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2020 DIGILAW 649 (PNJ)

Pardeep Kumar v. State Of Haryana

2020-02-19

MANJARI NEHRU KAUL

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JUDGMENT Manjari Nehru Kaul, J. - Instant appeal has been filed against the judgment of conviction and order of sentence dated 03/05.11.2003 passed by Addl. Sessions Judge Sonepat vide which the appellant was convicted and sentenced as under: Name of the convict Offence under Section Period of sentence Fine imposed Period of sentence in default of payment of fine Pardeep Kumar 366 IPC Rigorous imprisonment (RI) for 03 years Rs. 250/- RI for one month 376 IPC RI for 07 years Rs. 500/- RI for two months 344 IPC and 506 IPC RI for 01 year - - 328 IPC RI for 03 years Rs. 250/- RI for one month 2. All the sentences were ordered to run concurrently. 3. Prosecution case was set in motion on the statement Ex. PA of the prosecutrix recorded on 10.02.2002 by PW-SI Sant Kumar wherein she stated that on 20.12.2001 at about 7.00 pm she had gone to answer the call of nature. As soon as she got up after easing herself, the accused-appellant, who was a co-villager, caught hold of her from the rear side and dragged her to his house where he confined her in the chaubara. It was further alleged that even though she tried to raise hue and cry, the accused-appellant succeeded in taking her to his house by gagging her mouth. On reaching his chaubara, the accused-appellant subjected her to sexual assault and forcible intercourse. He threatened her with dire consequences including the elimination of her father and brothers in case she dared to put up any resistance. She further alleged that she was kept confined in the chaubara and continuously raped by the accused-appellant after administering her some intoxicants till her providential escape, as on one particular date the accused-appellant forgot to bolt the door from outside. On the basis of the aforesaid statement, FIR No. 22 dated 10.02.2002 for offences under Sections 363, 366, 344, 376, 328, 506 IPC was registered at Police Station Ganaur against the accused-appellant. On completion of investigation, the appellant after being charged for the commission of the aforementioned offences was put to trial. A supplementary statement Ex. PB of the prosecutrix was also recorded and thereafter she was medico-legally examined by PW-6 Dr. P.L. Bansal. 4. The prosecution in support of its case examined as many as 13 witnesses including the prosecutrix as PW-1. 5. A supplementary statement Ex. PB of the prosecutrix was also recorded and thereafter she was medico-legally examined by PW-6 Dr. P.L. Bansal. 4. The prosecution in support of its case examined as many as 13 witnesses including the prosecutrix as PW-1. 5. All the incriminating evidence appearing against the appellant were put to him under Section 313 Cr.P.C. to which he pleaded his innocence and false implication. The accused-appellant also produced some documents Ex. D-1 to D-39 in support of his case. It was stated by the accused-appellant that he had been in a relationship with the prosecutrix for the last many years. The prosecutrix had in fact left the house of her own accord but since they belonged to the same village, as per their local customs, they could not have performed marriage. The family of the prosecutrix was thus, nursing a grudge against him. Resultantly, the family of the prosecutrix got him implicated in a false case of rape. 6. The trial Court on appraisal of the evidence and other material on record convicted the accused-appellant for the offences charged with and sentenced him as already detailed above. 7. Learned counsel for the appellant vehemently argued that on perusal of the FIR, it is very apparent that the prosecutrix, who was admittedly a major on the date of occurrence, was a consenting party and had accompanied the appellant of her own free will. It was further submitted that it could not be digested that the chaubara of the appellant where the rape was allegedly committed and where the prosecutrix was confined for almost fifty days was in close vicinity to the house of the prosecutrix yet the co-villagers and the neighbours failed to know of her illegal confinement in the chaubara. It was further submitted that the factum of the prosecutrix being a consenting party was evident from the fact that she was allegedly abducted by the appellant on 20.12.2001 and the father of the prosecutrix did not even lodge a missing report qua his daughters disappearance. It was also alleged that the medical evidence also corroborated the factum of the prosecutrix being a consenting party as no external injury was noticed by PW-6 Dr. P.L. Bansal on the person of the prosecutrix during her medical examination. 8. It was also alleged that the medical evidence also corroborated the factum of the prosecutrix being a consenting party as no external injury was noticed by PW-6 Dr. P.L. Bansal on the person of the prosecutrix during her medical examination. 8. Learned State counsel on the other hand vehemently argued that the prosecutrix had levelled serious allegations against the appellant of violating her person and committing rape upon her continuously for 50 days. It was urged by the State counsel that since she had been intoxicated by the appellant, the prosecutrix was unable to raise any hue and cry. It was further submitted that the prosecutrix clearly stated that she had suffered abrasions on her body, which she had shown to the lady doctor during her medical examination as well as to the investigating agency. 9. I have heard learned counsel for the parties and minutely gone through the evidence and other material available on record. 10. It is the admitted case of the prosecution that the chaubara where the prosecutrix was confined by the appellant for as many as fifty days was a very much frequented place. No doubt, when the prosecutrix was allegedly abducted by the appellant, it was around 7.00 pm in the evening but the fact of the matter is that the chaubara where she was allegedly confined was not in an isolated area of the village but in the heart of the village. The medical evidence is also at complete variance with the ocular testimony of the prosecutrix. As per the prosecutrix, when she was medico-legally examined by PW-6 Dr. P.L. Bansal, she had shown the injuries suffered by her to the doctor, however, a perusal of the medical evidence clearly reveals otherwise inasmuch as no external injury was found on the person of the prosecutrix by the doctor. Further, as per the prosecutrix, she was continuously raped by the accused-appellant after being intoxicated. PW-2 Jai Kanwar, father of the prosecutrix, deposed during his testimony that when the prosecutrix reached back home, she was deeply intoxicated. Thereafter, they immediately went to the police station to lodge the FIR in question and an hour thereafter she was medico-legally examined by PW-6 Dr. P.L. Bansal. Strangely, had she been actually intoxicated by the accused-appellant, PW-6 Dr. P.L. Bansal would not have failed to notice the signs of intoxication, if any. PW-6 Dr. Thereafter, they immediately went to the police station to lodge the FIR in question and an hour thereafter she was medico-legally examined by PW-6 Dr. P.L. Bansal. Strangely, had she been actually intoxicated by the accused-appellant, PW-6 Dr. P.L. Bansal would not have failed to notice the signs of intoxication, if any. PW-6 Dr. P.L. Bansal categorically stated during her evidence that she did not notice any sign of intoxication and also did not find any external injury on her person. Not only this, PW-12 SI Sant Kumar also in his cross-examination admitted that when the prosecutrix was brought to the police station, she did not look intoxicated. All these circumstances definitely raise eye-brows about the veracity of the prosecution version and indicate that the prosecutrix was seemingly a consenting party. 11. Further, as per the prosecutrix herself, during the fifty days period when she was forcibly kept confined by the accused-appellant inside the chaubara, he would go out to get meals and tea for her. It is thus, indeed very strange that had she been confined against her wishes, inside the chaubara as alleged, she would have got ample opportunity to rush to the roof and raise alarm and shout out for help, which admittedly she never did. No doubt, she deposed before the trial Court that some of the houses near the chaubara were deserted but in her cross-examination she admitted that there was a flight of stairs going upto the roof, which overlooked some houses and some streets, which were inhabited. In this factual background, it does not appeal to reason as to why she would have still chosen not to rush to the roof of the chaubara and cry out for help. It is not the case of the prosecutrix that the door leading to the roof would be bolted or locked from outside by the accused-appellant. In the case in hand, the version of the prosecutrix comes across as unnatural, unconvincing and not worthy of reliance. 12. As a sequel to the above, I have no hesitation in setting aside the impugned judgment dated 03.11.2003 passed by the Court below. Accordingly, the appeal filed by the appellant stands allowed. The accused-appellant is acquitted of the charges framed against him under Sections 363, 366, 344, 376, 328 and 506.