Lalit Kumar vs State of Haryana

Sabina, J.—Accused-Lalit Kumar was sent up to face trial in case FIR No. 61 dated 15.2.2007 registered under Sections 363/366/376(2g)/344/506/34 of the Indian Penal Code (for short `IPC'') . Vide judgment dated 30.9.2009 passed by the Additional Sessions Judge, Amabla the accused was convicted for an offence under Sections 363, 366, 376(2)(g), 506 and 344 IPC. Vide order dated 3.10.2009, the convict-Lalit Kumar was sentenced as under:

Under Section 376(2)(g) IPC Rigorous Imprisonment for ten years and to pay a fine of Rs. 10,000/-. In default of payment of fine, he shall further undergo imprisonment for two years

Under Section 363 IPC Rigorous imprisonment for five years and to pay a fine of Rs. 1000/-. In default of payment of fine, he shall further undergo imprisonment for a period of six months

Under Section 366 IPC Rigorous Imprisonment for five years and to pay a fine of Rs. 1000/-. In default of payment of fine, he shall further undergo imprisonment for a period of one year

Under Section 344 IPC Rigorous imprisonment for two years and to pay a fine of Rs. 500/-. In default of payment of fine, he shall further undergo imprisonment for three months

Under Section 506 IPC Rigorous Imprisonment for six months

All the substantive sentences were ordered to run concurrently. Hence, the present appeal by the accused-appellant.

Prosecution case, as noticed by the trial Court in paras No. 4 and 5 of its judgment, is reproduced herein below:

The facts of the case are that on 15.2.2007 at 9.05 p.m. a police party headed by ASI Suresh Pal, Incharge, Police Post No. 2, Police Station, Ambala City alongwith HC Subhash Chand was present at Meera Chowk, Ambala City in connection with patrolling, when the prosecutrix (complainant) along with her brother Surinder Kumar met ASI Suresh Pal and submitted an application Ex.PO which was addressed to the SHO, Police Station Ambala City. It was stated in the application Ex.PO by the prosecutrix that she is a resident of Ravi Dass Majri, Ambala City. She is aged about 17 years. On 9.12.2006 at about 6.00 p.m. her neighbour Dayalo had sent her to one Dr. Sohan Lal for taking medicines. While she was coming back after taking medicines, Kishan Lal and Sunny met her on Takia road. They both told the prosecutrix that her sister Sonu, who was mentally retarded, was roaming in the area of Inder Puri. On the asking of both the boys, the prosecutrix went with them. They took the prosecutrix at the house of Lalit (present accused) situated in Hari Nagar. The prosecutrix further stated that Lalit, Kishan Lal and Sunny threatened her with dire consequences and they committed rape with her turn by turn against her wish. The prosecutrix was then confined in a room. On the next day, the prosecutrix was shifted to Amabla Cantt. and in the evening hours she (prosecutrix) was brought to the City Park near bus stand Ambala City, where Titu and Ravi also met them. It was further stated that thereafter, accused Titu, Ravi and Lailt asked the prosecutrix to leave her at her house. Then Titu and Ravi also raped the prosecutrix in the fields behind the kothi of Birju. Meanwhile Vicky and Biru also came there and they also raped her. Thereafter Titu, Ravi, Vicky and Biru sped away from there. However, Lalit took the prosecutrix at her room and raped her. On the next morning accused Lalit took the prosecutrix to village Baltana (Punjab) where she was confined in a room and raped by Lalit. The prosecutrix further stated that she was taken to Baltana by accused Lalit on the pretext that he would marry the prosecutrix. Thereafter, accused Lalit refused to marry the prosecutrix. The prosecutrix got herself freed from the clutches of the accused Lalit on 15.2.2007 and returned to her house at Ambala. The prosecutrix made a prayer to take legal action against all the accused. On this statement Ex.PO made by the complainant,ASI Suresh Pal made his endorsement Ex.PO/1 and sent the same to the police station, on the basis of which formal FIR Ex.PO/2 was recorded u/s 363/366/376(2g)/344/506/34 IPC by ASI Vishvjit Singh, who also made his endorsement Ex.PO/3 on the complaint. Investigation was taken up by ASI Suresh Pal. All the accused, except accused Lalit, were arrested. They were put to trial and sentenced as stated above. On 17.7.2008, the present accused Lalit was arrested. Statements of the witnesses were recorded. On the demarcation of the prosecutrix and the accused, rough site plan f the place where the rape was committed upon the prosecutrix was prepared. The prosecutrix was got medico legally examined. Scaled site plan Ex.PK of the place of the offence was got prepared from Constable Ram Saran. On completion of the investigation, final report u/s 173 Cr.P.C. was prepared by Inspector/SHO Dharamvir of Police Station Amabala City.

I have heard the learned Counsel for the parties and have gone through the record of the case carefully.

The appellant has been convicted for an offence of gang rape.

As per the prosecutrix, on 9.12.2006 she had been taken away by Sunny and Kishan on the pretext that her elder sister Sonu was roaming in the area of Hari Nagar. Her sister Sonu was mentally retarded. Thereafter, in a house, Kishan, Sunny Lalit, Vicky and Biru committed rape on her person. On the next day, Lalit took her to Ambala Cantt and committed rape on her person. Lalit took her to Chandigarh in a house where his mother was residing and kept her there for two months and committed rape on her person. On 15.2.2007, she was brought to Ambala City and was handed over to her parents.

It has been held by the Apex Court in Dinesh Jaiswal v. State of M.P. 2010 (2) RCR (Criminal) 139 which reads as under:

There can be no quarrel with this proposition (and it has been so emphasised by this Court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence.

Although in the normal circumstances, the statement of the prosecutrix is liable to be believed but in the facts and circumstances of the case, the statement of the prosecutrix fails to inspire confidence. The date of birth of the prosecutrix as per Exhibit PC, a certificate issued by the School, is 6.8.1988. PW6 Head Teacher, Government Primary School Part 5-B, Amabala City deposed that Pooja Rani was admitted in their School on 2.9.1994 and her name was struck off due to her continuance absence in 3rd standard. She was again readmitted on 23.4.1993 and her date of birth given by her mother was 6.8.1989. The said witness in her cross-examination deposed that as per record, the date of birth of prosecutrix was 6.8.1988 which was provided by the father of the prosecutrix. Thus, the prosecutrix was a major at the time of alleged occurrence. Prosecutrix lived with the appellant for more than two months in his house. Mother of the appellant was also allegedly residing in the said house. Prosecutrix never made any complaint to any person. The house of the appellant was surrounded by other houses and shops. She had accompanied the appellant to different places but she did not try to complain to any other person. It appears that the prosecutrix had gone with the appellant of her own freewill and stayed with him for more than two months. Thereafter, she returned back home and lodged the complaint against the appellant and other coaccused on 15.2.2007. The brother of the prosecutrix, Surinder Kumar, who had also signed the complaint Exhibit PO/2, was not examined by the prosecution. He was not even cited as a witness. The statement of the prosecutrix fails to inspire confidence. An accused is presumed to be innocent till proved guilty and the prosecution is required to prove its case against accused beyond the shadow of reasonable doubt.

Accordingly, this appeal is allowed and impugned judgment/order whereby the appellant was convicted and sentenced under Sections 363/366/376(2)(g)/344/506 IPC are set aside. Consequently, the appellant is acquitted of the charge framed against him.