Punjab-Haryana High Court
Rajni Garg vs State Of Haryana & Anr on 14 November, 2014
Author: T.P.S. Mann
Bench: T.P.S. Mann
CRA-D- 1577 -DB-2014 (O&M) :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-1577-DB-2014 (O&M)
Date of decision : November 14, 2014
Rajni Garg
...... Appellant
Versus
State of Haryana and another
......Respondents
CORAM : HON'BLE MR.JUSTICE T.P.S. MANN
HON'BLE MR.JUSTICE GURMIT RAM
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1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
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Present : Mr. Parmod Chauhan, Advocate,
for the petitioners.
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GURMIT RAM, J.
1. This appeal has been filed by the appellant, who is daughter of Sh. Ram Niwas Garg against the judgment dated 07.07.2014 passed by the Court of learned Additional Sessions Judge, Gurgaon, vide which respondent No.2, who was accused before the learned trial Court has been acquitted of the charges punishable under Sections 376 and 506 of the Indian Penal Code ("IPC" for short) in criminal case bearing FIR No.476 dated 27.11.2013, Police Station Kherki Daula, Gurgaon.
2. The case of the prosecution in brief before the learned trial Court is that, a telephone message was received in the abovesaid Police GAURAV SOROT 2015.01.07 10:27 I attest to the accuracy and authenticity of this document CRA-D- 1577 -DB-2014 (O&M) :2:
Station from the office of Commissioner of Police, Gurgoan on 27.11.2013 to the effect that prosecutrix (name concealed) daughter of Sh. Ram Niwas Garg had been ravished. Thereupon Chandgi Ram ASI along with some police officials including lady Constable Suman went to the office of Commissioner of Police, Gurgaon where prosecutrix was already found present. She moved a written complaint with regard to the entire incident. She informed that she met accused Gaurav Bansal in the year 2010 who used to chase her everywhere and had forced her to have friendly relations with him under the grab of marriage. Further he also used to say to her that he would settle down within one or two years and would marry her thereafter. He also used to take her in his car to the park alone and also used to play with her body despite her resistance by claiming that he is her husband. In this way the accused had used her physically as and when he desired. Finally the accused demanded a sum of `25,00,000/- in dowry for marrying her and on hearing this from the accused, she was totally perturbed. On 3rd / 4th August, 2013 accused came to her house at about 8:00 P.M., when she and her sister-in-law were alone in the house. At that time her sister-in-law was cooking food in the kitchen. Accused asked her to show her room on the first floor of the house. When they went upstairs, the accused bolted the door of the room and started kissing her by holding her tightly in his grip. When she resisted him, he kept on saying that he is going to marry her. Further the accused started fondling her private parts and put his male organ into her mouth. She felt very bad and started crying. He requested her not to disclose this fact to anybody as he would marry her on the occasion of Diwali. She could not tell anything to her sister-in-law due to shame and also for the reason that accused had promised to marry GAURAV SOROT 2015.01.07 10:27 I attest to the accuracy and authenticity of this document CRA-D- 1577 -DB-2014 (O&M) :3:
her. Now the accused is avoiding to marry her on one pretext or the other. Besides this, he also intimidated her criminally by saying that he would not marry her and if she dared to take any action against him, then he would get her as well as her family members killed. Accordingly the instant case was registered against the accused for the offence punishable under Sections 376 and 506, IPC. During investigation of the case, prosecutrix was got medically examined from the General Hospital, Gurgaon. Her statement under Section 164 Cr.P.C. was also got recorded. Accused was also arrested in this case on 27.11.2013 and his medical examination was also got done. Statements of witnesses were recorded. On completion of investigation, challan was presented against the accused in the Court.
3. Finding a prima facie case under Sections 376(2)(n) and 506, IPC, against the accused, he was charge-sheeted accordingly, to which he pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case against the accused examined as many as eleven witnesses in total before the learned Trial Court.
5. Thereafter, accused was duly examined under Section 313, Cr.P.C., in which he denied all the incriminating evidence brought against him by the prosecution during the trial of the case and also pleaded his innocence and false implication in this case. It was also his plea that prosecutrix and her family members were having grudge against him, since he was mediator and one of the witnesses in the marriage of Neha Garg, younger sister of prosecutrix with Shiv Charan, a member of Scheduled Caste. The family members of the prosecutrix had also moved a complaint against him to this effect before the Commissioner of Police, Gurgaon, GAURAV SOROT 2015.01.07 10:27 I attest to the accuracy and authenticity of this document CRA-D- 1577 -DB-2014 (O&M) :4:
which was found false. He was pressurised by the family members of the prosecutrix for his marriage with the prosecutrix to which he refused and as a result thereof, the instant false case was got registered against him. In his defence evidence, he also examined two defence witnesses.
6. The learned trial Court after hearing the learned counsel for both the parties and analyzing the record as well, acquitted the accused of the charge under Sections 376(2)(n) and 506, IPC, by giving him benefit of doubt vide the impugned judgment.
7. The appellant being aggrieved from this judgment has come up in the instant appeal.
8. We have heard the learned counsel for the appellant and have also gone through the record as available on the file.
9. Learned counsel for the appellant has contended that the impugned judgment is illegal, void and arbitrary as well as unwarranted, the same being against the law on the point and facts on the file. The prosecution has fairly succeeded to prove its case beyond the shadow of doubt because all the eleven prosecution witnesses examined by it supported the version of prosecution. It is his further contention that respondent No.2/accused who is a distant relative of the prosecutrix took undue advantage of this fact and committed rape upon her under the false promise of marriage continuously for a sufficient period of time. It is also contended that the defence as taken by respondent No.2/accused was that he was witness to the marriage ceremony of younger sister of the prosecutrix with one Shiv Charan belonging to the Scheduled Caste category, whose marriage was not acceptable to the family of prosecutrix. For this reason, the family of prosecutrix was nursing a grudge against him and as such he GAURAV SOROT 2015.01.07 10:27 I attest to the accuracy and authenticity of this document CRA-D- 1577 -DB-2014 (O&M) :5:
has been involved in this case falsely. Herein it is also contended that there were other witnesses and persons present in the marriage ceremony of younger sister of the prosecutrix, but the family of prosecutrix did not initiate any action against any of them. Moreover now the younger sister of the prosecutrix is on visiting terms with the family members and her family has also accepted her marriage with out of caste person. So in these circumstances the defence version as pleaded by respondent No.2/accused stands falsified and as such, his plea of false implication in this case also does not subsist any more. Then a specific reference has been made to the statements of PW-7, the prosecutrix, PW-9 Smt. Aarti Garg, PW-10 Vidya Devi and PW-3 Dr. Jyoti Sabarwal, Medical Officer, Government Hospital, Gurgaon. Further the learned counsel for the appellant has also cited the case laws as laid down in State of U.P. versus Naushad-2014 (1) RCR Criminal 173 and Karthi @ Karthick versus State represented by Inspector of Police, Tamil Naidu, AIR 2013 Supreme Court 2645.
10. The prosecutrix as PW-7 stated that accused (now respondent No.2) used to visit her home frequently being her relative. He established physical relations with her several time against her wishes during the period commencing from the year 2010 to 2013 under the pretext that he would marry her. He also used to take her to park and commit rape on her in the car. On 4th August, 2013 accused came to their house at about 8:00 PM when she and her sister-in-law were alone in the house. At that time her sister-in-law was busy in kitchen work and she went to the first floor of the house on the asking of the accused to show her room. He bolted the door from inside and started kissing her, he also put his hand in her shirt which was resisted by her. Thereafter he committed rape on her forcibly on the GAURAV SOROT 2015.01.07 10:27 I attest to the accuracy and authenticity of this document CRA-D- 1577 -DB-2014 (O&M) :6:
plea that they are going to marry very soon. Then it is also in her statement that accused demanded a sum of `25,00,000/- in the dowry for his marriage with her. Ultimately he refused to marry her and also threatened her to kill her and his parents as well, if she dared to initiate any action against him. Then she also stated about the other facts as mentioned in her application Ex.PG moved by her before the Police.
11. PW-9 Smt.Aarti Garg, is the sister-in-law of prosecutrix. She had also corroborated the prosecution version as stated by PW-7, the prosecutrix. Then it is also in her statement that prosecutrix disclosed her on 26.11.2013 that accused had refused to marry her and that he had also raped her several times.
12. PW-10, Smt. Vidya who is mother of prosecutrix had also stated that accused being their relatives used to visit their house and had developed friendly relations with her daughter with the promise to marry her. When the entire facts with the regard to the present case were disclosed to her by her daughter (prosecutrix) then she talked with the father of accused on mobile phone, who refused for the marriage of his son with her daughter.
13. Now let us see the cross-examination of abovesaid three PWs in brief in order to find out the truth.
14. Prosecutrix as PW-7 stated that she is Master of Arts in Political Science. Her younger sister Neha got married with one Shiv Charan of Scheduled Caste community on 28.09.2013, which was a love marriage. Her sister Neha had left the house and got married with said Shiv Charan in Arya Samaj Temple at Delhi. Her said sister sent papers regarding her marriage to them on 9th October, 2013 by post and then they GAURAV SOROT 2015.01.07 10:27 I attest to the accuracy and authenticity of this document CRA-D- 1577 -DB-2014 (O&M) :7:
came to know that accused was instrumental in her marriage. Upon this, they got annoyed with him and their relations were also got strained. The accused used to visit her house in the presence of her family members. Even he also visited her house during the period from August 2013 to 27 th November, 2013. They also got exchanged their mobile numbers and used to talk with each other. On 4th August, 2013, when the accused committed rape upon her she neither resisted the accused nor had caused any injuries to him. The uncle of the accused apprised them that accused is going to marry on 10th December, 2013.
15. PW-9 Aarti Garg, sister-in-law of the prosecutrix in her cross- examination deposed that accused being her relative used to visit their house frequently even without any work. He also used to meet the prosecutrix alone at house in the presence of family members and they had never raised any objection in this connection. Even he and the prosecutrix used to go out for roaming and their family members never raised any objection in this regard also. Then she also admits that younger sister of the prosecutrix had married to a Scheduled Caste boy by way of love affair.
16. PW-10 Vidya Devi, mother of the prosecutrix, in her cross- examination stated that she came to know about the physical relations between accused and her daughter 5/6 months prior to November, 2013. Even thereafter, the accused continued to visit their house and that no objection was raised by them regarding his visit to their house. Her daughter also did not make any complaint against him during this period of six months. Then it is also in her cross-examination that accused also used to take her daughter outside the house and regarding this also, she did not raise any objection.
GAURAV SOROT 2015.01.07 10:27 I attest to the accuracy and authenticity of this document
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17. From the above discussed statements of abovesaid three star witnesses of the prosecution, it is concluded that family members of the prosecutrix were well knowing about the relationship of prosecutrix with the accused. The accused had been visiting to their house frequently and even without any specific work. He even used to take the prosecutrix outside the house with the consent or permission of her family members which may be either express or implied. They never raised any objection qua the visit of accused to their house and taking of prosecutrix outside the house along with him for roaming. As above discussed, the prosecutrix PW-7 in her statement admits that accused maintained physical relations with her several times during the period commencing from 2010 to 2013, though against her wishes. No person can maintain physical relations with any women for such a long period of 3 years against her consent. In the case in hand, prosecutrix is well educated being Master of Arts in Political Science. Then PW-10 Vidya Devi, mother of prosecutrix as abovesaid in her cross-examination admits that she had come to know about the physical relations between her daughter and the accused 5/6 months prior to November 2013. It also goes to show that prosecutrix as well as her family members were consenting party to the alleged physical relations between the accused and the prosecutrix. So for this reason, the statement of PW-3 Dr.Jyoti Sabarwal is not of any much significance.
18. Now let us see the facts in brief of two case laws cited supra by the learned counsel for the appellant, which are as follows:-
i. State of U.P. vs. Naushad, 2014(1) RCR (Criminal) 173.
In this case accused used to visit the house of the complainant oftenly and enticed his daughter-Shabana. He cheated her by promising to GAURAV SOROT 2015.01.07 10:27 I attest to the accuracy and authenticity of this document CRA-D- 1577 -DB-2014 (O&M) :9:
marry her and had regular sexual intercourse with her. In this pretext, the complainant came to know when his daughter narrated the story to her mother how she was ravished and became pregnant. Efforts were made to sort out the solution by way of settlement by convening a Panchayat, but all in vain, which resulted into registration of case.
ii. Karthi @ Karthick vs. State represented by Inspector of Police, Tamil Nadu, AIR 2013 (SC) 2645.
In this case, as per the prosecutrix the accused used to tease her oftenly, he also used to tell her to marry him. On one occasion, the prosecutrix was alone in the house since the other family members had gone to a temple. Finding her alone in the house, the accused entered into her house, and committed rape upon her forcibly despite her resistance. He told her not to reveal the incident to any one on the promise to marry her. Thereafter the accused committed rape upon her at different places with the same promise to marry her.
19. The facts of the abovesaid both the case laws are somewhat different from the facts of the present case for the reason that in the present case prosecutrix as well as her family members were consenting party to the alleged physical relations of prosecutrix and of accused, whereas it is not so in the above cited both the case laws. In the case in hand prosecutrix is Master of Arts in Political Science and as per her statement accused established physical relations with her from the year 2010 to 2013. So it is a clear case of consensual sex and as such, accused cannot be held liable for the offence under Sections 376(2)(n) and 506, IPC. On this point, there is an authority of our own High Court as laid down in Bikramjit Singh and another vs. State of Punjab, 2010(4) RCR (Criminal) 107. GAURAV SOROT 2015.01.07 10:27 I attest to the accuracy and authenticity of this document
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In the light of above discussion, no ground to make any interference in the impugned judgment is made out. This appeal being meritless stands dismissed and disposed of accordingly.
( T.P.S.MANN ) ( GURMIT RAM)
November 14, 2014 JUDGE JUDGE
Gaurav Sorot
GAURAV SOROT
2015.01.07 10:27
I attest to the accuracy and
authenticity of this document