Punjab-Haryana High Court
Jaituni vs State Of Haryana And Ors on 28 October, 2014
CRA-D-1377-DB of 2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-D-1377-DB of 2013 (O&M)
DATE OF DECISION: OCTOBER 28, 2014
JAITUNI ...APPELLANT
VERSUS
STATE OF HARYANA & ORS. ...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL.
HON'BLE MRS. JUSTICE SNEH PRASHAR.
1. Whether the judgement should be reported in the digest? Yes/No
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PRESENT: MR. SANJEEV K.PANWAR, ADVOCATE
FOR THE APPELLANT.
MR.DHRUV DAYAL, DAG, HARYANA.
MR. DILPREET SINGH, ADVOCATE
FOR RESPONDENTS NO.2 & 3.
M. JEYAPAUL, J.
CRM-46858-2013
1. The application is filed under Section 5 of the Limitation Act praying for condonation of delay of 53 days in filing the criminal appeal.
2. Heard the submissions made on either side.
3. It is effectively contended that the applicant who is the prosecutrix came to know of the acquittal recorded by the trial Court only recently. Thereafter, she applied for certified copy of the judgement of acquittal with the assistance of her counsel and filed the appeal.
4. For the aforesaid reasons, the delay is condoned and the application is allowed.
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CRA-D-1377-DB-2013
5. The prosecutrix has preferred the present appeal challenging the acquittal recorded by the trial Court against accused Wakil and Abbas on the charge of gangrape.
6. PW2 Isha is the father of the prosecutrix. The prosecutrix was examined as PW1. PW2 lodged a complaint on 19.6.2011 alleging that on 17.6.2011, his daughter aged 16 years proceeded to the field to bring fodder. But she was kidnapped and taken away in a vehicle by accused Wakil, Sakir and Saikul and Munfed. All the accused committed rape upon the prosecutrix. The prosecutrix was searched in the houses of the relations of the accused. But the accused came back to their village on 18.6.2011 alongwith the prosecutrix. The prosecutrix narrated the entire incident to PW2.
7. The investigating officer took up the case for investigation, recovered the salwar of the prosecutrix which contained semen as per the FSL report and laid final report as against accused-respondents No.2 & 3.
8. On the side of the prosecution as many as 13 witnesses were examined. The accused set up a plea that they were innocent. They denied all the incriminating circumstances projected by the witnesses examined on the side of the prosecution. DW1 Ved Pal, Headmaster, Government Middle School, Mathepur and DW2 Sakoor were examined by the accused in their defence.
9. The trial Court having thoroughly adverted to the evidence on record came to a conclusion that the prosecutrix has come out with an SUMIT GULATI 2014.11.11 11:57 I attest to the accuracy and authenticity of this document CRA-D-1377-DB of 2013 (O&M) -3- inconsistent and unbelievable version. Ultimately, the trial Court recorded acquittal of the charge of gangrape.
10. The prosecution has come out with a case a gangrape. PW2 Isha having allegedly collected information from the prosecutrix laid the complaint and set the law in motion. In his complaint there is a specific reference to the role of accused Wakil, Sakir, Saikul and Munfed. They have allegedly committed rape upon the prosecutrix. The prosecutrix also in her statement under Section 161 Cr.P.C. came out with a version that only those accused committed gangrape upon her. There was no reference to the role of accused Abbas who figures as respondent No.3 herein.
11. Only in the statement under Section 164 Cr.P.C. recorded by the Judicial Magistrate, she came out with a version that accused Abbas also committed rape upon her. If the 3rd respondent who was not a stranger either to the prosecutrix or to her father had infact joined the other accused and committed gangrape, there was no reason for PW1 and PW2 to omit the role of 3rd respondent Abbas. Introduction of accused Abbas later in point of time, cast a shadow in the case of the prosecution.
12. Learned counsel appearing for the appellant would submit that the evidence of the prosecutrix was not properly evaluated by the trial Court. On a thorough perusal of the evidence of the prosecutrix, we find that there are material contradictions. Further, her evidence appears to be totally unnatural and the medical evidence also fails to support her theory.
13. It is the story of the prosecutrix that totally 5 persons repeatedly committed gangrape upon her. Further, it is the case of the prosecution that SUMIT GULATI 2014.11.11 11:57 I attest to the accuracy and authenticity of this document CRA-D-1377-DB of 2013 (O&M) -4- the prosecutrix was dragged by the accused to the van. There was no whisper from the prosecutrix that beforever the alleged gangrape was committed, there was any threat emanated from the accused. Accused Abbas had allegedly wielded threat only after the gangrape was committed.
14. PW13 Dr.Kalpna Kumari had deposed that she did not find any external mark of injury over any part of the body. In other words, no external mark of injury was noticed by her when she examined the prosecutrix on 19.6.2011 itself. There was no bleeding or discharge from the vagina as per the medical evidence.
15. When there was no threat prior to the gangrape, the prosecutrix would have definitely resisted the sexual assault. But unfortunately, there was no symptom of resistance put up by the prosecutrix. There was no external mark of injury to support the case of the prosecution that the prosecutrix was dragged to the van. When there was no threat prior to the gangrape committed repeatedly by 5 accused, there would have been definitely some mark of injury or at least some redness or swelling over the private parts of the prosecutrix. In our considered view, the trial Court has rightly doubted the version of the prosecution as the prosecutrix has come out with a totally unbelievable version.
16. PW2 would depose that her daughter was missing on 17.6.2011 when she had been to collect fodder. There was no reason for him to wait till 19.6.2011 to lodge a complaint as regards the missing of his daughter. In our view, the delay would have been used by the prosecutrix and her father to come out with an embellished story.
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17. The evidence of DW1 Ved Pal, Headmaster of the school where the prosecutrix studied establishes that the prosecutrix was 19 years at the time when the occurrence took place.
18. Of course, semen was found in the salwar recovered by the investigating agency. The FSL report supports the case of the prosecution that semen was detected in the salwar sent for examination. Mere detection of semen in the salwar of the prosecutrix would not give rise to the presumption that the accused perpetrated the crime of rape upon the prosecutrix. The prosecution should go a step further and connect the semen with the accused by subjecting the semen for DNA test. Unfortunately, the investigating agency had not gone for DNA test.
19. For all these reasons, we find that the trial Court has rightly disbelieved the evidence adduced on the side of the prosecution to record acquittal. We do not find any merit in the appeal. Therefore, the appeal stands dismissed.
(M. JEYAPAUL)
JUDGE
October 28, 2014 (SNEH PRASHAR)
Gulati JUDGE
SUMIT GULATI
2014.11.11 11:57
I attest to the accuracy and
authenticity of this document