Punjab-Haryana High Court
Mamta vs Randhir & Ors on 22 September, 2014
Bench: Rajive Bhalla, Surinder Gupta
CRA-D-877-DB-2013 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-877-DB-2013
Date of decision : 22.09.2014
Mamta ..... Appellant
VERSUS
Randhir and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr.Vikas Chaudhary, Advocate, for the appellant.
Mr.Vinod Bhardwaj, Advocate, for respondent No.1.
Mr.Siddharth Gulati, Advocate, for respondent No.2.
Mr.Sandeep Varmani, Addl.A.G., Haryana,
for respondent No.3.
*******
RAJIVE BHALLA, J. (ORAL)
The appellant challenges judgment dated 01.04.2013, passed by the Additional Sessions Judge, Kaithal, acquitting respondents No.1 and 2 (herein) of offences under Sections 376/506/120-B of the IPC.
Counsel for the appellant submits that as the appellant was less than 18 years old on the date of the offence, even if it is presumed that it is a case of consensual sex, respondent No.1- Randhir Singh should have been convicted under Section 375, sixthly of the IPC which postulates that sexual intercourse with a girl below the age of eighteen with or without her consent, is rape. The date of birth of the appellant, as deposed by PW-10 Mrs.Kiran CRA-D-877-DB-2013 [2] Mishra, Head Mistress of the school, is 16.10.1994. The acquittal of the respondent No.1 by ignoring Section 375, sixthly of the IPC is, therefore, erroneous. It is further submitted that the finding of consensual acts of sex, recorded on the basis of alleged love letters adduced in defence, is perverse and arbitrary, as the appellant had no reason to write letters to respondent No.1-Randhir and even otherwise the sole statement of a prosecutrix alleging rape is sufficient to convict an accused provided the act of rape is proved. The deposition by the prosecutrix that she was constantly raped by Randhir by threatening her at knife point has remained unrebutted and, therefore, should have led to the conviction of respondent No.1.
Counsel for the respondents submit that a perusal of the admissions made by the prosecutrix, discussed in detailed by the trial Court, particularly letters Ex.DB to Ex.DG, prove a consensual relationship between the prosecutrix and Randhir. The prosecutrix having admitted these letters and various other facts, noticed by the trial Court, are sufficient to acquit the respondents as they clearly prove a case of consent and not one of rape. It is also contended that on 18.01.2013 i.e. the date of registration of the FIR, the prosecutrix was more than 18 years old and even if it is presumed that the alleged acts of sex did take place during a period of six months preceding 18.01.2013, the amendment to Section 375 of the IPC which provides that intercourse with a girl below 18 years with or without her consent is rape, does not apply to the present case. It is further CRA-D-877-DB-2013 [3] submitted that the evidence on record has been rightly construed by the trial Court as proving a case of consent as opposed to rape. The sole statement of a prosecutrix may depending upon the facts and circumstances of the case, be sufficient to convict an accused but where a prosecutrix admits to relevant facts that point to a consensual relationship, the sole statement of the prosecutrix cannot be considered as sufficient to infer evidence of rape.
We have heard counsel for the parties, perused the impugned order of acquittal and the record but are not inclined to hold that the opinion recorded by the trial Court is in any manner perverse, arbitrary, contrary to the evidence on record, violative of any provision of law or that any conclusion other than the conclusion recorded by the trial Court could have been possibly recorded.
The prosecutrix made a statement on 18.01.2013 levelling an allegation of rape against respondent No.1-Randhir. The prosecutrix also alleged that respondent No.2-Geeta conspired with Randhir to facilitate the rape. The police registered a case under Sections 376/506/120-B of the IPC, arrested the respondents, got the prosecutrix medico-legally examined, recorded her statement under Section 164 of the Cr.P.C. and upon completion of investigation filed a final report. The Additional Sessions Judge, Kaithal, after considering the final report framed charges against respondents No.1 and 2.
The prosecution adduced evidence which primarily CRA-D-877-DB-2013 [4] consists of the statement by the prosecutrix as PW-8 as no other family member or witness was examined by the prosecution, regarding the allegation of rape. The prosecution also relies upon deposition by PW-7 Dr. Simmi Kapoor, who medico-legally examined the prosecutrix.
The trial Court has after considering the evidence on record, particularly certain significant admissions made in letters Ex.DB to Ex.DG as well as certain other relevant facts held that these admissions and letters indicate a close and consensual relationship between the prosecutrix and Randhir and, therefore, acquitted the respondents. A relevant extract from the impugned judgment, reads as follows: -
"27. Even otherwise also, the love letters Ex.DB to Ex.DG were put up to the prosecutrix by the learned defence counsel which have been written by the prosecutrix to accused Randhir and she had admitted having been writing all these letters to the accused Randhir. As per contents of these love letters, it is further well proved that the prosecutrix as well as the accused Randhir have fallen in love with each other which further establishes the fact that the prosecutrix was in love with accused Randhir."
It would also be appropriate to point out that while deposing in Court, the prosecutrix did not depose about any threat and admitted to having written letters Ex.DB and Ex.DG, which CRA-D-877-DB-2013 [5] prove a relationship between the prosecutrix and respondent No.1- Randhir. The trial Court, thereafter, noticed certain other facts that the family of the prosecutrix shifted to the house of Ranbir Singh who is elder brother of Geeta-respondent No.2's husband. The trial Court also found that Ranbir wanted his younger brother (Geeta's husband) to be married to his wife's younger sister but as his younger brother married Geeta raises a doubt. The trial Court also held that no explanation is forthcoming, as to why the prosecutrix kept silent for six months and, therefore, relied upon letters Ex.DB and Ex.DG, and admissions made by PW-11 Sub Inspector Ram Kishan that Randhir and the prosecutrix have fallen in love, held that a consensual act of sex has been altered into rape. The submission made by counsel for the appellant that as on the date of the offence the prosecutrix was less than 18 years of age, Randhir should have been convicted for rape under Section 375, sixthly of the IPC, cannot be accepted. Section 375, sixthly of the IPC came into force on 03.02.2013 whereas the FIR in the present case was lodged on 18.01.2013. Section 375, sixthly would, therefore, not apply to the present case. Even otherwise, on 16.10.2012 the appellant was already 18 years old.
As regards the plea of rape simpliciter, the letters referred to by the trial Court and facts noticed by the trial Court are sufficient to raise an inference of an intimate relationship and a consensual act of sex. We, therefore, have no option but to dismiss the appeal and CRA-D-877-DB-2013 [6] affirm judgment recorded by the trial Court.
In view of what has been recorded hereinabove, the appeal is dismissed with no order as to costs.
[ RAJIVE BHALLA ]
JUDGE
22.09.2014 [ SURINDER GUPTA ]
Shamsher S.Sabharwal JUDGE
SHAMSHER SINGH
2014.10.27 12:42
I attest to the accuracy and
authenticity of this document
Chandigarh