Punjab-Haryana High Court
Satish vs State Of Haryana & Another on 4 October, 2013
Crl.A. No1065-SB of 2009 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.A. No1065-SB of 2009 (O&M)
DATE OF DECISION: OCTOBER 4, 2013
SATISH ...APPELLANT
VERSUS
STATE OF HARYANA & ANOTHER ...RESPONDENTS
CORAM: HON'BLE MR.JUSTICE M.JEYAPAUL.
1. Whether the judgement should be reported in the digest? Yes
PRESENT: MR.SANJAY VASHISTH, ADVOCATE
FOR THE APPELLANT.
MS.TRISHANJALI SHARMA, AAG, HARYANA.
MR.RAMENDER CHAUHAN, ADVOCATE
FOR RESPONDENT NO.2.
M.JEYAPAUL, J.
1. Accused Satish was convicted under Section 376 and 506 IPC and was sentenced to undergo R.I. for 10 years and to pay a fine of `30,000/- and in default of payment of fine, to undergo further period of R.I. for 2 years under Section 376 IPC and to undergo R.I. for 1 year and to pay a fine of `2000/- and in default of payment of fine, to undergo further period of R.I. for 3 months under Section 506 IPC. He has challenged the conviction and sentence passed by the trial Court.
2. PW8 Jagdish submitted an application Ex.P2 with the signature of the prosecutrix as well to the Superintendent of Police, Bhiwani. He has alleged in the said application as follows:
The prosecutrix was his daughter who was studying in 8th Gulati Sumit 2013.10.11 13:45 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No1065-SB of 2009 (O&M) -2- standard in the year 2005. She suffered from fever and refused to go to school. His wife proceeded to a medical shop run by accused Satish. Accused Satish promised that he would come to her house and give the treatment to the prosecutrix. The prosecutrix was all alone in the house after her mother had left for collecting fodder for animals. The accused came to her house and administered an injection which made her unconscious. Accused Satish raped her. She gained consciousness after about one hour and found that there was no cloth on her body. The accused again came over there. The prosecutrix threatened that she would disclose the occurrence to her parents. Co-accused Sheela came to her house and threatened that if the prosecutrix disclosed the occurrence to her parents, her parents would be done to death. Even thereafter accused Satish used to rape her and threatened her with dire consequences. Accused Sheela helped accused Satish. Sheela asked the prosecutrix to run away with accused Satish. Two or three love letters also were got written from the prosecutrix by force. Frightened that the prosecutrix would disclose the occurrence to her parents, they forcibly administered poisonous tablets to the prosecutrix on 15.5.2007. Thereafter, she was admitted to Civil Hospital, Dadri. She narrated the entire incident to the police, but no action was taken. PW8 met the Station House Officer for registration of a case. He also threatened PW8 with dire consequences.
3. Based on the above application, first information report was registered by ASI Dharam Chand.
4. PW10 Dr.Anita Gulia, medico-legally examined the prosecutrix Gulati Sumit 2013.10.11 13:45 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No1065-SB of 2009 (O&M) -3- on 2.6.2007 and issued medico-legal report Ex.P11. The vaginal swab collected during the course of examination was sent for chemical examination. The prosecutrix was also subjected to radiological examination to determine her age. After ossification test PW9 gave an opinion in his report Ex.P9 that age of the prosecutrix was between 18-19 years. Based on the FSL report, PW10 gave an opinion that the prosecutrix had recent sexual intercourse.
5. On the side of the prosecution as many as 15 witnesses were examined.
6. The accused contended in his statement under Section 313 Cr.P.C. that the prosecution has come out with a false implication. On the side of the defence, ex-Sarpanch of village Sahuwas was examined as DW1, Sarpanch of village Paintawas was examined as DW2 and one Chhotu Ram was examined as DW3.
7. The trial Court having relied upon the evidence of the prosecution and the medical evidence on record returned a finding that she was not only raped, but was also criminally intimidated by the accused.
8. Learned counsel appearing for the appellant would vehemently submit that the prosecution has come out with a totally unbelievable story that accused Satish committed rape upon the prosecutrix about 2 years prior to the registration of the first information report. It is his submission that the evidence of the prosecutrix does not inspire confidence.
9. Learned counsel appearing for the prosecutrix as well as learned AAG, Haryana would submit that the trial Court had wrongly Gulati Sumit 2013.10.11 13:45 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No1065-SB of 2009 (O&M) -4- determined the age of the prosecutrix at the time when rape was committed first in point of time in the year 2005. Under promise to marry her, the prosecutrix had been hoodwinked. At any rate, it is their submission that the evidence of the prosecutrix would go to establish that she was raped in 2005 under intoxication administered by accused Suresh. The evidence on record also would go to show that a threat wielded by the accused in 2005 persisted till her father lodged a complaint.
10. The Court will have to find what was the actual age of the prosecutrix at the time when the alleged rape was committed in the year 2005. The Court will also have to determine whether there was any rape committed by the accused under threat to the life of the prosecutrix and her parents, till the complaint was lodged by PW8, father of the prosecutrix.
11. No birth certificate or the school leaving certificate was produced by the prosecution to determine exactly the age of the prosecutrix at the time when the alleged rape was committed in the year 2005. The trial Court was left with no other option except relying upon the radiological report Ex.P9 issued by PW9. As on 5.6.2007, when the prosecutrix was subjected to radiological examination, she was 18-19 years old as per the evidence of PW9. The variation of 2 years on either side is medically permissible as per the evidence of PW9. Therefore, the age of the prosecutrix could be 16-18 years or 19-21 years. It is a well settled proposition of law that benefit which flows from such a variation in the age of the prosecutrix will have to be given to the accused. Therefore, in my considered view, the trial Court has rightly concluded that the prosecutrix Gulati Sumit 2013.10.11 13:45 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No1065-SB of 2009 (O&M) -5- was more than 16 years old at the time when the first occurrence allegedly took place way-back in the year 2005.
12. As regards the alleged rape committed by accused Satish under the threat wielded by him, it would be beneficial to refer straight-away to the evidence of the prosecutrix. The prosecutrix who was examined as PW1 has deposed that the accused who came to her house to give treatment to her in the year 2005 made her unconscious by administering some injection and thereafter he committed rape upon her. When she regained consciousness, she found that her clothes were not on her body. Accused threatened her with dire consequences.
13. It is found that the exact date and month of the year 2005 when the alleged rape was committed were not disclosed by the prosecutrix. If at all the prosecutrix who had just completed 16 years was put to threat by a person who outraged her modesty, she would not have waited for 2 long years to disclose the incident of rape to her parents. It is not as if she was confined for quite a long time prohibiting her from associating with the public. She was all along residing with her parents. She had been attending the school on a regular basis. She had an occasion to interact with her peer group. She had an opportunity to interact with her teachers as well. There was no prohibition for her to mingle intimately with the villagers. Under such circumstances, the story reeled out by the prosecutrix and her father that she kept the obnoxious incident close to her heart for about 2 long years does not stand the test of common sense.
14. It is the further version of the prosecutrix that accused Satish Gulati Sumit 2013.10.11 13:45 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No1065-SB of 2009 (O&M) -6- used to rape her under threat all through the period of 2 long years till her father complained of such a rape committed by him. It is her version that the accused used to call her at different places. She had been raped not only at her house, but also in the house of the accused. To top it all, she had come out with a damaging version which lethally shakes the very foundation laid by her that she had written four love letters to the accused. But very conveniently, she would state that those love letters were got written by the accused under threat. A girl of 16 years would not have kept such an affair as a secret even under the face of threat for such a long time. Under threat one letter might have been written by her, but it is quite unbelievable that four love letters had been written by her to the accused under the alleged threat emanated from him. The very fact that four love letters had emanated from the prosecutrix completely demolishes the case of the prosecution that the prosecutrix was not at all a consenting party, but the consent was given by her only under threat emanated from accused Satish. In my considered view, the admission of the fact that she had written four love letters to the accused would unambiguously establish that she continued to have consensual sex with accused Satish, as otherwise she would not have gone at the calling of the accused to various places to have sex with him. She would not have preferred to go to the house of the accused to have sex with him.
15. The prosecutrix would further depose that whenever the accused came to her house, she used to be all alone. Whenever the accused asked her not to go to school, she remained at the house itself for having sex Gulati Sumit 2013.10.11 13:45 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No1065-SB of 2009 (O&M) -7- with the accused. Such a conduct of the prosecutrix would go to show that she was really a consenting party to the sex the accused had with her.
16. It was argued by learned counsel appearing for the complainant as well as the learned AAG, Haryana that she might have had sexual intercourse subsequently with the accused with her consent, but the first incident the prosecutrix described would go to show that she was not a consenting party, as the accused had intercourse with her by making her unconscious by administering some injection.
17. The above submission does not appeal to me at all. The admission of the prosecutrix would disclose that within about 15-20 days of the first encounter in the year 2005, she wrote the first love letter to the accused. Three more love letters had been despatched thereafter by the prosecutrix to the accused. After the alleged rape at the first instance in the year 2005, the accused had not left the house of the prosecution forthwith. He remained in the house for some time as per the version of the prosecutrix. No one who outraged the modesty of a woman against her will would have chosen to remain present after such an outrageous occurrence. No victim of such a rape would have chosen to shoot-off any love letter within a span of about 15-20 days to the assailant. The subsequent conduct of the prosecutrix would go to demonstrate that the case of the prosecution that the prosecutrix was made unconscious by administering some injection and thereafter she was raped by accused is totally false.
18. The evidence of Dr.Anita Gulia in the background of FSL report Ex.P12 would go to show that the prosecutrix had intercourse very Gulati Sumit 2013.10.11 13:45 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl.A. No1065-SB of 2009 (O&M) -8- recently. Human semen was detected in the vaginal swab collected and sent for examination on 2.6.2007. The above medical evidence also creates a doubt in the story of the prosecution.
19. In view of the above, I find that the prosecution has miserably failed to establish beyond reasonable doubt that the accused not only committed rape upon the prosecutrix, but also criminally intimidated her with dire consequences. The accused is found not guilty and, therefore, he is acquitted of the charges framed as against him. He be set at liberty forthwith, if his custody is not required in connection with any other case. Consequently, the judgement conviction and sentence recorded by the trial Court as against the accused-appellant stands reversed and the appeal is allowed.
CRM-37881-2013
20. The main appeal stood disposed of today. Therefore, the application for suspension of sentence and grant of bail filed by the applicant-appellant stands dismissed as infructuous.
October 4, 2013 (M.JEYAPAUL)
Gulati JUDGE
Gulati Sumit
2013.10.11 13:45
I attest to the accuracy and
integrity of this document
High Court, Chandigarh