Punjab-Haryana High Court
Sanjay vs State Of Haryana on 22 September, 2014
Crl. Appeal - S - 374 - SB of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA,
AT CHANDIGARH
-.-
Crl. Appeal - S - 374 - SB of 2004
Decided on : September 22, 2014
Sanjay ... Appellant
Versus
State of Haryana ... Respondent
CORAM : HON'BLE MR.JUSTICE MAHAVIR S. CHAUHAN
Present : Mr. R.S.Chahal, Advocate, for the appellant.
Mr. Suvir Sidhu, DAG, Haryana, for the respondent - State.
Mahavir S. Chauhan, J. (Oral)
Having been convicted and sentenced to rigorous imprisonment for 10 years with a fine amounting to Rs.5,000/- and in default of payment of fine, to further rigorous imprisonment for two years under Section 376 of the Indian Penal Code, 1860 ('IPC' - for short) and rigorous imprisonment for a period of five years with a fine amounting to Rs.2,500/- and in default of payment of fine to further rigorous imprisonment for a period of one year under Section 366, IPC, vide judgment of conviction/order of sentence dated 17.01.2004 by the Court of Additional Sessions Juge, Rohtak ('trial Court' - for short), convict Sanjay has brought this appeal to challenge his conviction and to seek his acquittal.
State is contesting the appeal.
I have heard learned counsel for the appellant and learned TRIPTI SAINI 2014.10.07 17:12 I attest to the accuracy and integrity of this document Crl. Appeal - S - 374 - SB of 2004 -2- Deputy Advocate General for the respondent - State.
Learned counsel for the appellant argues that though age of the prosecutrix being about 17 years and the occurrence as such are not disputed, but from the circumstances appearing on record, it is clearly established that the prosecutrix was a consenting party and as such finding of conviction recorded by the learned trial Court cannot be allowed to sustain. Learned counsel for the appellant refers to statement of the prosecutrix made by her in her cross-examination, to show that as per her own admission, the prosecutrix was taken to various places by bus and was made to stay there for days together but she did not disclose to anybody either on way to those places or while staying there about her sexual exploitation by the appellant against her wish and consent. Learned counsel also refers to photographs Exhibits D1 and D2 to impress that the prosecutrix had relations with the appellant and as such had accompanied him and had submitted for the sex act on her own free wish.
Per contra, learned State counsel would argue that in the evidence of complainant - Santa (PW-10) and the prosecutrix (PW-11) it has been sufficiently proved that the prosecutrix, a girl aged about 17 years, was enticed away by the appellant and was subjected to sexual intercourse against her wish and consent. Learned State counsel would also submit that in the evidence of the prosecutrix (PW-11), it has come that she was prevented by the appellant from disclosing the occurrence to anybody and that being so it cannot be said to be a case of consent.
Nothing more has been urged on either side.
TRIPTI SAINI2014.10.07 17:12 I attest to the accuracy and integrity of this document Crl. Appeal - S - 374 - SB of 2004 -3- Before analyzing the evidence, in the light of the submissions made for/against the impugned judgment/order, it is necessary to have a glance across the circumstances leading to filing of the instant appeal.
As per case of the prosecution, prosecutrix is daughter of the complainant, namely, Santra. On 29.07.2003 at about 3:00 PM, prosecutrix left her parental home to go to Dadri to see her sisters, namely Shalu and Kamla. After departure of the prosecutrix, appellant came to the complainant and enquired about the prosecutrix to be told by the complainant that the prosecutrix had gone to Dadri. Thereafter, the appellant also left saying that he would go to Dadri. The prosecutrix did not reach Dadri and also did not return home. Complainant made a written complaint (Exhibit PL) before the investigating officer, ASI Rajinder Kumar (PW-12). On the basis of the complaint Ex.PL, a formal First Information Report ('FIR' for short) Exhibit PH was recorded. The matter was investigated into. During investigation on 26.08.2003, prosecutrix was recovered from custody of the appellant vide memorandum Exhibit P/10. Dr. Neeta Mehta (PW-1) medico legally examined the prosecutrix and Dr. Gajinder Singh (PW-2) medico legally examined the appellant. Statements of witnesses were recorded. On completion of investigation, appellant was challaned and was charged by the learned trial Court under Sections 366 and 376, IPC appellant pleaded not guilty to the charge and claimed to be tried. In a bid to fix guilt to the appellant, prosecution examined complainant - Santra (PW-
10), prosecutrix (PW-11), Dr. Neeta Mehta (PW-1), Dr. Gajinder Singh (PW-2), ASI Rajinder Kumar (PW-12) and Manchar Gultai (PW-3) besides TRIPTI SAINI 2014.10.07 17:12 I attest to the accuracy and integrity of this document Crl. Appeal - S - 374 - SB of 2004 -4- formal witnesses, namely Constable Sumit Kumar (PW-4), H.C Ram Kumar (PW-5), Jagbir Singh (PW-6), Constable Silak Ram (PW-7), ASI Samay Singh (PW-8) and Inspector Yad Ram (PW-9).
All the incriminating circumstances, appearing in the evidence of the prosecution when put to the appellant in his examination under Section 313 of the Code of Criminal Procedure, 1973 ('Cr.P.C' for short), were denied by him and plea of innocence and false implication was reiterated. However, appellant did not lead any evidence in defence except for tendering report of Forensic Science Laboratory, Exhibit D-3, Letters Exhibit D-4 to D-11 and certified copies of proceedings in DDR No. 63 dated 28.05.2003 as Exhibit D-3.
Learned trial Court, on hearing the prosecutor and the defence, found that the prosecution was able to prove guilt of the appellant beyond reasonable doubt and, accordingly, convicted and sentenced him as hereinbefore stated.
As aforesaid, there is no dispute with regard to age of the prosecutrix being more than 16 years, or say a little less than 18 years. Still it may pointed out that PW-3 Manchar Gulati has proved on record Exhibit PF School Leaving Certificate of the prosecutrix, according to which in the school record date of birth of the prosecutrix is recorded as 19.10.1986 and counted therefrom her age on the date of occurrence comes to more than 16 years and 9 months. Incidently PW-3 Manchar Gulati has not been confronted with a suggestion that date of birth of the prosecutrix as recorded in certificate Exhibit PF was not her correct date of birth. That being so TRIPTI SAINI 2014.10.07 17:12 I attest to the accuracy and integrity of this document Crl. Appeal - S - 374 - SB of 2004 -5- finding of the learned trial Court that the prosecutrix, on the date of occurrence was more than 16 years of age cannot be interfered with.
As regards the question whether the prosecutrix was subjected to sexual intercourse and the appellant was capable of performing the sex act, suffice it to say that it has come in the evidence of PW-2 Dr. Gajinder Singh that on medico legal examination of the appellant, it was found that there was nothing to suggest that he was incapable of performing the sex act, while according to the findings recorded by PW-1 Dr. Neeta Mehta possibility of prosecutrix having been sexually assaulted could not be ruled out.
Now comes the principal question whether the prosecutrix was removed from lawful guardianship of the complainant and was subjected to sexual intercourse by the appellant against her wish and consent. Awnser to the question, in my considered opinion, is a big "No". Reasons are in very far to seek.
Law was set in motion on written complaint, Exhibit PL, made by the complainant - Santra (PW-10). A perusal of complaint, Exhibit PL, as also sworn deposition of Santra (PW-10) reveals that the appellant was on good terms with the family of complainant as also the prosecutrix, otherwise, he would not have dared to come to the complainant enquiring about the whereabouts of prosecutrix and then to disclose that he would follow the prosecutrix to Dadri. In any case, from the complaint Exhibit PL and deposition of Santra (PW-10), it cannot be concluded that prosecutrix was removed by the appellant from lawful guardianship of Santra (PW-10) TRIPTI SAINI 2014.10.07 17:12 I attest to the accuracy and integrity of this document Crl. Appeal - S - 374 - SB of 2004 -6- because as per her deposition when appellant came to her house, the prosecutrix had already left on the pretext of going to Dadri to see her sisters, namely Shalu and Kamla. Prosecutrix herself has made into witness box and has deposed that the appellant met her on her way to Dadri and allured her towards the bushes behind the under construction Govt. Girls Higher Secondary School, Rohtak . She does not talk of any force or mis- representation having been employed by the appellant. After stating that she was sexually assaulted by the appellant near the aforesaid school, the prosecutrix in her cross-examination has stated that from there she was taken to Malaut at the residence of appellant's sister and was kept there for 13-14 days. She has also admitted that house of appellant's sister was comprised of three bed-rooms and she had 3-4 children. From there she claims to have been taken to Bhiwani by bus, which had many passengers on board. From Bhiwani, she claims to have been taken to Chandigarh where she, alongwith the appellant, was found wandering aimlessly and was booked under Section 109, Cr.P.C. Having been so arrested, the prosecutrix and appellant must have been produced before a Magistrate. From the circumstances as enumerated above it is evident that the prosecutrix had an ample opportunity to disclose to the residents of the house of the appellant's sister, to the co-passengers on board the bus, and to the Magistrate before whom she was produced that she was taken away by the appellant and was subjected to sexual intercourse against her wish and consent, but she did not do so. This, indisputably, amounts to consent of the prosecutrix for accompanying the appellant and then for the sex act.
TRIPTI SAINI2014.10.07 17:12 I attest to the accuracy and integrity of this document Crl. Appeal - S - 374 - SB of 2004 -7-
Contention of learned State counsel that the prosecutrix did not disclose the sex act before anybody as she was prevented by the appellant not to do so, cannot be accepted because the prosecutrix never stated that the appellant either threatened her or used force to prevent her from disclosing the episode to anybody. Even if statement of the prosecutrix that she was prevented by the appellant from disclosing the occurrence to anybody is taken to be correct, still it would amount to consent because she did not disclose it to anybody only because she was stopped by the appellant from doing so. That shows that the prosecutrix was acting in complete unison with the appellant.
In view of the foregoing circumstances, which unfortunately escaped notice of the learned trial Court, judgment of conviction/order of sentence cannot be allowed to sustain and as a natural consequence, the appeal succeeds and is accepted. The appellant is acquitted of the offence of which he has been charged and convicted.
Appellant is on bail. His bails bonds are discharged.
Amount of fine, if already deposited by the appellant, shall be refunded to him as per procedure known to law.
[ Mahavir S. Chauhan ]
September 22, 2014 Judge
tripti
TRIPTI SAINI
2014.10.07 17:12
I attest to the accuracy and
integrity of this document