Komal vs State of Haryana and Another

Hemant Gupta, J.—The appellant-prosecutrix is in appeal aggrieved against the judgment dated 06.02.2013 rendered by the learned Additional Sessions Judge, Panipat acquitting respondent No. 2 - Robin @ Randeep of the charges for the offences punishable under Sections 366A & 376 IPC. The appellant moved a complaint on 12.12.2010 to the effect that her mother left her (prosecutrix) with her brother, as she had gone to attend marriage. The leg of the prosecutrix had been operated upon due to which her leg was aching. On 11.12.2010 at about 9.00 PM, she went to Sai Medical Store to purchase medicines, where one boy i.e. respondent No. 2 was present, who asked her to get her checked through lady Doctor, who was present at his home. After reaching home, respondent No. 2 told her that the lady Doctor was present in the room on the first floor. When she went on the first floor, respondent No. 2 followed her and made her to fall on the bed. Thereafter, respondent No. 2 committed rape with her forcibly. She could not rise due to pain in her leg and that when she shouted; respondent No. 2 left her and fled away. She disclosed the incident to her cousin, who telephonically informed and called her mother. She claims her date of birth as 14.08.1993. On the basis of such complaint, FIR was lodged at Police Station City, Panipat.

The prosecutrix was medico-legally examined at General Hospital, Panipat on 12.12.2010. Her statement u/s 164 Cr.P.C. was recorded by the Judicial Magistrate 1st Class, Panipat on the same day. The parcels handed over by the Doctor were deposited in the Forensic Science Laboratory, Madhuban for examination, the report of which was received on 27.01.2011. Respondent No. 2 was arrested on 15.06.2011 and got medico-legally examined at General Hospital, Panipat. After completing the other formalities, report u/s 173 Cr.P.C. was prepared and presented before the Court.

To prove the charges against respondent No. 2, the prosecution examined as many as 14 witnesses. While appearing in the witness box as PW-2, the prosecutrix reiterated her version and stated that after the occurrence, she returned to the house of her maternal uncle and narrated the story to her bhabhi (wife of maternal uncle''s son) as well as cousin, who telephonically informed her mother. It is thereafter her mother returned back and they submitted application Ex. P3 to the Police at Sukhdev Nagar Chowk.

The mother of the prosecutrix namely Meenakshi @ Chanchal appeared as PW-4 and deposed that she has three children. The prosecutrix was her younger daughter, aged 17 years and that she has gone to attend the marriage of her relative at Kalandar Chowk, Panipat while leaving the prosecutrix with her nephew namely Arjun @ Amar at Green Park, Panipat. She further deposed that the prosecutrix has been operated upon in Gandhi Hospital, Panipat as rods were removed from her legs 15-20 days prior to the occurrence. She deposed that due to pain in leg, prosecutrix went to take medicine along with daughter of Arjun @ Amar, aged about 6-7 years.

In the shape of medical witness, the prosecution examined PW-3 Dr. Naveen, Medical Officer, who medico-legally examined the prosecutrix. She proved handing over of sealed parcels containing swab, slides, jeans and underwear as Exs. P10, P11, P12 & P13 respectively.

After concluding the prosecution evidence, respondent No. 2 was confronted with the incriminating circumstances appearing against him in the prosecution evidence while recording his statement u/s 313 Cr.P.C. He denied the prosecution allegations and pleaded false implication. In his defence, respondent No. 2 examined DW-1 Kulwant Sharma and DW-2 Roshni, his mother.

After considering the entire evidence, the learned trial Court found that as per the defence adduced by respondent No. 2, case under the Immoral Trafficking Act was registered against the mother of the prosecutrix. The trial Court also found that the present case is result of inimical attitude of the Police against respondent No. 2 on account of criminal case registered against the sons of some of the Police Officials for an offence u/s 307 IPC on the basis of complaint of the accused. The learned trial Court also found that as per the ossification test Ex. P19, the age of the prosecutrix was opined to be between 17 to 19 years and, thus, held that benefit must go to the accused, as there is no authentic evidence regarding the age of the prosecutrix such as birth certificate and the school leaving certificate. The Court also found that the prosecutrix has not explained as to where the child aged about six/seven years, who accompanied her to the medicine shop, remained during the alleged occurrence. The Court also found that as per the prosecutrix, the accused was sitting alone, then who disclosed the name of the accused to her. The Court also found that the accused was not in the shop, as he was being treated for head injury caused by Pawan son of ASI Balwan as deposed by DW2.

The story propounded by the prosecutrix was found to be improbable, as the prosecutrix is said to have handed over prescription to the boy and on his mere asking, she accompanied him to house. It is not explained that if the prosecutrix was already having a prescription, then why did she feel the need for getting checked up from a lady Doctor in some unknown place and accompanied a person, who was also unknown to her. The prosecution has not examined the Bhabhi or the brother to whom the prosecutrix has disclosed the alleged occurrence in the first instance. The trial Court found that the mother of the prosecutrix has made improvements, when she appeared in the witness-box. The Court found that in the absence of any external injury; absence of any sign of struggle or resistance; absence of semen on her clothes, which were taken into possession on the very next day are the circumstances to doubt the prosecution story.

We have heard learned counsel for the appellant at length and find that the findings recorded by the learned trial Court extending benefit of doubt to respondent No. 2, are the possible findings on the basis of evidence led by the parties. The prosecutrix has purportedly got treatment of her leg injury from Panipat, when iron rods were removed 15 to 20 days prior to the occurrence. If she was under treatment from Prem Hospital, Panipat, then it is not possible to imagine that the prosecutrix would go to an unknown person. The absence of any injury, struggle mark or semen on her clothes soon after the occurrence negates the prosecution version. Still further, the prosecutrix has purportedly gone to an unknown medical store and accompanied an unknown person to his house and then to the first floor even when she had prescription for medicine with her. The entire story is improbable, when mother of respondent No. 2 appeared as DW-2 and deposed that their house is situated in New Ramesh Nagar, Devi Mandir Road, Panipat and that the accused was not even at the shop, as he was undergoing rest consequent to head injury, which was the basis of FIR for an offence u/s 307 IPC against the sons of police officials. The entire prosecution story is completely unworthy and not believable. The benefit of doubt has been rightly granted by the learned trial Court.

In view of the above, we find that the view taken by the learned trial Court does not suffer from any illegality or irregularity or perverse. The findings recorded by the learned trial Court are based on correct appreciation of evidence and it could not be said that any evidence is misread or not taken into consideration. Therefore, we do not find any reason to take a different view than what has been taken by the learned trial Court. Dismissed.