Punjab-Haryana High Court
Harsh Suri @ Loveli vs State Of Haryana on 28 November, 2013
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No. S-1134 SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.S-1134 SB of 2003
Date of decision 28 .11.2013.
Harsh Suri @ Loveli
...... Appellant.
versus
State of Haryana
..... Respondent.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment? yes
2. To be referred to the Reporters or not? yes
3. Whether the judgment should be reported in the Digest? yes
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present : Mr. Baldev Singh, Senior Advocate with
Mr. Sudhir Sharma, Advocate for appellants.
Mr. Amit Kaushik, Senior DAG Haryana.
K.C.PURI, J.
Appellant Harsh Suri @ Loveli has directed the present appeal against the judgment and order dated 30.4.2003 passed by Dr. Neelima Shangla, learned Additional Sessions Judge, Panipat vide which accused- appellant stood convicted under Sections 376 and 420 of the IPC and sentenced to undergo undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.50,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year under Section 376 of the IPC and to undergo rigorous imprisonment for a period of two years Criminal Appeal No. S-1134 SB of 2003 2 under Section 420 of the IPC. However, both the sentences were ordered to run concurrently.
2. The case of the prosecution in brief is that in the month of July 1998 prosecutrix joined a course of Front Office Management Course from Y.M.C.A. Cannaught Place, New Delhi. She remained daily passenger from Delhi to Panipat. Accused Harsh Suri was having hosiery business at Panipat. He was also daily passenger from Delhi to Panipat and being daily passenger in same time and same train Harsh Suri and the prosecutrix started talking with each other. Due to his hosiery business, accused Harsh Suri used to come to Panipat almost daily. He started visiting house of prosecutrix on several occasions and meet her parents also. Harsh Suri introduced himself as unmarried person and after December 1998, Harsh Suri promised prosecutrix to marry with her and kept on meeting frequently but he never gave his address and background. Accused Harsh Suri, who is business man telephonically remained in contact with Meenu through mobile phone. Parents of the prosecutrix were not happy with the relation in between prosecutrix and Harsh Suri and several times they rebuked Harsh Suri not to come to their residence. Father of the prosecutrix was having some independent business at Delhi and used to stay at Delhi and he used to visit Panipat during week end time. It is further case of the prosecutrix that accused assured the prosecutrix that he was unmarried in his every meeting and promised to marry with prosecutrix. On 25.6.1999 accused committed sexual intercourse with prosecutrix in House No.227 Weavers Colony, Panipat by promising her to marry with her. Prosecutrix Criminal Appeal No. S-1134 SB of 2003 3 also surrendered before the accused seeing that one day she would be wife of accused and thereafter accused exploited prosecutrix sexually more frequently.
3. It has been further case of the prosecution that on 1.12.1999 mother of prosecutrix came in the house all of sudden during day time and she found accused and the prosecutrix in compromising position. She strongly told them not to meet each other before marriage. Every time accused promised to marry the prosecutrix but several restrictions were put by parents of prosecutrix that she should not meet accused. Accused hired accommodation for prosecutrix in Delhi in House No.WZ-140 Shadipur Village, Delhi and Meenu shifted to Delhi on 26.12.1999. On 28.12.1999 Sangeeta Keswani, a friend of prosecutrix and resident of F-25, Flat No.110 Sector 7 Rohini, Delhi by chance went to meet her in the hired house and found her sitting with accused Harsh Suri. Prosecutrix told Sangeeta Keswani that she is going to marry with Harsh Suri against the will of her parents. At that time accused Harsh Suri slipped away from the house immediately and Sangeeta Keshwani told prosecutrix that Harsh Suri was known to her since childhood and he was already married with Vinika for the last six years and from her he was having a male child aged five years. On this prosecutrix stunned to listen the fact of marriage of the accused but it was unbelievable for her. Accused came to prosecutrix in the evening on 29.12.1999 and tried to pacify her by saying that Sangeeta Keshwani was inimical with his family, therefore, she misguided prosecutrix but prosecutrix became doubtful and started inquiring about Criminal Appeal No. S-1134 SB of 2003 4 antecedents of Harsh Suri but she could not find any clue upto 8.2.2000. Accused obtained some nude photographs of the prosecutrix in compromising position by automatic camera and he was in possession of some emotional love letters of the prosecutrix. On the basis thereof formal FIR was recorded. On completion of investigation, challan against the accused was presented in the court of Illaqa Magistrate, who committed the case to the Court of Session.
4. The trial Court framed charges under Sections under Sections 376 and 420 of the IPC against the accused. The accused pleaded not guilty to the charge and claimed trial.
5. In support of its case, the prosecution examined Bhuvnesh as PW-1, J.B.Goel as PW-2, Smt. Bimla Devi as PW-3, Nitin Azad as PW-4, ASI Nahar Singh as PW-5, Constable Rajesh Kumar as PW-6, Constable Surinder Singh as PW-7, Constable Satyawan as PW-8, SI Suresh Kumar as PW-9, Dr. Pankaj Aggarwal as PW-10, Sangeeta Kewshwani as PW-11, Hardeep Kaur as PW-12, Sudesh Kumari as PW-13, Dr. Abha Jain as PW- 14, HC Ram Kumar as PW-15, ASI Rajinder Singh as PW-16 and closed the evidence.
6. After the closure of prosecution evidence, statement of the accused under Section 313 Cr.P.C was recorded. He denied all the allegations of the prosecution and pleaded his innocence.
7. In his defence evidence, the accused examined as many as ten witness and his evidence was ultimately closed by order of the court vide order dated 15.2.2003.
Criminal Appeal No. S-1134 SB of 2003 5
8. The trial Court after hearing the learned counsel for the parties convicted and sentenced the accused-appellants vide judgment and order dated 30.4.2003
9. Feeling dissatisfied with the aforesaid judgment and order dated 30.4.2003, the accused/appellant has preferred the present appeal.
10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
11. The learned trial Court, after appraisal of the evidence reached to the conclusion that accused and prosecutrix had been indulging in sexual intercourse with consent but has given a finding that consent of the prosecutrix was obtained by making false promise of marriage. The case of the prosecution is that the prosecutrix was not in the knowledge of the fact that accused was already married and have a child.
12. The prosecutrix is a graduate and she has given her age as 24 years while appearing in the witness box on 14.12.2000. Prosecutrix has stated that she has joined the Office Management Course in YMCA Cannaught Place New Delhi in the month of July 1998 and during her journey to Delhi, she came in contact with accused. She has further stated that accused used to visit Panipat in connection with Hosiery business. Prosecutrix has stated that she had fallen in love with him and accused proposed for marry after 2-3 meetings. Accused also met her parents. He has further stated that she used to meet accused in Talkotra Garden and Banta Garden and in hotel rooms including hotel Regency and Mid-town. She has further stated that accused also used to visit her house and Criminal Appeal No. S-1134 SB of 2003 6 committed sexual intercourse with her on 25.6.1999. She has further stated that she gave her consent for sexual intercourse on the assurance that accused will marry her one day. Thereafter also accused committed sexual intercourse with her in hotel Midterm several times. She has further stated that on 31.12.1999 accused committed sexual intercourse with her in the room in Hotel Jyoti Place in Kailash Bagh Delhi. Prosecutrix has further stated that on 26.12.1999 the accused has committed sexual intercourse with her in her house and her mother found them in indulging that activity. Her parents rebuked the accused. She has further stated that she started residing at Delhi and thereafter also accused used to sexual intercourse with her. Prosecutrix has further stated that accused has obtained some photographs by automatic camera regarding her nude scenes in compromising position and had taken signatures on the blank papers for preparing marriage papers in a lawyer office. She has further stated that accused is in possession of her love letters and accused used to blackmail her by showing the photographs and love letters. `
13. The main controversy in the present case is whether the prosecutrix was not in the knowledge of the marriage of accused and that accused has sexual intercourse with her on the false promise of marriage.
14. According to the prosecutrix, she came to know about the factum of marriage from Sangeeta Keswani in the month of December 1999 and on 28.12.1999 PW-11 Sangeeta Keswani told the prosecutrix that he is already married. However, from the statement of prosecutrix it is revealed that even after 28.12.1999 she had been living with accused in a Criminal Appeal No. S-1134 SB of 2003 7 rented accommodation at Delhi. Truthfulness of Sangeeta Keswani shaken away in the cross-examination when she has admitted the fact that she is an accused in a case in respect of betrothal ceremony of her brother Pawan with the sister of accused. The said case was registered prior to the registration of the present case. So, the prosecutrix has chosen a person who is inimical towards the accused. No explanation has been given under what circumstances the prosecutrix has been indulging in sexual intercourse with accused even after 28.12.1999.
15. The conduct of the prosecutrix is relevant. She has stated that after the incident of her mother found accused having sex with prosecutrix she was rebuked by her parents and she left the house and started living at Delhi in a rented accommodation. That occurrence was also of December 1999.
16. Another material, which has been ignored by the trial Court is a document Ex.D-3 which is written by the prosecutrix herself. Prosecutrix has admitted the factum of writing the said document. The said document is an application dated 20.5.2000 addressed to Station House Officer, Patel Nagar, New Delhi. In this document it is mentioned that about one and half years ago she came to know that accused is married. So, if this document is taken as it is in that case, it can be safely inferred that in the month of July 1998, the prosecutrix was in the knowledge of the fact that accused is a married person. According to the statement of the prosecution in spite of having knowledge of the fact that accused is already married, prosecutrix has indulged in sexual intercourse with accused at different places including Criminal Appeal No. S-1134 SB of 2003 8 at her house in the absence of her parents. She has been indulging in sex with accused at different hotels and had even left the house of her parents and started living at Delhi.
17. The factum of blackmailing the prosecutrix is not borne out from the record as no nude photograph or other document has been recovered from the accused.
18. Prosecutrix was a matured girl and knew the consequences of sexual intercourse with a married man. She has herself stated that she had fallen in love with accused.
19. A Division Bench of Kolkata High Court in authority Jayanti Rani Panda vs. State of W.B. And another 1984 Criminal Law Journal page 1535 (1) observed as under :-
"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. S.90, IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never Criminal Appeal No. S-1134 SB of 2003 9 really intended to marry her."
20. The Hon'ble Apex Court in authority Uday vs. State of Karnataka reported in 2003 (2) R.C.R. (Criminal) page 99 while dealing with Section 90 of the IPC held that where the prosecutrix and accused are deeply in love, consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. However, whether consent was voluntary or given under misconception of fact would depend on facts of each case.
21. Again Hon'ble Apex court in authority Deepak Gulati vs. State of Haryana reported in 2013 (3) R.C.R. (Criminal ) page 96 has held that where the prosecutrix aged 19 years eloped with the accused and father of prosecutrix made complaint, in that case accused is not guilty of offence of rape. Conviction was set aside. It was held that it cannot be a case of false promise of marriage.
22. The prosecutrix in this case was 22 years of age and was intelligent and matured to understand the significance and moral quality of the act she was consenting to. She was conscious of the fact that her marriage may not take place on various considerations. According to the document Ex. D-3 prosecutrix was in the knowledge of fact that accused was already married. So, under these circumstances it is difficult to impute to the accused the knowledge that prosecutrix had consented in consequence of a misconception of fact arising from his promise to marry. Otherwise the evidence is missing that appellant had ever intended to marry the Criminal Appeal No. S-1134 SB of 2003 10 prosecutrix. According to the evidence on the file these act of sexual intercourse started after July 1998 i.e. after the knowledge of fact that accused is already married as stated in document Ex.D3.
23. So, all the aforesaid facts and circumstances lead to the conclusion that the trial Court had committed grave error in convicting the accused in respect of offence under Sections 376 and 420 of the IPC.
24. Consequently, the appeal stands accepted. The accused strands acquitted from the charges levelled against him by giving him benefit of doubt.
25. A copy of this judgment be sent to the trial Court for strict compliance.
November 28 , 2013 ( K. C. PURI ) sv JUDGE