State of Haryana v. Chand Singh

In the High Court of Punjab and Haryana at Chandigarh Reserved on: 30.7.2024 Date of Decision: 7.8.2024 State of Haryana ......Appellant Versus Chand Singh ......Respondent CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR HON'BLE MR. JUSTICE DEEPAK MANCHANDA

Present: Mr. Pardeep Prakash Chahar, Sr. DAG, Haryana. Mr. Akashdeep Singh, Advocate for the respondent. **** SURESHWAR THAKUR

, J.

¶1The instant appeal is directed against the verdict drawn on

30.4.2002, upon Sessions Case No. 17 of 1997/2002, by the learned Additional Sessions Judge, Rohtak, wherethrough in respect of charges drawn against the accused-respondent qua offences punishable under Sections 365, 366, and 376(2)(g), 382, 506 read with Section 34 IPC, he made a verdict of acquittal qua the accused-respondent. Factual Background

¶2The genesis of the prosecution case, becomes embodied in the appeal FIR, to which Ex. PB is assigned. As per the prosecution case, Santosh, complainant is a permanent resident of village Rawatpura District Mahoba (U.P.). At the time of occurrence, he was residing near Delhi Bye-pass Rohtak. He had been living there with his wife Meera, his brother-in-law Sonu and his wife Rekha. He was doing labour work. On 3.6.1997, they had returned home at 6.00 P.M. after working in Sector-14 Rohtak. His wife Meera and wife of his brother-in-law namely, Rekha had gone to attend the call of nature. At about 10.00/10.15 p.m. they were standing on Delhi Bye-pass Rohtak Road. They were there waiting for opportunity to cross the road. In the meanwhile, a large Maruti car came from the side of Sheela Bye-pass Rohtak. The occupants of the car stopped the same by the side of Meera. They pushed aside Rekha and pulled Meera inside the car. They escaped towards Delhi. When Rekha raised noise, Santosh complainant and his brother-in-law Sonu as also their neighbours reached the spot. When they reached the spot, the car had already gone to a long distance. He could not notice the number of the car on account of darkness. He was going to Police Post Sector-1, Rohtak to make a report and came across SI Ram Parkash SI in Sector-1, while he was on patrolling duty. SI Ram Parkash, recorded the statement of Santosh. He made his endorsement on the same and had sent the same to Police Station Civil Lines, Rohtak, where ASI Balbir Singh recorded the formal FIR. On 4.6.1997 at about 1.00 P.M. Santosh again met Ram Parkash Sl. This time, he met SI Ram Parkash at Delhi Bye-pass. The complainant told him that his wife Meera had returned home. He also told the police officials that she had no blouse on her person, when she returned home. SI Ram Parkash went with Santosh complainant to his house and recorded the statement of Meera. He recorded the statements of Sonu and Rekha also. Meera disclosed the following incident:- "She was doing labour work. She was living in the dairy of Jai Narain a resident of village Gandhra in Sector-14 Rohtak with her husband Santosh, her brother Sonu and her bhabhi Rekha. On 3.6.1997 at about 10.00/10.30 P.M. she had gone to the other side of the road with her bhabhi Rekha to attend the call of nature. On her way back home, she was waiting for the road to be cleared so that she would cross the same. In the meanwhile, a large white Maruti car came from the side of Sheela Bye-pass Rohtak and suddenly stopped by her side. A boy who was having a beard sitting in the car had pushed Rekha aside. He caught Meera in his arms and had pulled her inside the car. When she and her bhabhi raised noise, the car was put in motion. An occupant of the car had shown her a pistol and had threatened her of being shot dead if she raised noise. Out of fear, she kept quiet. She was made to sit on the back seat of the car. She had one boy each on her both sides. They started towards Delhi. One of the occupants told the driver that the car has to be taken to Ritoli via Kharawar, Karor and Dighal. They were four persons in the car. When the car crossed village Kharawar and the railway level crossing was left back, one of the boys committed rape upon her. When she refused to oblige them. she was threatened of being killed. All the four boys committed rape upon her and while all this was done, the car remained in motion. The car was taken to a rivulet in the area of village Ritoli. The car was stopped there. All the four boys took bath there. The prosecutrix was also made to take bath there. They again committed rape upon her. They were addressing each other by their names, while asserting for their turn. She was thereafter left at a place near village Dighal. It was 1.00 A.M. at that time. While leaving her there, the four boys relieved her of an amount of Rs. 5000/-, a silver chain and a nose pin of gold. Her blouse also remained on the back seat of the car. She passed that night in the growth of kiker trees and in the morning, she came on foot to Dighal, wherefrom she took a bus for bus stand Rohtak. She again took a bus for Sheela Bye-pass and from there, she went home on foot. She claimed that she would be able to identify those boys." Investigation proceedings

¶3During the course of investigations, SI Ram Parkash prepared a site plan of the place wherefrom she was kidnapped. She was sent for medico-legal examination. After medico-legal examination, the doctor gave a sealed parcel of the swab. Meera then led SI Ram Parkash to the place, where she was raped. That place was inspected by him and its rough site plan was prepared. On 5.6.1997, Meera was taken to State Crime Record Bureau, Madhuban. She told the physical features of the rapists and the expert there prepared their sketches. Satender and Rajbir were arrested on

9.6.1997, while Chand Singh and Ashok were arrested on 11.6.1997. After conclusion of investigations, the investigating officer concerned, proceeded to institute a report under Section 173 of the Cr.P.C., against accused Satender Singh, Rajbir, Chand Singh, Ashoki @ Sukhinder before the learned committal Court concerned. Committal Proceedings

¶4Since the offences under Section 366, 376 and 397 of the IPC were exclusively triable by the Court of Session, thus, the learned committal Court concerned, through a committal order made on 29.9.1997, hence proceeded to commit the accused to face trial before the Court of Session. Trial Proceedings

¶5The learned trial Judge concerned, after receiving the case for trial, after its becoming committed to her, made an objective analysis of the incriminatory material, adduced before her. Resultantly, she proceeded to draw charges against all the four accused for the offences punishable under Sections 365, 366, 376(2)(g), 382, 506 read with Section 34 of the IPC. The afore drawn charges were put to the accused, to which they pleaded not guilty, and, claimed trial.

¶6During the course of trial, accused Ashoki @ Sukhinder and accused Chand Singh (respondent herein) absented and they were declared proclaimed offenders, respectively on 26.2.1999 and on 9.2.2000.

¶7In proof of its case, the prosecution examined 17 witnesses. However, it is pertinent to mention here that out of total 17 witnesses, 14 prosecution witnesses were examined in the presence of both the absentee accused. Thereafter, when accused-appellant Chand Singh surrendered on

16.2.2002, the further prosecution witnesses, excepting the already examined 14 prosecution witnesses (supra), thus became examined. Thereafter the learned Public Prosecutor concerned, closed the prosecution evidence.

¶8After the closure of prosecution evidence, the learned trial Judge concerned, drew proceedings, under Section 313 of the Cr.P.C., but thereins, the accused-appellant pleaded innocence, and, claimed false implication. Though, the accused chose to adduce defence evidence, however, he did not lead any witness into the witness box. Submissions of the learned State counsel

¶9The learned State counsel has made vehement submissions before this Court, that the reasons assigned by the learned trial Judge concerned, for making an order of acquittal, upon the accused are extremely frail, besides are not based upon a sound appreciation of the evidence on record. Therefore, he contends, that the impugned verdict of acquittal be quashed, and, set aside. Submissions of the learned counsel for the respondent/accused

¶10On the other hand, the learned counsel for the accused-respondent, has made a vigorous address before this Court, that the impugned verdict of acquittal, as becomes drawn by the learned trial Judge concerned, is meritworthy, and, does become planked, upon a meritworthy appraisal of evidence germane to the charge, as was existing before the learned trial Judge

¶11Before proceeding to delve upon, and, to also make adjudication, upon the contentions (supra), as became addressed before this Court by the learned State counsel, by the learned counsel for the accused, it is deemed necessary to extract the relevant paragraphs borne in the impugned verdict, whereins, becomes enclosed the reasons for recording the findings of acquittal. The said paragraphs are reproduced hereinafter. "19. Out of a number of improvements, the prosecutrix made appearing as PW-16, on 29.4.2002, over her previous statement dated 23.10.2000, most important is the improvement she tried to make regarding the availability of light at the time of occurrence. She denied having stated in the court in her earlier statement made in the court that she told the police that she could not identify the culprits due to darkness. She was confronted with that portion of her statement marked A to A in Ex.DA and she had no explanation for the said statement. In the absence of any explanation on the part of the witness, it cannot be believed that there was light and the prosecutrix could identify or recognize the culprits. Assuming that she did not have an opportunity to identify the assailants, her identification of accused Chand Singh as one of the culprits in the court is a piece of evidence that has practically no value.

¶20Although, it is not adverted to either by the prosecution or by defence during the course of arguments, yet there is a statement on the part of Meera that the accused were addressing each other by their names claiming their turn for sex. Her statement is that the person who wanted to have his turn had addressed the person having sex with her by his name and would tell him that it was his turn. It is very difficult to believe that the accused would address each other by their names so as to make the prosecutrix aware of their names. This is nothing but a fabrication made by the prosecution. Even if it is believed for a moment that the accused addressed each other by their names, the other particulars of the culprits which could rule out the possibility that the persons with those names were some persons other than the accused have not come in her statement. In other words, I may say that the prosecutrix only tells the names of the culprits and does not tell the names of their fathers and those of their villages and from the statement of the prosecutrix, it cannot held established that the boy addressed as Chand was the accused before me. These circumstances show that evidence has not come on the record establish the identity of the accused as the person who committed rape upon Meera in the night of 3.6.97.

¶21The prosecutrix has claimed that she had Rs.5000/- in cash and the accused while leaving her near village Dighal relieved her of this amount. She has also claimed that her nose pin of gold and a silver chain were also snatched by them. In her cross-examination, she has stated that in the amount of Rs.5000/- there were one or two currency notes of the denomination of Rs.500/- while the others were of the denomination of Rs.100/- and Rs.50/-. The currency notes of this denomination to make a sum of Rs.5000/- would make a hefty bundle and if they were put in a purse, they would make it swell. There must be some reason with a woman to carry this amount stuck up in her blouse while going to attend the call of nature. It has come in the evidence that her husband Santosh and her brother Sonu were there at their place of residence and if they were there, Meera prosecutrix cannot be believed to have carried this amount of Rs.5000/- with her while going to attend the call of nature at an odd houri.е. 10.00 p.m.

¶22The prosecutrix was not found to have even a single injury on her person. It is not a case where some persons held her on some surface while one committed rape upon her. In that position, it would not have been possible even for a married woman of strong built to resist the rape. However, she has stated that one person used to commit rape upon her at the back seat and the other three used to be on front seat. She was raped inside the running car and if she was not a consenting party, she would have suffered injuries on her person which are missing in this case.

¶23The story of the prosecutrix leaving behind her untorn blouse the car is also significant. People committing rape in running car could be believed to have taken off the garments on her private parts. They cannot be supposed to have unbuttoned her blouse and to have neatly removed the same from the person of the prosecutrix. Even if it would have been removed, there was possibility of its being torn away. The fact that blouse in one piece remained back in the car would also indicate consent on the part of the prosecutrix in the entire episode."

¶24Taking into consideration the circumstances, as discussed above. the prosecution has miserably failed to establish the identity of the accused as one of the culprits. Even if it is assumed that he was one of the person who had sexual intercourse with the prosecutrix, the prosecutrix is shown to be the consenting party." Reasons for dismissing the instant appeal

¶12For the reasons to be assigned hereinafter the contentions (supra), as become raised before this Court, by the learned State counsel rather are unworthy of acceptance, and, therebys they are rejected. Consequently, finding no merit in the instant appeal, the same is hereby dismissed, and, the verdict of acquittal, as made by the learned trial Court, is maintained, and, affirmed.

¶13A reading of the above extracted reasons by the learned trial Court concerned, for thus making a verdict of acquittal, upon the accused-respondent, thus also appeal to the judicial conscience of this Court.

¶14Initially, the credibility of the deposition of the victim-prosecutrix is to be adjudged, on the touchstone of hers, making an unblemished account in respect of the crime event, inasmuch as, in her rendered testification rather hers omitting to make grave improvements or embellishments vis-a-vis with her previously recorded statement in writing.

¶15In the above regard, it is apposite to refer to the most dire improvement or embellishment which became made by the prosecutrix, thus during the course of her testifying in Court on 29.4.2002, vis-a-vis, her prior thereto made testification before the learned trial Judge concerned, on

23.10.2000. The said gross improvement or embellishment as made by the prosecutrix, in her subsequent testification vis-a-vis her prior thereto made testification, becomes comprised in the factum, that though she in her prior testification rendered on 23.10.2000, thus stated qua the non availability of light at the crime site wherebys she became disabled to identify the accused. Though, she then became confronted with her previously made statement in writing, whereins, the said fact did not occur at all, besides when she was unable to render any valid explication in respect of the said omission. Therefore, the effect of the above, is that, with the prosecutrix in her initially made testification on 23.10.2000, intimating the police qua her inability to identify the accused. Contrarily, when she subsequently testified, that there was availability of light at the crime site, and, was thus enable to identify the accused, therebys as stated (supra), she subsequently embellished and improved from her previous statement in writing, besides when she was unable to purvey any explication in respect of the said inter se improvement, and, embellishment. Resultantly, any rife contra-distinct testifications, as made by the prosecutrix, thus are to be construed to be rendering her testification to be unamenable for any assignment of credence thereto. In sequel, therebys the prosecution version, as became espoused by the prosecutrix, that she had identified the assailants, thus comes under a grave shadow of doubt. In sequitur, the benefit thereof is to be assigned to the accused.

¶16Though, the victim attempted to make an endeavour to incriminate the accused through hers yet stating that the accused were addressing each other by their names but even the said made testification, for the reasons (supra) rather appears to be a gross detraction from her initially made testification before the learned trial Judge on 23.10.2000, especially when she had revealed that on account of darkness prevailing at the crime site, she was unable to identify the accused, thus despite no valid explanation becoming rendered by her qua hers omitting to even state that fact in her previously made statement to the police officer concerned. Resultantly, therebys the apposite vacillations and ditherings (supra) as made by the prosecutrix, thus at various stages, does therebys render open an inference, that as such, her testification, rather is not confidence inspiring.

¶17Be that as it may, even if there was complete failure on the part of the prosecutrix to identify the accused, and/or assuming that the said fact became attempted to overcome by her through hers stating that the accused were calling out their respective names, but yet she was also required to be revealing the key characteristic features of the accused, so that therebys a valid test identification parade became conducted, so that therebys the identification as made by her of the accused in Court, becomes a worthy piece of evidence.

¶18However, even though the prosecutrix appears to narrate to the investigating officer concerned, the key characteristic features of the accused, wherebys the investigating officer concerned, as revealed by Ex. PO, was led to move an application for conducting a valid test identification parade, so that thereins the prosecutrix-victim, thus is able to identify the accused. However, the accused refused to participate in the said test identification parade on the ground, that the said would be a mere sham or a charade, thus on the ground, that their faces have already been shown to the witnesses, and/or to the victim-prosecutrix.

¶19Contrarily, since the said refusals were made before the Chief Judicial Magistrate, Rohtak, and, which resulted in an order dated 10.6.1997 becoming passed by the Chief Judicial Magistrate, Rohtak. Resultantly, when the said order, which occurs at page 147 of the paper book, thus has not been shown to be lacking in any legal vitality, therebys the prosecution is deemed to have accepted the fact, that the conducting of the test identification parade, whereins, the victim may have become enabled to identify the accused, rather would be a mere sham or a charade, as the faces of the accused were also shown to the victim-prosecutrix.

¶20Therefore, therebys as stated (supra), there would be but a complete failure on the part of the prosecutrix to identify the accused in the valid test identification parade, thus therebys she became ill enabled to even well identify the accused thus in Court, nor the prosecution can be said to have established to the hilt the charges drawn against the accused.

¶21Be that as it may, even if assumingly, the accused had allegedly committed the charged offence, but yet on account of the hereinafter extracted facts, which exist on record, the prosecutrix-victim was a consenting partner to the sexual intercourse(s), which allegedly became perpetrated upon her at the instance of the accused.

(a) Lack of injuries on the person of the prosecutrix, thus personificatory qua her resisting the perpetration of sexual assault upon her person, thus at the instance of the accused.

(b) The existence of an untorn blouse of the prosecutrix, in the crime car, also being magnificatory that, as such, the prosecutrix was a consensual partner to hers allegedly becoming subjected to sexual intercourse(s) at the instance of the accused, especially if she was a non-consensual partner, therebys her clothes would have been torn, rather than her blouse being found in an untorn condition in the crime car. Final order

¶22The result of the above discussion, is that, this Court does not find any merit in the appeal, and, is constrained to dismiss it. Consequently, the impugned verdict of acquittal, as made by the learned trial Court concerned, is maintained, and, affirmed. The case property, if any, be dealt with, in accordance with law, but after the expiry of the period of limitation for the filing of an appeal.

¶23Records be sent down forthwith. (SURESHWAR THAKUR)

JUDGE (DEEPAK MANCHANDA) JUDGE August 7th, 2024

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