Punjab-Haryana High Court
Rekha vs State Of Haryana & Ors on 1 September, 2014
Author: Surinder Gupta
Bench: Rajive Bhalla, Surinder Gupta
CRA-D-434-DB of 2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No.D-434-DB of 2014.
Date of Decision: September 01, 2014.
S (complainant)
..........APPELLANT(s).
VERSUS
State of Haryana and another
........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. J.P. Rana, Advocate
for the appellant (s).
*******
SURINDER GUPTA, J.
This appeal is directed against the judgment dated 28.11.2013 passed in Sessions case No.07 of 2013 whereby the Additional Sessions Judge, Rewari acquitted respondent No.2 Monu @ Rakesh @ Shree Bhagwan of the charge under Sections 376, 498 and 506 of Indian Penal Code (for short 'IPC').
On the complaint of prosecutrix (now appellant) dated 02.08.2012, FIR No.246 dated 02.12.2012 was registered at Police Station Rampura, Tehsil Farukhnagar, District Gurgaon. In her complaint Ex.PD, the appellant had stated that she was married on 06.03.2003 with Sanjeev Kumar of Rajana Pana, Bhiwani but her in-laws were harassing and beating her for bringing insufficient dowry. On 30.08.2011, she was given beatings SACHIN MEHTA 2014.09.22 12:02 I attest to the accuracy and integrity of this document CHANDIGARH CRA-D-434-DB of 2014 -2- and turned out of her matrimonial home. She reached Railway Station, Rewari to go to her parental house, where Anita wife of Ram Singh resident of Bhiwani, known to the appellant, met her along with respondent No.2. They allured the appellant to sit in Bolero vehicle and took her to village Rampura. Anita snatched her gold jewellery i.e. two Kangan, one chain, two rings, one Tika and ear rings along with cash of `20,000. Respondent No.2 kept the appellant locked in a room and raped her. Cousins of respondent No.2 namely Ram Niwas and Kamlesh were also present, who at pistol point, snatched the remaining jewellery of the appellant i.e two gold rings, ear- rings and nose pin. Thereafter respondent No.2 took the appellant to his brother's house at Palam and committed rape with her. From there he took the appellant to the house of his brother at Gurgaon and again raped her. The signatures of appellant were obtained on blank papers. From Gurgaon, the appellant was taken to a brick-kiln at village Ballabhgram near Khairthal, where the relatives of respondent No.2 were also present. Here also respondent No.2 committed rape with the appellant and used a knife to threaten her. The appellant raised noise which attracted a person named Santu to the spot, who got the appellant released from respondent No.2, gave information to her parents, who came to Ballabhgram and took the appellant to their village Jatola.
After registration of the FIR on 02.12.2012, the appellant was got medico-legally examined from General Hospital, Rewari on the same day. Respondent No.2 was arrested on 01.02.2013 and was got medico- legally examined. After completion of investigation, final report under SACHIN MEHTA Section 173 (2) Code of Criminal Procedure (for short 'Cr.P.C.') was 2014.09.22 12:02 I attest to the accuracy and integrity of this document CHANDIGARH CRA-D-434-DB of 2014 -3- presented in the Court of Judicial Magistrate, Rewari.
As the allegations levelled in the final report disclosed an offence punishable under Section 376 IPC, the case was committed to the Court of Sessions for trial, where respondent No.2 was charge-sheeted for the offences punishable under Sections 376, 498 and 506 IPC to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined the prosecutrix- appellant as PW2, Inspector Ram Kumar, Investigating Officer of this case as PW11, Head Constable Lal Chand who got respondent No.2 medically examined and had participated in the investigation of the case as PW12, Sub Inspector Bhagat Singh, who arrested respondent No.2 and conducted further investigation as PW13 and father of appellant as PW14. Dr. Meenakshi Tyagi, who conducted the medico-legal examination of appellant appeared as PW1. She did not found any injury or sign of struggle on the person of appellant. PW5 Dr. Jagdish Tanwar had conducted the medico-legal examination of respondent No.2 and found him capable of sexual intercourse. Dharampal PW3 is the Draftsman, who had prepared the scaled site plan Ex.PE. PW4 Lady Constable Mukesh had taken the appellant to General Hospital, Rewari for medical examination. PW6 Constable Sanjay, PW7 Head Constable Anil Kumar, PW8 EHC Om Parkash, PW9 Head Constable Yogesh and PW10 Constable Mukesh Kumar are formal witnesses.
After completion of prosecution evidence, statement of respondent No.2 under Section 313 Cr.P.C. was recorded, wherein he denied SACHIN MEHTA the prosecution case and pleaded his false implication. Respondent No.2 2014.09.22 12:02 I attest to the accuracy and integrity of this document CHANDIGARH CRA-D-434-DB of 2014 -4- examined Constable Reena as DW1, Sunita Bhomla, DRK, Record Room, Rewari as DW2 and Jag Ram, Complaint Clerk, S.P. Office, Rewari as DW3.
The facts which appear to have weighed before trial Court while acquitting respondent No.2 are summarised as follows:-
(i) As per the appellant, she was kidnapped on 30/31.08.2011 but she admittedly signed an affidavit Ex.DW3/B on 09.09.2011 to file a petition under Section 125 Cr.P.C. on 19.09.2011 in the Court of the Chief Judicial Magistrate, Rewari. She had admitted her signatures on this petition, copy of which is Ex.DW2/B and also admitted her signatures on the power of attorney, she gave to her counsel in that case, copy of which is Ex.DW2/A.
(ii) The statement of appellant is not credible.
(iii) The appellant, aged about 28 years, mother of two children, had stayed with respondent No.2 for a period of nine months but never raised any alarm, hue and cry.
(iv) No signs of struggle or mark of injury were found on her body to show that she had resisted the sexual assault on her and no semen was found on the vaginal swabs taken at the time of her medical examination.
(v) As per the appellant, she was rescued from respondent No.2 by one Santu on 09.05.2012 but the said Santu has not been examined as a witness.
(vi) Even after the said release of the appellant on 09.05.2012, the complaint was made on 02.08.2012 i.e. after a period of another three months and the delay has not been explained.
(vii) There were material contradictions in the prosecution case and the testimony of appellant.
(viii) The appellant had access to a mobile phone but never intimated her parents and brother about her kidnapping/rape.
(ix) The appellant stayed in Jhugi at the brick-kiln at Khairthal for 1-
2 months, where relatives of respondent No.2 also lived. Here SACHIN MEHTA 2014.09.22 12:02 I attest to the accuracy and integrity of this document CHANDIGARH CRA-D-434-DB of 2014 -5- respondent No.2 came to know that appellant had not been divorced by her previous husband and left her. It was at this juncture, Santu telephonically informed her parents.
(x) The present case was got registered to counter the case registered under Sections 323/324 IPC by brother of respondent No.2 against brother of appellant.
(xi) The testimony of appellant that she was shown countrymade pistol and knife while abducting her, was not found reliable as the above weapons were not recovered.
Learned counsel for the appellant has argued that the trial Court while acquitting respondent No.2 has overlooked the fact that Investigating Officer has not conducted the investigation of the case in a proper manner and the material witnesses like Santu were not cited. The delay in lodging the report with the police took place as the appellant had studied only upto 4th/5th standard and could not be expected to be so vigilant to take immediate steps to avail the legal remedy against respondent No.2. She cannot be made to suffer for the lapses on the part of the investigating agency and the prosecution, particularly when both the agencies have tried to help respondent No.2 during the investigation and trial of the case by withholding material witnesses.
We have considered the submissions of learned counsel for the appellant and perused the trial Court record carefully.
A very important fact which belies and shatters the entire prosecution case is that vide petition Ex.DW2/B, filed on 19.09.2011, the appellant claimed maintenance for her and her minor children from her husband Sanjeev. This petition was filed in the Court after her alleged SACHIN MEHTA kidnapping on 30.08.2011.
2014.09.22 12:02
She had also signed the power of attorney I attest to the accuracy and integrity of this document CHANDIGARH CRA-D-434-DB of 2014 -6- (Ex.DW2/A) in favour of her counsel who filed her petition. If she had been kidnapped and was under confinement, it was not possible for her to file a petition under Section 125 Cr.P.C. against her husband.
Learned counsel for the appellant has not disputed that during the pendency of the proceedings under Section 125 Cr.P.C. the appellant gave the custody of her daughter Muskan to her husband in February, 2012 and also submitted affidavit to his effect in the Court, which has been placed on file as Mark-CC. She had also given affidavit (Ex.DW3/B) which is dated 09.09.2011, wherein she has deposed that she left her matrimonial home of her own due to the beatings and harassment by her husband. She had left her matrimonial home in three clothes and was looking after her children by doing labour work.
The above documentary evidence shatters the prosecution case that the appellant was kept confined under threat/force by respondent No.2 after 30.08.2011.
The most material piece of evidence in this case is the testimony of appellant herself who appeared as PW2. She has stated that after being turned out of her matrimonial house on 30.08.2011, she came to Railway Station, Rewari where at the instance of one Anita, she instead of going by train took a seat in Bolero vehicle for going to her parental village. Instead of parental village, she was taken to Rampura, Rewari where respondent No.2 took her to the house of Ram Niwas and committed rape on her. Said Ram Niwas in the presence of his wife also attempted to rape her and when respondent No.2 committed rape on her, Kamlesh wife of Ram Niwas was SACHIN MEHTA also present. 2014.09.22 12:02 I attest to the accuracy and integrity of this document CHANDIGARH CRA-D-434-DB of 2014 -7- From Rampura, she was taken to Palam in the house of aunt (Bua) of respondent No.2, where Mahipal and Jaipal raped her along with respondent No.2. The above improvement in her statement made by the appellant shows that she was out to implicate all the family members of respondent No.2. Had there been any iota of truth in the testimony of appellant, she must have stated these facts in her complaint on the basis of which FIR was lodged. It is not believable that appellant was kept confined in a room for 15 days and continually raped by respondent No.2 and his brothers Jaipal and Mahipal but she spared Jaipal and Mahipal in her complaint to the police.
The appellant has further stated that from Palam, she was taken to a brick-kiln at Khairthal (Rajasthan) where the relatives of respondent No.2 were also present. She stayed there for 1-2 months. Here respondent No.2 came to know that appellant was not divorced and left her. At this stage, she contacted one Santu who informed her parents and called them. The parents of appellant came there and took her to their village. She has further stated that on 16.05.2012, she had given an application to the police giving her complete version but the said application has not come on file. No copy of that application has been produced or even summoned, to support her version. On every point, she has made improvement over her statement contained in complaint Ex.PD to which her attention was drawn during her cross-examination.
It is not disputed that Jaipal brother of respondent No.2 had got registered a case bearing FIR No.185 dated 28.05.2012 (Ex.DW1/A) at SACHIN MEHTA Police Station Sector-10, Gurgaon against Parveen, brother of appellant, for 2014.09.22 12:02 I attest to the accuracy and integrity of this document CHANDIGARH CRA-D-434-DB of 2014 -8- offences punishable under Sections 323 and 324 IPC. The complaint was made by the appellant on 02.08.2012 and the FIR in this case was lodged on 02.12.2012 i.e. much after the registration of the case against the brother of appellant and there is no explanation as to why the appellant had remained silent for a period of about three months after she reached her parents' home. From the statement of appellant, it is clearly made out that respondent No.2 had left her company when he came to know that she was not divorced. At this juncture, she took the assistance of one Santu and came to her parental village. It is not believable that appellant was filing petition under Section 125 Cr.P.C. against her husband while confined by respondent No.2 and respondent No.2 was not aware of this fact. As per the appellant, she had not escaped from confinement of respondent No.2, rather it was respondent No.2 who left her company on coming to know of her marital status. This creates a serious doubt about the prosecution version and statement of appellant that she was kept under confinement and raped by respondent No.2.
The appellant has stated that from Rampura, where respondent No.2 had initially taken her, she had gone with respondent No.2 to Palam in a private vehicle and was accompanied by driver of the vehicle and two brothers of respondent No.2. The journey from Rampura to Palam was of 2/3 hours. At this juncture, she has come up with another version of being given injections and sedative to her by respondent No.2, which is also an improvement on her initial version given in the FIR.
The appellant was having access to the mobile phone of respondent No.2. She has stated that she used the phone of respondent No.2 SACHIN MEHTA and called her father-in-law to take her. After 10-15 days, she again made 2014.09.22 12:02 I attest to the accuracy and integrity of this document CHANDIGARH CRA-D-434-DB of 2014 -9- call to her father-in-law. It is not believable that she left her matrimonial home after being given beatings and instead of calling her parents/brother, she was making call to her father-in-law to save her from the clutches of respondent No.2, knowing fully well that it was her father-in-law, who was financing respondent No.2. Appellant has given description of her living with respondent No.2 at Khairthal as follows:-
"The place where I was confined at Khairthal was very small and was in a shape of jhugi. The jhugi in which we were residing was surrounded by many other jhugi. The relatives of Monu used to reside near the jhugi we were staying. The father in law of his brother was also residing in those jhugi. Other people were residing near those jhugi but I do not know them. Bathroom was inside the jhugi. The aunt of Monu used to provide us water for the house. Whenever Monu used to go outside of the jhugi, the other brothers used to come to our jhugi. I used to wash my clothes inside the jhugi and the water for the same was provided by the relatives of Monu. I do not know as to who used to bring the household articles. I do not know as to how far Santu resided from our jhugi. I was serve food from morning to evening in my jhugi. I never moved out of the jhugi."
In her above statement, the appellant has though tried to make out that she was kept under constant watch by respondent No.2 or his brothers but sill being a congested and thickly populated area, she had enough time to raise alarm and to apprise the other residents about her confinement and commission of rape with her, particularly when respondent No.2 had left her company on coming to know of her marital status. She has SACHIN MEHTA 2014.09.22 12:02 I attest to the accuracy and integrity of this document CHANDIGARH CRA-D-434-DB of 2014 -10- not denied that she handed over her daughter to her in-laws and she (her daughter) is living at Bhiwani since February, 2012. The appellant has left the house of her in-laws on 30.08.2011. She was taken away by her parents and brothers to village Jatola on 08.05.2012. There is no evidence that the parents of the appellant have lodged any report with the police about their missing daughter. These facts have been weighed before the trial Court while acquitting respondent No.2. The testimony of appellant as discussed above, creates serious doubt about the prosecution version that the appellant was kidnapped, kept under confinement and raped. From the testimony of appellant, it appears that she had been living with respondent No.2 of her own volition and when respondent No.2 came to know of her marital status that she had not taken divorce, he himself left her company. It was, at this juncture, she took the assistance of Santu to contact her father and came to her parents' house. Even after reaching her parents' house, she remained silent and never lodged FIR against respondent No.2. It was only after the registration of the FIR against her brother at the instance of brother of respondent No.2 that she lodged the present FIR.
As a sequel of our discussion above, we find no merits in this appeal and the same is dismissed.
( RAJIVE BHALLA) ( SURINDER GUPTA )
JUDGE JUDGE
September 01, 2014.
Sachin M.
SACHIN MEHTA
2014.09.22 12:02
I attest to the accuracy and
integrity of this document
CHANDIGARH