Parveen @ Babli vs State of Haryana

A.N. Jindal, J.—Out of four accused, Prem and Anil were finally acquitted, accused Suresh was acquitted at the stage of recording statement u/s 313 Cr.P.C. whereas accused Parveen was convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/- for the offence punishable u/s 366 of the Indian Penal Code and rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2,000/- u/s 376 of the Indian Penal Code vide judgment dated 21/22.11.2003, passed by Additional Sessions Judge Jind.

On 09.09.2002, Sushila complainant lodged a report with ASI Krishan Kumar that her niece/prosecutrix (name not mentioned) aged about 15 years was enticed away by Prem, Parveen, and Anil @ Sheelu on the night of 06.09.2002 on some false promise. However, when she failed to search her, she lodged the report. On her aforesaid statement on 09.09.2002 at 7:00 p.m., FIR was registered regarding the abduction of prosecutrix. Then, on receipt of information that the accused were hiding with the prosecutrix in the vicinity of the village, raided the site and arrested Prem, Parveen and Anil @ Sheelu and got them medically examined. The accused Prem allegedly confessed before the police that the prosecutrix was ravished by him alongwith Parveen @ Babli, Anil @ Sheelu and Vinod and they had also sold her gold chain. One Suresh was also nominated as accused and he was arrested on 14.09.2002 whereas Vinod could not be arrested. The prosecutrix also made statement u/s 164 Cr.P.C. before the Chief Judicial Magistrate, Jind on 13.09.2002. After completion of investigation, the challan was presented in the Court.

The accused were charged for the offences u/s 363, 366 and 376(2)(g) of the Indian Penal Code to which they pleaded not guilty and claimed trial.

During the course of trial, the prosecution examined Dr. Atul Khera (PW1), SI/SHO RamKumar (PW2), MHC Om Parkash (PW3), Dr. Santosh Kumar Pashrija (PW4), Dr. Ashvani Kumar (PW5), Constable Vikram Singh (PW6), Kumari Maenka (PW7), Smt.Sushila (PW8), Sh.Harnam S.Thakur, Addl. Sessions Judge, Yamuna Nagar (PW9), ASI Krishan Kumar (PW10) and Nirmal Kaur, Computer Clerk (PW11).

When examined u/s 313 Cr.P.C., the accused Prem, Parveen and Anil denied all the incriminating circumstances appearing against them and pleaded their false implication in the case whereas finding no evidence available on record, the accused Suresh was acquitted of the charges framed against him.

In defence, they examined SureshKumar (DW1) and Dhajja Ram (DW2).

On scrutiny of the evidence, the trial Court while acquitting accused Prem and Anil, convicted the accused Parveen for the offences u/s 366 and 376 of the Indian Penal Code and sentenced him accordingly.

Arguments heard. Record perused. The facts, as set up by the prosecution are that the prosecutrix was missing from the intervening night of 06.09.2002 at 3:00 a.m. When she had come out of the house to urinate, the accused Parveen met her and took her to a room where three accused namely Prem, Sheela and Vinod were present. They had raped her simultaneously. The prosecutrix was recovered by the police on 09.09.2002 and the case was also registered on the same day. The story appears to be false at the face of it. The statement of prosecutrix (PW7) cannot be said to be trustworthy. She has given a unique statement by disclosing that when she came to urinate at 3:00 a.m. on 06.09.2002, the accused was standing there but it is not explained as to what was the reason for the accused to be present in those wee hours of the day and without his prior knowledge, the accused could not be expected to know about her coming out at such odd hours. No injury much less abrasion was found on her body or the private parts, though, she has stated that the accused raped her simultaneously and she continued objecting and resisting to their illegal acts. She has stated that all the accused had taken her to Chandigarh where she was raped and then she was taken to a place called Kullu, in the State of Himachal Pradesh, where she was sexually exploited by all of them for 3-4 days but she did not raise any hue cry during the period when she was taken in the buses or through other transport sources to different destinations. She admits that there is a urinal toilet inside their house apart from another toilet in the cattle shed but it is not explained why she went out of the house and did not go for urinating in the internal toilet. The pretext which could apparently be assumed unreasonable, unnatural and improbable, could not be taken as correct. Furthermore, she has stated that the accused took her to the room on the pretext that some employers would be available there. She did not apply her mind while accompanying the accused at those wee hours as to what sort of people she wanted to see which also reflects that she had previous friendship with the accused. The long stay of the prosecutrix with the accused Parveen also goes a long way to prove that she was a consenting party. The trial Court has also not believed the entire version of the prosecutrix. If the prosecutrix is false on material aspects then the Court should not have believed her on other aspects of the case, which appear to be apparently concocted and implausible. The trial Court has discarded the testimony of the prosecutrix regarding the presence of Prem and one Ashok (both accused in some other case) while observing that they had appeared before the Court on the day of alleged abduction i.e. on 06.09.2002. It has also been observed that there is a definite padding in the prosecution case and some evidence has been fabricated to implicate the accused Prem and Anil in this case for the reasons not far off to seek. As a matter of fact, the record reveals that the accused Prem and Ashok had moved an application before the Magistrate on 05.09.2002 apprehending their arrest in some excise case whereas the occurrence took place on 06.09.2002 which goes a long way to prove that actually the prosecutrix had gone with the accused earlier to 06.09.2002.

Now coming to the evidence with regard to date of birth of the prosecutrix, it is noticed that the trial Court wrongly placed reliance on the school record where her date of birth was recorded as 16.03.1987. This school record has been proved by Nirmal Kaur, Computer Clerk, CMO Office, Jind (PW11) but the relevant entry in the said record at serial No. 7 is neither signed nor thumb marked by her mother or father and it is also not accompanied by copy of the register of Chawkidar. She has also stated that the person informing about the date of birth is not mentioned in the register. She also admits that as per rules Column No. 3 of register should have been signed by the Registrar of Births and Deaths but the said entry is not signed by the then Registrar. The fabrication is again highlighted from her statement, the relevant extract of which is reproduced as under:

It is correct that entry No. 7 is at page 369 and pages from serial Nos. 363 to 367 and 370 to 375 are lying blank. This register is only stamped with round seal of P.S. Sadar, Jind but not signed by any SHO or person who had made entry there.

All this goes to show that the entry was not made regularly in the normal course in the register as earlier columns and subsequent columns of the entries at page No. 369 are blank. It is not explained at all as to why these columns were left blank. Thus, no reliance could be placed on such entry in the school register. Not only this, though, the father of the prosecutrix had died 16 years prior to the occurrence, yet the complainant Sushila has made statement by saying that she was married 11 years ago, if it is so then, how the prosecutrix could be 15 � years old. As such, the prosecution story as a whole appears to be false. No reliance could be placed either upon the prosecutrix or her mother regarding the rape, recovery of the prosecutrix as well as her age. The prosecutrix, being a consenting party, appears to have left the house in the wee hours of the day and enjoyed with the accused for more than three days. The evidence also reveals that she was certainly more than 16 years of age. The trial Court has not taken note of the aforesaid facts and circumstances and has not properly appreciated the evidence in the right perspective. As such, the interference at my end has become inevitable.

Resultantly, I accept this appeal, set aside the impugned judgment and acquit the accused-appellant Parveen from the charges framed against him and direct him to set at liberty. Fine if deposited may be refunded.

Copy of this judgment be sent to Chief Judicial Magistrate, Jind for compliance.