Moti Lal And Another vs State Of Haryana And Others

Sukhvinder Kaur , J

Appellants have preferred the instant appeal against judgment dated 05.02.2020, passed by learned Additional Sessions Judge, Bhiwani, vide which respondents No.2 to 4 have been acquitted.

Factual scenario, as unfurled by prosecution is that on 14. 11.2018, a complaint was given to the police by complainant/ prosecutrix’s father with the allegations that on 12.11.2018, at about 9.00 am, his daughter, i.e., prosecutrix “D” had gone to her college but she had not returned home since then. He had tried to trace her but she could not be found. On the basis of the above-mentioned complaint Ex.PW4/A of the complainant/ father of prosecutrix “D”, formal FIR Ex.PW4/B under Section 346 IPC was registered by police. On 14.11.2018, rough site plan Ex.PW12/A was prepared at the house of complainant, from where the prosecutrix had left for college. During investigation, on 20.11.2018, prosecutrix was produced by her father in the police station and recovery memo Ex.PW11/A was prepared and the prosecutrix was produced before the Magistrate for recording her statement under Section 164 of Cr.P.C and statement of prosecutrix under Section 164 of Cr.P.C. Ex.PW9/A, was recorded by the learned Magistrate. In the statement recorded under Section 164 Cr.P.C., prosecutrix stated that on 12.11.2018 at about 9.00 am, she had gone to her college where Ajay met her and he took her to Sangam Hotel and committed rape upon her and also threatened her with dire consequences. On that day in the evening, Rajat met her and he took her to Devsar road and committed rape upon her. Prior to that, on 13.06.2017, Himanshu and Rajat had committed rape upon her. On 17.06.2017, Chhotu and Rajat had committed rape upon her. On 19.06.2017, Parshant and Rajat had committed rape with her. After that, Arjun and Anmol met her at Krishna Colony and at unknown place in said locality, Arjun, Anmol, Jony, Sunny and three other persons had committed rape upon her. After that, Arjun and Anmol kept her confined in a room for 4-5 days. On finding an opportunity, she escaped from that place. Arjun and Anmol threatened her that if she would disclose about the incident to anyone, they would kill her. On the basis of that statement, Section 346 IPC was deleted and Sections 323/376D/376/342/365/195A/506 IPC were added. On that day, the prosecutrix was medico-legally examined at General Hospital, Bhiwani. Three sealed parcels of clothes (underwear and jeans), pubic hair and two cotton wool vaginal swabs alongwith forwarding letter and sample seal, handed over by the Medical Officer after examination, were taken into possession vide memo Ex.PW12/D. After that, custody of prosecutrix was handed over to her parents vide memo Ex.PW12/F. On 21.11.2018, CCTV footage of Sangam Hotel Ex.PW8/A, I.D. proofs of prosecutrix (Aadhar card) Ex.PW8/B and accused Ajay Ex.PW8/C and copy of entry register of Sangam Hotel Ex.PW8/D were obtained and same were taken in police possession vide memo Ex.PW8/E. Rough site plan Ex.PW12/G of room No.1 of Sangam Hotel, Bhiwani was prepared, where accused Ajay had committed rape upon her. After that, another rough site plan Ex.PW12/H of last room of house of Kamla Devi was prepared where accused Arjun and Amit had committed rape upon her. Thereafter, other rough site plan Ex.PW12/J of secluded place on Bhiwani-Loharu Road near Devsar was prepared where accused Rajat had committed rape upon her. On the same day, i.e., on 21.11.2018, accused Ajay was arrested. Disclosure statement Ex.PW12/K was suffered by him regarding his involvement in the commission of crime. Thereafter, pursuant to disclosure statement of the accused demarcation Ex.PW12/L (place of rape of the prosecutrix) and Ex.PW12/M (place of droping of prosecutrix at Dadri gate) were prepared, on pointing out by the accused Ajay. On the same day, i.e. on 21.11.2018, accused Arjun was arrested. Disclosure statement Ex.PW12/N was suffered by him regarding his involvement in the commission of crime. Thereafter, pursuant to disclosure statement of the accused, memo of demarcation Ex.PW12/P (place of rape of the prosecutrix) was prepared, on pointing out by accused Arjun. On that very day, accused Arjun and Ajay were got medico-legally examined at General Hospital, Bhiwani. Three-Three sealed parcels of underwear, two cotton wool swabs, blood samples and pubic hair along with forwarding letter and sample seal, handed over by the Medical Officer after examination, were taken into possession vide memo Ex.PW12/Q and Ex.PW12/R respectively. On 22.11.2018, pursuant to disclosure statement of the accused Arjun, memo of demarcation Ex.PW12/S (place of Krishna Colony, Bhiwani) and Ex.PW12/T (from where he took prosecutrix on motorcycle) were prepared, on pointing out by accused Arjun. On 23.11.2018, juvenile in conflict with law “A” was arrested. Disclosure statement Ex.PW12/U was suffered by him regarding his involvement in the commission of crime. In pursuance of statement, motorcycle bearing registration No.HR86-4237, which was used in the crime, was recovered from the house of his aunt and was taken in police possession vide recovery memo Ex.PW12/V and rough site plan Ex.PW12/W of place of recovery of motorcycle was prepared. Thereafter, pursuant to disclosure statement of the juvenile in conflict with law “A” , memo of demarcation Ex.PW12/X (place of rape) and Ex.PW12/Y (place of occurrence where he took prosecutrix on motorcycle) were prepared. On that day, accused Saurabh @ Jony was also arrested. Disclosure statement Ex.PW12/Z was suffered by him regarding his involvement in the commission of crime. Thereafter, pursuant to disclosure statement of the accused, memo of demarcation Ex.PW12/AA was prepared, on pointing out by accused Saurabh @ Jony. On that very day, juvenile in conflict with law “A” and accused Saurabh @ Jony were got medico-legally examined at General Hospital, Bhiwani. Four-Four sealed parcels of underwear, one cotton wool wet swab, one cotton wool dry swab blood, samples and pubic hair along with forwarding letter and sample seal, handed over by the Medical Officer after examination, were taken into possession vide memo Ex.PW12/AB and Ex.PW12/AC respectively. As per investigation as well as call details and mobile locations, Rajat, Parshant, Himanshu, Sunny, Bobby @ Amarjeet were found innocent and Section 195A IPC was deleted. On 29.11.2018, the sealed parcels of case property pertaining to the prosecutrix and accused persons Ajay, Arjun and Saurabh as well as juvenile in conflict with law “A” vide RC No. 1252 were sent to Regional Forensic Science Laboratory, Sunaria, Rohtak through Umesh, Constable for chemical analyis. Statements of the witnesses under Section 161 Cr.P.C were recorded. After the completion of investigation, final report under Section 173 Cr.P.C was prepared against the accused persons, namely, Ajay, Arjun and Saurabh and was presented in the court, for trial.

After finding a prima facie case against the accused, they were charge-sheeted for the offences punishable under Sections 365, 376, 342, 376(d) IPC and 506 IPC, to which they pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined PW1 Dharmender, Draftsman, PW2 Dr. Saurabh, Medical Officer, Primary Health Center, Mokhra, PW3 Dr. Manjit, Medical Officer, District Jail, Bhiwani, PW4 ASI Satish, PW5 EHC Krishan Kumar, PW6 Constable Umesh Kumar, PW7 Kamla Devi, PW8 Raj Kumar, Authorized Manager of Sangam Guesh House, Opposite New Bus Stand, Bhiwani, PW9 Prosecutrix 'D', PW10 Dr. Monika, Medical Officer, General Hospital, Bhiwani, PW11 Prosecutrix's father/ complainant and PW12 L/ ASI Basanti.

Statements of accused under Section 313 Cr.P.C. were recorded in which all the incriminating evidence was put to them, which they denied and pleaded innocence and false implication. However, no defence evidence was led by the accused.

After considering the evidence on record, learned trial Court found the same to be woefully insufficient to convict the accused who were accordingly acquitted of the offences for which they had been charge-sheeted, vide impugned judgment dated 05.02.2020.

Aggrieved of the said decision, present appeal has been filed by the appellants challenging acquittal of the accused/ respondents No.2 to 4.

Learned counsel for the appellant vehemently contended that the prosecutrix while appearing as PW9 and complainant while appearing as PW11 have fully supported the prosecution version. Even as per FSL report dated 30.11.2018, human semen was detected on the clothes of the prosecutrix as well as the accused persons. The present FIR was got registered by father of the prosecutrix, when he found his daughter missing on 14.11.2018 without any delay. The prosecutrix was also medico legally examined without any delay. There was enough evidence on record to prove that daughter of appellant No.1 had been victimized by respondents No.2 to

The trial Court wrongly gave weightage to the minor discrepancies existing in the statement of the prosecution witnesses and ignored the testimony of the prosecutrix, her father and other witnesses, who have fully supported the prosecution version. The trial Court failed to appreciate that it is not the law that version of the prosecutrix is to be corroborated in material particular by independent evidence on record. If the Court is satisfied that the evidence of the prosecutrix is free from blemish and is implicitly reliable, then even on the sole testimony of the prosecutrix, the conviction can be recorded. The learned Principal Magistrate of Juvenile Justice Board, Bhiwani, on the same set of allegations and evidence convicted accused juvenile 'A' vide judgment dated 17.03.2021 and respondents No.2 to 4 also deserve to be convicted to impart justice. He urged that accused/ respondents No.2 to 4 cannot take any benefit of the act of the prosecutrix, even if she had tried to involve Rajat falsely at any point of time. Even if a lady is of easy virtue and habitual of sexual intercourse, then also she has a right to refuse for sexual intercourse with any person. It has been ignored that she may be a willing partner in sexual intercourse with one accused but she may not be a willing partner in such intercourse with others. There was no previous enmity of the prosecutrix 'D' or the complainant with the accused persons, so as to falsely involve them. While referring to Section 114 A of Indian Evidence Act, he contended that when stand of prosecutrix is that she did not give consent, then the Court shall presume that she did not give consent. He prayed that this appeal be accepted, judgment dated 05.02.2020 be set aside and accused be convicted for the offences as charged with and be punished accordingly.

After having heard learned counsel for the appellants at length and having perused the impugned judgment as well as other relevant record, we are of the considered opinion that prosecution in the instant matter was unable to prove its case against the accused beyond reasonable doubt.

This is not in dispute that there was physical relationship between the prosecutrix and accused persons. In view of presumption under Section 114-A of Indian Evidence Act, it was to be proved by the accused that, if there were any physical relations between the prosecutrix and accused then the same were with consent of prosecutrix and were not against her consent and her wish.

The instant case mainly hinges on the statement of the prosecutrix. It is trite law that accused can be convicted even on the sole testimony of the prosecutrix, if it is consistent, reliable and dehors concoction.

It has been held by Hon'ble the Supreme Court in Rai Sandeep alias Deepu Vs. State of NCT of Delhi (2012) 8 SCC 21 as under:

“15. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and every other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

Now adverting to the present case, from the evidence on record it transpires that the alleged occurrence had not taken in the alleged manner as deposed by the prosecutrix while appearing as PW9 and her father as PW11. Rather it is proved from the evidence on record that the prosecutrix as per her habit had voluntarily left her house on 12.11.2018 and then returned to her house on 18.11.2018. In between, on 14.11.2018, PW11 the father of the prosecutrix had lodged the complaint Ex.PW4/A with the police regarding missing of the prosecutrix from her house. As per the version of the prosecutrix and her father she had returned home on

11.2018, but she was produced before the police only on 20.11.2018. This unexplained delay strengthens the defence version that the prosecutrix and her family members concocted the version to falsely implicate the accused and only then the prosecutrix was produced before the police and also got recorded her statement under Section 164 Cr.P.C.

The prosecutrix stepped into the witness box as PW9. Learned trial Court has rightly observed that though she tried to depose in terms of her version as given in statement under section 164 Cr.P.C. Ex.PW9/A, but despite being a mature and experienced lady, who was well aware of the Court proceedings, she could not withstand the test of cross-examination. She again tried to involve a person, namely, Rajat in this case also, while stating that she came to know accused Ajay through Rajat. While appearing as PW9, the prosecutrix admitted this fact that she had lodged 3-4 cases against Rajat. She further stated that she had accompanied accused Ajay from her college voluntarily and he had assured her that he would arrange her meeting with Rajat, who would apologize to her and would never harass her again. However, she admitted that on that day, it was holiday in the college. It has not been explained that then for what purpose, she had gone to college on that day.

As per the prosecutrix, she was kept confined by the accused throughout the day. As per the hotel register Ex.PW8/D, she entered the hotel at 10.48 A.M. and left at 12.04 P.M. and as such she remained with accused Ajay for one hour and sixteen minutes in said hotel. She further stated that she had raised alarm in the hotel but nobody was attracted. She admitted that she was having a mobile phone at that time, but she did not call any person. She further stated that accused Ajay had snatched her mobile phone but at the same time admitted the fact that he had returned her mobile phone at Dadri Gate, Bhiwani. Even if, it is presumed to be true that accused Ajay was having gun with him and had threatened her, but it has not been explained that when she was alone, even then why she did not opt to inform anybody, despite the fact that the presence of police around that place had been admitted by her. She even tried not to disclose her mobile phone number as well as the mobile numbers of her family, despite putting those numbers to her specifically. She stated that she was alone at Dadri gate for about ten minutes and thereafter, Rajat had arrived there, meaning thereby she was waiting for Rajat and otherwise it was but natural that she would have rushed her to house straightway after having escaped from the clutches of accused Ajay. Again she admitted that she accompanied Rajat on his motorcycle voluntarily, who left her at a place, from where she could have reached at her house in 15 minutes. As per her version at that place accused Arjun and juvenile in conflict with law had arrived and had stopped there voluntarily. Trial Court has rightly observed that this version of the prosecutrix regarding taking her on their motorcycle and not meeting any other person or vehicle on the way for about fifteen minutes, is quite improbable. It also seems improbable that in the next morning at about 5.30/6.00 A.M. when they had taken her to Bank colony, then also no person had met them on the way. Though, she admitted that there are police posts situated on that way, but she did not inform the police. She stated that she remained in the custody of these two persons for 4-5 days and she was not left alone and she never tried to escape from that place. On 18.11.2018, she walked on foot for 25 minutes to reach her house. She did not disclose anything to the police, despite though admittedly she aware of women police helpline number. She admitted that she had left her house 3-4 times during the year 2018, without disclosing to her parents. It strengthens the defence version that the prosecutrix was in the habit of the same.

Version of the prosecutrix is also not corroborated by the medical evidence on record. She did not sustain any injury during the rape as alleged by her. She stated that when accused Arjun raped her in Bank colony then she sustained injury near her left eye. PW10 Dr. Monika, Medical Officer, General Hospital, Bhiwani, who had medico-legally examined the prosecutrix testified that the prosecutrix had mark of abrasion (2cm) at left forehead region near temporal area and an abrasion (0.5 cm) at left shoulder. There was no injury around her private parts. Trial Court has rightly observed that these abrasions might have been sustained by the prosecutrix when after her returning home on 18.11.2018 her parents might have given her beatings and there seems to be no occasion of sustaining such injuries during the course of resistance of rape.

Prosecutrix even could not exactly specify that against how many persons, she had levelled allegations of rape and stated that she had been raped by approximately 15-16 persons. She stated that she had made complaints against all her rapists, but she could not tell that her how many such complaints had been found to be false during the course of investigation and feigned ignorance regarding this fact. She stated that Rajat had committed rape upon her three times prior to 12.11.2018 but it has not been explained that why she did not make any complaint against him prior to 12.11.2018. Her this version does not seem to be probable that she came to know the names of four of her rapists, out of seven rapists, as they were calling each other by their names and the remaining three persons were not being called by their names.

Learned trial Court has rightly held that for raising a presumption under Section 114-A of Evidence Act, the version of the prosecutrix should be worthy of trust. PW10 Dr. Monika, Medical Officer, General Hospital, Bhiwani, stated that the prosecutrix had disclosed the history of the occurrences and she also disclosed to her that she took medicine for having menses just for one day to reduce the period of her menstrual cycle. She further stated that the separation of thighs of the prosecutrix was not painful and if the prosecutrix would have been raped repeatedly as alleged that too by so many persons, then question did not arise that she would not have sustained any injury in or around her private parts and even no tenderness was present.

Learned trial Court has further rightly observed that the version given by PW11 complainant also does not seem to be probable that when after returning of the prosecutrix to his house on 18.11.2018, he immediately informed the police, he was told that the police was busy due to visit of Prime Minister of India. It's hard to believe that when PW11 reported about the gang rape of his daughter then the police officials replied in said manner. Rather it seems that PW11 was trying to cover the gap of two days in reporting the matter to the police. It raises strong doubt that family of the prosecutrix made deliberations for two days and then the matter was reported to the police. PW11 also does not appear to be a truthful witness. He also tried to involve a person, namely, Rajat and stated that in the leaving of house by prosecutrix the involvement of Rajat was there in 99% cases. From his statement also, it is made out that the prosecutrix was in the habit of leaving her house and since 19.06.2017 had left her house for about 7-8 times. PW11 could not tell even approximately, that against how many persons the prosecutrix had levelled allegations of rape. He stated that he had heard that the prosecutrix had performed marriage and then stated that DSP had disclosed to him that the prosecutrix had married a boy, namely, Sunny and he could not say that whether he was minor or major. He also stated the he did not make any inquiry from any friend of the prosecutrix after she went missing. He also stated that after arrival of prosecutrix “D” at her house on 18.11.2018 in injured condition, he did not take her to the hospital. If she had come in the injured condition as stated by him then it is quite strange that she was not taken to the hospital. Trial Court has rightly observed that it strengthens the defence version that she was given beatings by her family when she came back to her house. He also deposed that he could not tell that how many cases filed by them with the police had been cancelled. It again strengthens the defence version that he and prosecutrix were in the habit of falsely implicating the people in such like cases.

PW12 L/ASI Basanti, who is the Investigating Officer in the present case deposed that when she asked about her photograph from her father, she was told that that he was not having any photograph of the prosecutrix. It is again improbable that the family was not having any photograph of the prosecutrix especially when admittedly she was in the habit of leaving her house. PW12 stated that at least eight complaints were moved about missing of prosecutrix by her parents and at least two of those cases were cancelled. She also categorically stated that whenever the parents of the prosecutrix used to make any complaint they used to involve Rajat in the same. She testified that in the CCTV footage of Sangam Hotel, the prosecutrix and accused Ajay were seen entering in the hotel, but the prosecutrix was not being taken there forcibly. She also stated that during her investigation, she had checked the CCTV footage of Adarsh College, Bhiwani, but in that footage neither the prosecutrix nor the accused were seen. Learned trial Court has rightly observed that it has rendered doubtful the very base of the prosecution case.

Thus, after analyzing the evidence on record, trial Court has rightly reached at the conclusion that the prosecutrix PW9 and her father PW11 are not truthful witnesses and present case is nothing but a bundle of lies. From the evidence on record, it appears that the prosecutrix had left her house voluntarily on 12.11.2018 and had returned back on 18.11.2018. If she had made sexual relations with any or all the accused persons, it was with her own free will and consent and cannot be termed as rape. From the evidence on record it can safely be concluded that prosecution has failed to prove its case against the accused beyond reasonable doubt. Evidence on record is indeed not sufficient to convict the accused of the offence as charged with and they have been rightly acquitted by learned trial Court by giving them the benefit of doubt.

It is well settled that judgment of acquittal should not be interfered with lightly. In the case of Sadhu Saran Singh Vs. State of U.P. and others, 2016 (2) RCR (Criminal) 319, the Hon'ble Supreme Court reiterated that generally an appeal against acquittal has always been altogether on a different pedestal from that of an appeal against the conviction. It was held that in an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the Appellate Court would interfere with the order of acquittal only when there was perversity of fact and law.

Learned counsel for the appellant was unable to point out any illegality, infirmity or perversity in the impugned decision dated 05.02.2020 which calls for interference.

In view of the above, the appeal being bereft of any merit is dismissed with impugned judgment dated 05.02.2020 passed by learned trial Court being upheld.

Pending applications, if any, also stand disposed of.