not return. His daughter Manisha had disclosed this fact to him, regarding which he had also talked with parents of Pawan Kumar, but they did not pay any heed. On 28.09.2010, at about 11.30 AM, his daughter Manisha had left home to dispose of garbage in an open plot, but did not return. They searched for Manisha at various places but could not find her. It was alleged that aforesaid Pawan Kumar @ Pappu had enticed away his daughter, with intention to marry her. It was prayed for recovering Manisha and taking legal action against Pawan Kumar @ Pappu. From the application, a case under Section 363/366 IPC was found to be made out. FIR was got registered after sending tehrir through HC Vinod Kumar. Sub Inspector started the investigation. During investigation, on 29.09.2010, Sub Inspector Nahar Singh recovered prosecutrix Manisha from Bus Stand, Samalkha and got conducted her medico-legal examination from General Hospital, Panipat. Thereafter, parcel containing clothes of prosecutrix, swabs and slides was taken into possession vide separate recovery memo and statement of prosecutrix was got recorded by the Magistrate under Section 164 Cr.P.C. On the demarcation of the prosecutrix, rough site plan of the place of occurrence, where accused Pawan Kumar had allegedly committed rape upon her, was prepared and prosecutrix was handed over to her parents. On 30.09.2010, Sub Inspector Nahar Singh arrested accused Pawan Kumar from Hathwala turn and got conducted his medico-legal examination from CHC, Samalkha. Thereafter, parcel containing underwear of accused was taken into possession vide separate recovery memo and scaled site plan of the place of occurrence was got prepared. On the same day, on the demarcation of accused Pawan Kumar, memo of demarcation of the place of occurrence was prepared and accused was produced before the Court. After the conclusion of investigation, challan against the accused was presented in the Court." On commitment, the accused was charge sheeted under Sections 363, 366-A, 342, 376 and 506 IPC, to which the accused/appellant pleaded not guilty and claimed trial. 2. In support of the case of prosecution, it examined PW-1 EHC Jagbir Singh; PW-2 Head Constable Kaptan Singh; PW 3 Complainant Shugan Chand; PW 4 Prosecutrix; PW 5 Deepak Garg; PW 6 SI Dalel Singh; PW 7 Inspector Subhash Chander; PW 8 EHC Krishan Kumar; PW 9 Dr. Shashi Lata; PW 10 Retired Sub Inspector Nahar Singh; PW 11 Dr. In support of the case of prosecution, it examined PW-1 EHC Jagbir Singh; PW-2 Head Constable Kaptan Singh; PW 3 Complainant Shugan Chand; PW 4 Prosecutrix; PW 5 Deepak Garg; PW 6 SI Dalel Singh; PW 7 Inspector Subhash Chander; PW 8 EHC Krishan Kumar; PW 9 Dr. Shashi Lata; PW 10 Retired Sub Inspector Nahar Singh; PW 11 Dr. Pankaj Batar and PW 12 EASI Naresh Kumar. 3. PW-1 EHC Jagbir Singh, prepared the scaled site plan Ex. P1 of the place of occurrence. 4. PW-2 HC Kaptan Singh deposed regarding handing over the seal parcels containing clothes, swabs and slides of the prosecutrix and underwear of accused/appellant to EHC Naresh. 5. PW-3 Sugan Chand, father of the prosecutrix, deposed regarding the whole occurrence and testified his signatures on the application Ex. P2, on the basis of which the present FIR Ex. P10 was registered. 6. PW-4 Prosecutrix herself narrated her tale. 7. PW-5, Deepak Garg deposed regarding motor cycle which was taken by him on sapurdari. 8. PW-6, SI Dalel Singh deposed regarding registration of formal FIR Ex. P10 and testified his endorsement Ex. P11 on Ex. P2. 9. PW-7, Inspector Subhash Chander testified his signatures on the report under Section 173 Cr.P.C., prepared by him. 10. PW-8, EHC Krishan Kumar, deposed regarding the arrest of accused and testified his signatures on memos Ex. P12 to Ex. P14. 11. PW-9, Dr. Shashi Lata, who had conducted the medicolegal examination of the prosecution, tendered her affidavit in evidence as Ex. PW 9/A and proved the MLR Ex. P3. She opined that the possibility of sexual intercourse with prosecutrix could not be ruled out. She also stated that there was no mark of any injury over any part of the body. 12. PW-10, SI Nahar Singh, the Investigating Officer, proved the whole investigation carried out by him. 13. PW-11 Dr. Pankaj Batar, conducted the medical examination of accused, tendered affidavit in his chief examination as Ex. PW 11/A and opined that there was no evidence to suggest that accused could not perform sexual intercourse. 14. PW-12 EASI Naresh Kumar, had deposited the parcels in FLS Madhuban. 15. The statement of the accused under Section 313 Cr.P.C., was recorded. He pleaded innocence and alleged false implication. He, however, did not lead any evidence in his defence. 16. PW 11/A and opined that there was no evidence to suggest that accused could not perform sexual intercourse. 14. PW-12 EASI Naresh Kumar, had deposited the parcels in FLS Madhuban. 15. The statement of the accused under Section 313 Cr.P.C., was recorded. He pleaded innocence and alleged false implication. He, however, did not lead any evidence in his defence. 16. After hearing the learned counsel for the parties and after going through the evidence on record, the trial Court convicted and sentenced the accused/appellant, as stated hereinbefore. 17. Feeling aggrieved, against the judgment of conviction and order of sentence passed by the trial Court, the instant appeal was filed by the accused/appellant. 18. Learned counsel for the appellant argued that the learned trial Court has misread the evidence of the prosecution; the prosecution has failed to prove the case against the appellant, and no offence is made out against the appellant. It is submitted that the prosecutrix was allegedly picked up by the accused from outside the house of the prosecutrix, while she was on the way to throw the household waste material. Though, it is asserted that she refused to accompany him but she did not raise any alarm, though she was allegedly kidnapped from her house, taken to Panipat and thereafter to Samalkha. But the prosecutrix did not resist the act of the accused. The prosecution version is highly improbable that the prosecutrix was forcibly abducted from near her house and was taken on motor cycle passing through the busy roads. He further argued that the prosecutrix was never kidnapped or raped by the appellant/accused. In fact, she was having love affair with the appellant/accused and wanted to marry him. 19. It is further contended that as per FSL report Ex. P15, no semen was detected on the clothes of the prosecutrix. He refers to the statement of PW-9, Dr. Shashi Lala, stating therein that prosecutrix was used to regular sexual intercourse. No internal injury was found on the person of the victim/prosecutrix. No tenderness or bleeding was found on her person. Even, she had not disclosed the name of person who had committed sexual intercourse upon her. Per contra, in her statement, she has specifically stated that appellant/accused had worked as labourer when her father constructed his house and he used to tease her. No tenderness or bleeding was found on her person. Even, she had not disclosed the name of person who had committed sexual intercourse upon her. Per contra, in her statement, she has specifically stated that appellant/accused had worked as labourer when her father constructed his house and he used to tease her. The learned counsel refers to the statement of the prosecutrix, recorded under Section 164 Cr.P.C. (Ex. P4), wherein she has stated that accused tried to commit rape upon her, so, the ingredients of Section 376 IPC were missing. 20. It is further contended that the prosecutrix has specifically stated that accused/appellant used to tease her but she never reported the matter to anyone as she was having love affair with the accused/appellant and the present case was registered under the threat of her parents. The room where the prosecutrix was allegedly taken is surrounded by the inhabitants but she did not raise any hue and cry. 21. Lastly, it is argued that the appellant/accused has undergone substantial part of the sentence i.e. 4 years out of substantive sentence of 07 years. The appellant was about 20 years of age at the time of registration of FIR, therefore, a lenient view may be taken in the matter of sentence, in case the Court is not inclined to accept the present appeal. 22. On the other hand, the learned State counsel submits that the prosecution has fully proved its case against the accused/appellant. The victim, in the instant case, was a minor school going girl of 15 years at the time of incident. The place of occurrence and all other circumstances confirming the rape are fully established. PW-9 Dr. Shashi Lata, has specifically stated that possibility of sexual intercourse cannot be ruled out. The prosecutrix has specifically stated that appellant/accused had committed rape upon her and she duly identified him before the Court. The sole testimony of the prosecutrix is sufficient to prove the guilt of the appellant/accused. 23. This Court has scrutinized the lower Court record carefully with the able assistance of the parties. 24. The prosecutrix has specifically stated that appellant/accused had committed rape upon her and she duly identified him before the Court. The sole testimony of the prosecutrix is sufficient to prove the guilt of the appellant/accused. 23. This Court has scrutinized the lower Court record carefully with the able assistance of the parties. 24. In the statement of prosecutrix, recorded on 18.03.2011, before the trial Court, she had stated that on 28.09.2010, she came out of her house for throwing the household waste material; at that time accused Pawan forcibly made to sit her on his motor cycle and took her to Panipat and further took her to Samalkha. She was confined in a bolted room from outside. The accused went away for sometime and on return, he committed rape upon her without her consent and kept her in the room for the whole night. In her cross examination, she has stated that Samalkha bus stand comes in the way from Dikadla to Panipat. Numerous persons were present at Samalkha bus stand, but she did not raise any alarm. She reached Panipat within 2/3 hours. Then she reached Samalkha at 3.30 pm. The room where she was confined, is surrounded by inhabitants. It is unbelievable that once the appellant/accused took her on a motor cycle passing through busy roads, confined her in a bolted room and went away for some time but she did not raise any alarm. The said room was surrounded by inhabitants. As per the testimony of PW-9, Dr. Shashi Lata, the prosecutrix was used to regular sexual intercourse. The appellant/accused had worked as a labourer when the father of prosecutrix had constructed his house but at the time of medico-legal examination of the prosecutrix, she did not disclose the name, who had committed sexual intercourse upon her. The appellant/accused and the prosecutrix are residents of the same vicinity. The circumstances go to prove that the prosecutrix was a consenting party. Her statement recorded under Section 164 Cr.P.C., reads as under:- "That on 28.09.2010 at 12.00 noon, I went outside of my house for throwing the household waste material. The appellant/accused and the prosecutrix are residents of the same vicinity. The circumstances go to prove that the prosecutrix was a consenting party. Her statement recorded under Section 164 Cr.P.C., reads as under:- "That on 28.09.2010 at 12.00 noon, I went outside of my house for throwing the household waste material. On the way, one boy from the nearby locality (whose name is Pappu) forcibly made to sit me on his motor cycle and took me to Panipat and thereafter, he took me to Samalkha and confined me in a room there and bolted the room from outside and went away for sometime. After five minutes, he came back, tease me and tried to commit rape with me. Thereafter, he went away and unfortunately, the room was not bolted and I went away from there and I informed my parents through mobile phone after arranging the same from somebody and they took me to home. Pappu has threatened me that if I disclosed this fact to any other person, he would kill myself." 25. From the statement of the prosecutrix, recorded under Section 164 Cr.P.C., by the Magistrate and the statement made before the trial Court, it clearly made that the prosecutrix has made substantial and material improvements in her statements which make prosecution case doubtful. 26. It is a settled proposition of law that sole testimony of prosecutrix can be relied upon, but that can only be done where the conscience of Court is satisfied about the truthfulness of the prosecutrix version. However, in this case, the statements of prosecutrix are untrustworthy, unreliable and unacceptable. 27. For the reasons recorded above, it is held that the prosecution has failed to prove its case against the accused/appellant beyond a reasonable shadow of doubt. The benefit of doubt is extended to the appellant. Accordingly, the present appeal is accepted, the judgment of conviction, and order of sentence passed upon the accused/appellant Pawan Kumar @ Pappu, reflected in the opening para are set aside. He stands acquitted of the charges framed against him by giving him the benefit of doubt. He is in custody. He be set at liberty forthwith, if not required in any other case. The appeal stands allowed.