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Punjab High Court · body

2016 DIGILAW 1523 (PNJ)

State of Haryana v. Sanjay

2016-05-26

GURMIT RAM, S.S.SARON

body2016
JUDGMENT : GURMIT RAM, J. CRM-33725 of 2015 Heard. Sufficient cause has been shown for condonation of 243 days' delay in filing of the application for the grant of leave to appeal. Hence this delay of 243 days is condoned and this criminal miscellaneous application stands accepted and disposed of accordingly. CRM-A-1715-MA of 2015 1. This application has been filed by the applicant – State of Haryana u/S 378(3) of the Code of Criminal Procedure (for short – 'Cr.P.C.') for the grant of leave to file appeal against the judgment dated 11.11.2014 passed by the Court of learned Additional Sessions Judge, Gurgaon in criminal case bearing FIR No.292 dated 18.11.2013 u/Ss 346, 363, 366-A, 376 of the Indian Penal Code (for short – 'IPC') and u/S 3 of Protection of Children from Sexual Offences Act, 2012 (for short – 'POCSO Act'), Police Station Farrukh Nagar, Gurgaon, vide which the accused (respondent-herein) was acquitted of the charges u/Ss 363, 366, 376, IPC and u/S 4 of the POCSO Act, 2012. 2. The case of the prosecution before the learned trial Court, in nutshell, was that on 18.11.2013, complainant Animesh Kumar moved a complaint/application Ex.P1 to the police of Police Station Farrukh Nagar, Gurgaon detailing the circumstances in which his minor daughter had been missing from the house. It was mentioned in the application that his said daughter, who was a student of 9th class in Girls Senior Secondary School, Farrukh Nagar aged 14 years went missing from the house since 16.11.2013 at about 6:00 p.m. He did not know as to whether she had gone from the house at her own or had been enticed away by some-body. On the basis of this complaint, initially FIR (Ex.PL) u/S 363, IPC was registered. Then during investigation, prosecutrix was recovered on 21.11.2013 at Fajilpur Road. Her statement under Section 164, Cr.P.C., was got recorded. Then on the basis of her this statement, offences u/Ss 346, 366-A, 376, IPC and u/S 3 of the POCSO Act were added in this case. She was got medico-legally examined. Accused was arrested in this case and he was also got medico-legally examined. Statements of witnesses were recorded. The Investigating Officer inspected the spot and prepared site-plan Ex.PO. Then on the basis of her this statement, offences u/Ss 346, 366-A, 376, IPC and u/S 3 of the POCSO Act were added in this case. She was got medico-legally examined. Accused was arrested in this case and he was also got medico-legally examined. Statements of witnesses were recorded. The Investigating Officer inspected the spot and prepared site-plan Ex.PO. On completion of investigation, challan in this case was presented in the Court of learned Illaqa Magistrate, Pataudi, who further committed this case to the Court of learned Sessions Judge, Gurgaon for trial after making compliance of the provisions of Section 207 of Cr.P.C. The trial of this case was dealt with by learned Additional Sessions Judge, Gurgaon. 3. Finding a prima facie case for the offences punishable u/Ss 363, 366 and 376 of the IPC and u/S 4 of POCSO Act, 2012 against the accused (respondent-herein), he was charge-sheeted accordingly vide order dated 3.2.2014, to which, he pleaded not guilty and claimed trial. 4. During the trial, the prosecution examined as many as fifteen witnesses in total to establish its case against the accused. 5. Then on the conclusion of prosecution evidence, the accused (respondent-herein) was duly examined as required under the provisions of Section 313 of Cr.P.C. Entire incriminating evidence as brought on the file during the trial of case against him was put to him, which he denied entirely and pleaded his innocence and false implication in this case. However, accused (respondent-herein) did not lead any evidence in his defence. 6. The learned trial Court after hearing the learned counsel for both the parties and going through the record as well came to the conclusion that prosecution has failed to prove its case against the accused (respondent-herein) and as such he was acquitted of the charges u/Ss 363, 366, 376, IPC and u/S 4 of the POCSO Act, 2012 vide the impugned judgment. 7. The applicant – State being not satisfied with the impugned judgment has come up before this Court by way of instant application for the grant of leave to file appeal against this judgment. 8. We have heard learned counsel for the applicant – State and also perused the record as available on the file with his able assistance. 9. 7. The applicant – State being not satisfied with the impugned judgment has come up before this Court by way of instant application for the grant of leave to file appeal against this judgment. 8. We have heard learned counsel for the applicant – State and also perused the record as available on the file with his able assistance. 9. Learned counsel for the applicant – State has contended that prosecutrix was a minor being of the age of about 15 years on the date of alleged occurrence and as such she was not competent to give her any consent in the eyes of law and hence the findings of learned trial Court that prosecutrix was a consenting party to the commission of the alleged crime are patently wrong being against the law and evidence on record and as such same are liable to be set aside. 10. So the age of the prosecutrix in this case is the burning issue and as such the evidence led by the prosecution qua this issue is to be seen and appreciated. The complainant – Animesh Kumar, father of the prosecutrix, appeared as PW10. He stated that his daughter – Nisha (prosecutrix) who was missing since 16.11.2013 was aged about 14 years. In his cross-examination, he stated her date of birth as 14.12.1998. His (complainant – Animesh Kumar) marriage was solemnized on 26.5.1997. PW12 Satyavir Singh Yadav, Principal, Government Boys Senior Secondary School, Farrukh Nagar, Gurgaon produced the School Leaving Certificate Ex.PJ of Nisha (prosecutrix), wherein her date of birth was recorded as 15.11.1998. Her date of birth as said by her father above as PW10 is 14.12.1998. Then no certificate issued from the office of Registrar, Birth and Death, concerned was produced on record in order to ascertain the actual date of birth of the prosecutrix. Regarding date of marriage of the father of the prosecutrix, no documentary evidence or any other evidence was led to prove that his marriage was solemnized on 26.5.1997. Then it also came in the statement of PW12 – Satyavir Singh Yadav that entry regarding date of birth of the prosecutrix in the School Leaving Certificate (Ex.PJ) was made on the basis of her previous School Leaving Certificate (Ex.PK) issued by the Headmistress, Government Primary School, Mohammad Pur, Gurgaon. Then it also came in the statement of PW12 – Satyavir Singh Yadav that entry regarding date of birth of the prosecutrix in the School Leaving Certificate (Ex.PJ) was made on the basis of her previous School Leaving Certificate (Ex.PK) issued by the Headmistress, Government Primary School, Mohammad Pur, Gurgaon. Then no evidence came on the record as to who got admitted the prosecutrix initially in the primary school and on what basis the entry regarding her date of birth was made in the record at that time. Then no medical test of the prosecutrix was got conducted in order to determine her age since it is found recorded in the cross-examination of PW3 – Dr. Anshul Singh, Medical Officer, General Hospital, Gurgaon that she did not conduct any test regarding age of the prosecutrix. So in the light of the above discussed evidence of the prosecution, it is held that prosecution had failed to establish that prosecutrix was a minor on the date of alleged occurrence and so the findings of the learned trial Court qua this issue are held to be correct. 11. Then the medical evidence available on the file also did not support the prosecution version that respondent – herein (accused) had committed rape on the prosecutrix forcibly on the night of 16.11.2013. After recovery, she (prosecutrix) was produced before PW3 - Dr. Anshul Singh, Medical Officer, who medico-legally examined her. After her examination, she observed as under: “External Examination:- No injuries seen anywhere on the body, face, mouth. Fingernails short and clean. Clothes :- no tear/soiling. Internal Examination:- No injuries over labia. No S/S of any forced entry in vagina/anus. No bleeding seen from any orifice.” Then this witness in her cross-examination stated that she did not find any internal or external injuries marks on the person of the prosecutrix. 12. Then it was the case of prosecution that after the alleged recovery of the prosecutrix, she was produced before Judicial Magistrate Ist Class, Pataudi and her statement Ex.PH under Section 164, Cr.P.C., was got recorded. In her said statement (Ex.PH), it was found recorded that the respondent - herein (accused) met her on 16.11.2013 at about 7:00 p.m. at the stand of village Mohammad Pur, where she had gone at her own. He (accused) kept her for one night in the house of his friends. In her said statement (Ex.PH), it was found recorded that the respondent - herein (accused) met her on 16.11.2013 at about 7:00 p.m. at the stand of village Mohammad Pur, where she had gone at her own. He (accused) kept her for one night in the house of his friends. Then he left her near the Railway Station of Taj Nagar in the morning at 3:00 A.M. Then she went to Rewari by boarding a train. Then she came back to Taj Nagar in the evening by train. Thereafter, she slept in the room adjoining to the school along-with two other persons where the police came at about 9:00/9:30 p.m. and took her to the police station. 13. The above version of the prosecutrix made by her in her statement Ex.PH is not in consonance with the prosecution version. As above-said, the version of the prosecution was that prosecutrix was missing from her house since the evening of 16.11.2013. The matter was reported to the police in this regard on 18.11.2013 vide an application Ex.P1. She was recovered on 21.11.2013. If the above statement of prosecutrix Ex.PH is read between the lines, then it is going to show that she was recovered by the police on the night of 17.11.2013 at about 9:00/9:30 p.m. Moreover, she did not say anywhere in her this statement that she was kidnapped by the respondent – herein (accused) and he committed rape upon her forcibly during night time in the house of his friends. 14. Then PW8 – prosecutrix in her cross-examination stated that at the relevant time, she was going to attend the call of nature at an open place near bus-stand which was at a distance of five minutes walk from her house. There was no lavatory in their house. On the other hand, her father as PW10 stated that there was a lavatory and bathroom in his house which was used by all of them. 15. Then there is also a delay of two days in lodging the FIR in this case since the alleged occurrence was dated 16.11.2013 and the matter was reported to the police in this regard on 18.11.2013. 15. Then there is also a delay of two days in lodging the FIR in this case since the alleged occurrence was dated 16.11.2013 and the matter was reported to the police in this regard on 18.11.2013. No doubt, in a case of kidnapping, rape etc., the delay in lodging the FIR is generally not considered to be material to dislodge the version of prosecution, but when the prosecution evidence qua the prosecution version is itself inconsistent, untrustworthy as well as unreliable, then delay in lodging the FIR also has some say to create a doubt about the correctness of prosecution version. Then as above-said, as per the statement Ex.PH of prosecutrix, she was got recovered by the police on 17.11.2013 at about 9:00/9:30 p.m. and taken to the police station. So this fact also goes against the prosecution version. 16. In the light of above discussion, no case for the grant of leave to appeal against the impugned judgment is made out. Hence the application stands dismissed.