Punjab-Haryana High Court
Manisha vs State Of Haryana And Anr on 19 September, 2014
Author: Harinder Singh Sidhu
Bench: Rajive Bhalla, Harinder Singh Sidhu
CRA-D-1327-DB of 2013
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.D-1327-DB of 2013(O&M)
Date of Decision : 19.09.2014
Manisha ... Appellant
Versus
State of Haryana and anr. .... Respondents
CORAM: HON'BLE MR.JUSTICE RAJIVE BHALLA
HON'BLE MR.JUSTICE HARINDER SINGH SIDHU
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the
Digest?
Present: Mr. Ram Darshan Yadav, Adv. for the appellant.
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HARINDER SINGH SIDHU, J.
The instant appeal has been filed by the victim against the judgment of acquittal dated 07.10.2013 passed by learned Sessions Judge, Rewari, (for short "trial court") vide which Sanjay, respondent No.2 (accused) has been acquitted of the charges levelled against him.
The case was initiated on the basis of the written complaint dated 01.05.2013 moved by Chet Ram son of Sohan Lal, father of the victim, resident of village Jhabua, (the complainant) stating therein that on 24.04.2013 the victim (his daughter) and Sushma wife of Sunil (his DINESH KUMAR 2014.11.18 16:57 I attest to the accuracy and integrity of this document Chandigarh CRA-D-1327-DB of 2013
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daughter-in-law) had gone in car of Jeet Ram son of Parkash (his daughter- in-law's brother) to Bawal at about 12.00 O'clock for making some purchases. When they had reached Bawal, Sanjay, accused, aged 40 years resident of village Husssaipur, Tehsil Tizara who is married in Village Jhabua and has been residing there for the last two years came near the car on a motorcycle. He took away the victim, who is aged 19 years and is unmarried alongwith him on the pretext of helping her make purchases. When Sanjay did not get her back for a very long time, his daughter-in- law and her brother, returned to village Jhabua and narrated the whole story to him. Panchayat was convened at the village but the whereabouts of his daughter and Sanjay could not be known. Mukesh son of Shrichand, (who is brother-in-law of Sanjay) was called by the people of the village but he stated that he did not know his whereabouts. Thereafter, Panchayat had decided that a report be lodged against Sanjay in the police station. So he moved the application for tracing out his daughter and taking legal action against Sanjay.
On the basis of the complaint DDR No.16 dated 1.5.2013 was recorded by Anil Kumar, ASI, Police Station Bawal. On 3.5.2013 he went to village Jhabua for verification of the complaint and thereafter FIR No.84 dated 03.05.2013 was got registered at Police Station Rewari. ASI Anil Kumar then went to the place of occurrence and prepared rough site plan Ex.P20 with correct marginal notes and recorded the statement of the victim and also visited that place where she was raped. Thereafter, he alongwith his staff members, victim, her parents and brother reached General Hospital, DINESH KUMAR 2014.11.18 16:57 I attest to the accuracy and integrity of this document Chandigarh CRA-D-1327-DB of 2013
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Rewari where the statement of victim Ex.P6 was recorded. The medical examination of the victim was conducted. After medical examination of the victim, Maya Rani, EASI produced before the Investigating Officer a sealed parcel containing swab, clothes of the victim and sample seal, which were taken into possession. On receipt of medical report as well as statement of the victim, Section 376 IPC was added. The victim was handed over to her father and brother. The age proof of the victim was taken into possession. He thereafter, recorded the statements of the witnesses under section 161 Cr.P.C.
Statement of victim was recorded by the Illaqa Magistrate on 04.05.2013. On 08.05.2013 Investigating Officer arrested Sanjay, the accused, who during the course of investigation, made disclosure statement Ex.P14 with regard to commission of crime. On an application Ex.P2, the accused was got medico-legally examined from CHC Bawal.
Motorcycle bearing registration No. RJ-02SC-7495 was recovered and the same was taken into possession vide recovery memo Ex.P8. Site plan of the place of recovery Ex.P8/A was prepared.
On conclusion of investigation, report under section 173 of the Code of Criminal Procedure was prepared against the accused for the offences punishable under sections 363, 366, 376 and 506 IPC and submitted before Illaqa Magistrate, who committed the same to the Court of Sessions for trial on 30.07.2013.
Charges under Sections 366, 376 and 506 IPC were framed against the accused on 30.07.2014 by learned trial Court and read over and DINESH KUMAR 2014.11.18 16:57 I attest to the accuracy and integrity of this document Chandigarh CRA-D-1327-DB of 2013
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explained to him. To the charge framed against him, the accused pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined 11 witnesses , whose testimony in brief is as under:-
PW-1 Dr. Girish Kumar, M.O. CHC Bawal had medico-legally examined Sanjay, accused. He proved MLR Ex.PN and stated that in his opinion that there was nothing to suggest that he was unable to commit sexual intercourse.
PW2 Chet Ram, complainant reiterated the facts as stated by him in his written complaint to the police. Besides, he stated that the engagement ceremony of his daughter had been fixed for 25.4.2013.He stated that his daughter was recovered from village Bandra (Rajasthan) on 3.5.2013 and was handed over to him. In cross examination, he stated that the marriage of his daughter had been arranged at village Maswasi (Rajasthan). He also stated that accused Sanjay was not on visiting terms in their house.
PW3 the victim deposed that on 24.04.2013 at 12.00 noon she alongwith Sushma, her sister-in-law (bhabhi) and latter's brother Jeet Ram had gone to Bawal market for purchasing household articles as her engagement ceremony had been fixed for the next day i.e., 25.4.2013. After they reached the market Sanjay, accused came there on motorcycle. He had a conversation with Sushma and her brother Jeet Ram on a side. Then on the asking of Sushma (her bhabi), she sat on the pillion of motorcycle. The accused drove the motorcycle out of the market area. She asked the accused as to where he was going since the market had been left behind but he did not DINESH KUMAR 2014.11.18 16:57 I attest to the accuracy and integrity of this document Chandigarh CRA-D-1327-DB of 2013
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stop. She jumped down from the moving motorcycle and sustained injuries on her leg and arm. The accused threatened her that he was having a revolver and if she did not accompany him, he would shoot her. Due to fear, she sat on the pillion of the motorcycle of the accused, who took her to a small room in the fields. There he pinned her down. She protested and raised alarm. But he gagged her mouth, slapped her and forcibly committed sexual intercourse with her. The accused kept her there for 2-3 hours and thereafter, he took her to several other places and left her at village Bandra where her father alongwith Sarpanch of village Jhabua and some other persons came and brought her back and took her to police station Bawal, from where she was brought to Civil Hospital, Rewari where she was medico-legally examined.
In her cross examination she admitted that there were several persons in the market when she sat on the pillion. She did not get any medical treatment for her injuries sustained on account of jumping from the moving motorcycle. She stated that there was a petrol pump in the vicinity of the room where she had been taken. She stated that the accused had taken her to village Bandra on 2.5.2013 at about 3.00 p.m. Her father and the Sarpanch of her village reached there at about 5.00 p.m. She admitted that she had not contacted them. She stated that she did not come across any person while being carried from one place to another. Though she had noticed villages/ cities on the way but she did not know their names. She stated that the accused used to get meals from the hotel but he never took her to any hotel.
PW4 Samunder Singh, Constable deposed regarding delivery of DINESH KUMAR 2014.11.18 16:57 I attest to the accuracy and integrity of this document Chandigarh CRA-D-1327-DB of 2013
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Special Report to Illaqa Magistrate as well as to Senior Officers of the Police.
PW5-MHC Vikram Singh tendered his affidavit Ex.P10 in evidence wherein it was stated that sealed parcels were deposited with him by the Investigating Officer and he handed over the same to EHC Mahipal for chemical analysis.
PW6- Maya Rani, ASI, deposed about the medico-legal examination of the victim at G.H. Rewari. She further deposed that Manoj Kumar produced matriculation certificate of the victim before the Investigating Officer in her presence, which was taken into possession vide memo Ex.P12.
PW7- Sh.Manoj Rana, JMIC, recorded the statement of the victim under section 164 Cr.P.C. on 04.05.2013.
PW8 Anil Kumar, ASI, is the investigating officer of the case and deposed regarding the various steps in the investigation.
PW9 Dr. Anju, Medical Officer, who conducted the medical examination of the victim tendered her affidavit Ex.P25 in evidence. She proved copy of MLR Ex.P26. She opined after perusal of FSL report Ex.P5 and on the basis of the MLR that the possibility of sexual intercourse could not be ruled out. She identified the clothes which were taken into possession at the time of medico-legal examination of the prosecutrix.
PW10 EHC Mahipal deposed that on 16.05.2013 MHC Vikram Singh handed over to him the case property for depositing the same at FSL Madhuban, Karnal and he deposited the same on the same day. DINESH KUMAR 2014.11.18 16:57 I attest to the accuracy and integrity of this document Chandigarh
CRA-D-1327-DB of 2013
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PW11 EHC Dharampal , Draftsman deposed that on 4.6.2013 he prepared scaled site plan Ex.P27 on the asking of Anil Kumar, ASI with correct marginal notes.
Thereafter, evidence of the prosecution was closed by learned Public Prosecutor for the State vide separate statement dated 07.09.2013.
On being examined under Section 313 Cr.P.C., Sanjay, accused denied the allegations levelled against him by the prosecution witnesses. In defence, the accused pleaded that the witnesses had deposed falsely being interested and relatives. The accused further pleaded that he had been falsely involved in this case.
However, no evidence in defence was led by the accused. After hearing learned counsel for the parties and perusing the record learned trial court acquitted the accused of the charges levelled against him.
Feeling aggrieved against the impugned judgment, instant appeal has been filed by the victim.
The learned trial Court was not convinced about the prosecution version and held that there were gaps therein, certain material circumstances remained unexplained and consequently there was a mystery attached to the whole version.
The victim had gone for shopping to Bawal alongwith her sister- in-law(Bhabhi) and her bhabhi's brother. Her engagement was to be solemnized on the next day i.e. 25.04.2013. The accused riding his motorcycle, reached the market. He had a word with Sushma and Jeet Ram DINESH KUMAR 2014.11.18 16:57 I attest to the accuracy and integrity of this document Chandigarh CRA-D-1327-DB of 2013
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whereupon, they asked the victim to accompany the accused on his motorcycle for making purchases. The victim sat on the pillion of the motorcycle of the accused and the victim's Bhabi and her bhabi's brother entered a cloth shop. When the accused did not return with the victim, then the victim's bhabi with her brother went back to the village and narrated the entire incident.
The victim's Bhabi and her brother were not examined by the prosecution to know the reason as to why the victim was made to go with the accused and for what purpose. The learned trial Court found it strange that the victim would accompany an unknown person for shopping, especially, when her engagement ceremony had been fixed for the next day. The articles to be purchased had to be of the victim's choice as the shopping was in connection with her engagement and it has not been explained as to why her bhabi and her brother separated from her and decided to shop separately.
The learned trial Court further found it strange that though the victim remained with the accused from 24.04.2013 to 02.05.2013 when he left her at village Bandra and she travelled with him on the motorcycle from place to place, she did not encounter any person on the way and she did not raise alarm that she was being carried away against her will. The learned trial court concluded that this shows that she was a consenting party and had not been abducted or carried away against her will.
Another doubtful and unexplained circumstance was that the accused left the victim at village Bandra (Rajasthan) at 3.00 pm on 2.5.2013 DINESH KUMAR 2014.11.18 16:57 I attest to the accuracy and integrity of this document Chandigarh CRA-D-1327-DB of 2013
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and without any intimation to them, her father and the Sarpanch of their village reached there at about 5.00 pm. How did they know that she had been left at village Bandra and who informed them is not explained.
PW2 Chet Ram, the complainant, as well as the father of the victim, had stated that on 24.4.13, after waiting or some time when the victim and the accused did not come back, Sushma and Jeet Ram came back and narrated the entire incident. A Panchayat was convened at which Mukesh the brother-in-law of the accused stated that he did not know his whereabouts and the Panchayat decided that an FIR be lodged. Assuming that the Panchayat was convened on the next day of the incident i.e. 25.04.2013 and a decision was taken to lodge the FIR, once Mukesh the brother in law of the accused stated that he did not know about the whereabouts of the accused, there is no explanation as to why the complaint was not lodged immediately thereafter but after a gap of about 6 days.
For all the aforesaid reasons the Ld. Trial Court concluded that the prosecution had failed to prove beyond doubt that the accused abducted the victim or that he intimidated her and then committed rape with her.
Learned Counsel for the appellant has submitted that learned trial Court was wrong in acquitting the accused ( respondent No.2 ) on flimsy grounds. He submitted that the victim has clearly narrated the facts and stated that the accused committed forcible sexual intercourse with her and detained her against her will. She had jumped of from the motorcycle and sustained injuries, but the accused threatened her that he had a revolver and if she did not accompany him, he would shoot her and she had no choice but DINESH KUMAR 2014.11.18 16:57 I attest to the accuracy and integrity of this document Chandigarh CRA-D-1327-DB of 2013
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to accompany him. The accused had duped the victim's sister in law and her sister in law's brother that he would take her out for shopping but he had no such intention which became manifest when he did not stop in the market but took her away forcibly. The victim remained under fear of death and only when he left her at village Bandra and her father and Sarpanch of their village reached there she narrated the entire incident and the complaint was lodged.
There is no merit in the arguments of the learned counsel for the appellant.
The Learned Trial Court has referred to the gaps in and the untenability of the prosecution version. The prosecution version that the victim was forcibly taken away and detained against her will for almost one week does not appeal to reason. It has not been explained as to why the victim could not raise alarm when the accused took her from one village to another in the course of this period. She has stated that the accused used to go to get the meals from the hotels. She has not explained as to why she could not escape during his absence. She has not explained as to where they stayed during those days and why she could not seek help from any other person either at or in the vicinity where they stayed or during their movement from one place to another which as per the victim's version was on the motorcycle.
PW2 in his cross examination has stated that the accused, who was married in their village and resided there was not on visiting terms with them. If that is so, then what was the occasion for the victim's bhabi to ask DINESH KUMAR 2014.11.18 16:57 I attest to the accuracy and integrity of this document Chandigarh CRA-D-1327-DB of 2013
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the victim to accompany the accused for shopping in the market. The learned Trial Court has rightly recorded that the non-examination of the victim's bhabi and her bhabi's brother is a vital omission as only they could explain as to why they had asked the victim to accompany him.
It has been concluded by the learned trial court that the prosecution version is doubtful. Hence, the accused was rightly given the benefit of doubt and acquitted of the charges.
Accordingly there is no merit in the appeal and the same is dismissed.
( RAJIVE BHALLA) (HARINDER SINGH SIDHU)
JUDGE JUDGE
19.09.2014
dinesh/gian
DINESH KUMAR
2014.11.18 16:57
I attest to the accuracy and
integrity of this document
Chandigarh