High Court Punjab-Haryana High Court

Sunil Alias Sonu vs State Of Haryana on 11 August, 2008

Punjab-Haryana High Court
Sunil Alias Sonu vs State Of Haryana on 11 August, 2008
Criminal Appeal No.1194-SB- of 2003                        -1-

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IN THE HIGH COURT OF PUNJAB AND HARYANA
              AT CHANDIGARH

                        Criminal Appeal No.1194-SB- of 2003
                        Date of decision : 11.8.2008

Sunil alias Sonu                              .....Appellant

                        Versus
State of Haryana                              ...Respondent

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CORAM : HON'BLE MR. JUSTICE S. D. ANAND

Present: Mr. Neeraj Khanna, Advocate as Amicus Curiae.

             Mr. S.S. Mor, Senior Deputy Advocate General,Haryana


S. D. ANAND, J.

The appellant was convicted by the learned Trial Court

for the offences under Sections 366/376/506 IPC. The learned Trial

court, however, exonerated the appellant of a charge under Section

363 IPC by recording a finding that “in this light of the above-

discussion, it has to be held that the prosecution has not been able

to bring sufficient positive evidence on the file to prove that the

prosecutrix was below 18 years of age at the time of occurrence in

question.”

2. The prosecution allegations were as under:-

3. The prosecutrix is an unmarried daughter of a working

couple. The first informant/complainant (PW-7) father of the

prosecutrix was a Railway employee and posted at Calcutta at the
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relevant point of time; while mother of the prosecutrix was in

employment in a Delhi Corporation. The couple had six children i.e.

two sons and four daughters. Two daughters and one son were

married; while others including the prosecutrix were unmarried and

used to stay at home. The first informant had come on home on

leave. On 18.11.2000 at about 5.00 P.M., he went out of the house

to see his working wife off. When he came home, he found the

prosecutrix missing from the house. He further found that the

appellant, who was residing in the same locality, was also missing

from his house. He entertained an apprehension that the appellant

had kidnapped his daughter. He further found that his daughter i.e.

prosecutrix had taken along cash amount of Rs.1250/- and indicated

gold ornaments (one necklace, two rings, one Tikka) and some silver

jewellary articles while leaving the house. The prosecutrix and the

appellant were apprehended by a police party on 18.12.2000, on the

basis of a secret information.

4. PW-1 Dr. Manju Lata had medico legally examined the

prosecutrix on 18.12.2000. She found that there were no injury

marks all over her body and her clothes were not torn from

anywhere. She further found that her hymen was ruptured and she

did not complain of pain during per-vaginal examination. No injury

was noticed on thigh, perineum, vulva, vagina and cervix. After

perusing the FSL report Ex. PC, Dr. Manju Lata opined that “sexual

intercourse with Pooja cannot be ruled out.” For determination of her

age, she recommended ossification test by an expert.
Criminal Appeal No.1194-SB- of 2003 -3-

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5. PW-2 Dr. D.S.Rana had medico legally examined the

appellant on 18.12.2000. He opined that the appellant was capable

of performing sexual intercourse.

6. PW-13 Dr. Jai Kishore conducted the radiological

examination of the prosecutrix on 14.3.2001 and opined that “the

age of pooja daughter of Om Parkash appears to be 17 to 19 years

with an error of six months on either side.”

7. PW-3 HC Ram Bhagat, PW-5 Constable Jai Chand

and PW-9 Constable Rajesh Kumar tendered their affidavits Ex. PF,

Ex. PH and Ex. PK respectively into evidence.

8. PW-4 SI Chhattar Singh had recorded formal FIR Ex.

PG/1 on receipt of statement Ex.PG of Om Parkash (PW-6) bearing

endorsement of ASI Chandergupt. He also handed over the special

report to Constable Om Parkash (PW-6) for being delivered to Illaqa

Magistrate and also Superintendent of Police and D.S.P., Jhajjar.

9. PW-78 Om Parkash is the father of the prosecutrix.

10. PW-8 Pooja is the prosecutrix herself.

11. PW-10 Inspector Ram Chander had filed the report

under Section 173 Cr.P.C. in this case.

12. PW-11 is C.B. Sheoran, the then Sub Divisional Judicial

Magistrate, Bahadurgarh, had recorded the statement (Ex. PJ) under

Section 164 Cr.P.C. of the prosecutrix.

13. PW-12 ASI Chandergupt had investigated this case.

14. Appellant raised a pure and simple plea of innocence.

15. No evidence was adduced in defence.

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16. It would be apparent from a perusal of the record that the

prosecution has not been able to prove that the prosecutrix was

below 18 years of age at the time of commission of the offence.

However, learned Trial Judge negatived the appellant’s plea (raised

in the course of cross-examination of PWs) that it was all

consensual affairs. Learned Trial Judge also declined to place

reliance upon the photographs, affidavit Ex. D1 and love letters Ex.

D2 to Ex. D8 by recording a finding that those (Ex.D1 and Ex.D2 to

Ex.D8) had been executed/written by the prosecutrix under threat

and pressure. It was observed in that context that prosecutrix had no

occasion to make an averment in affidavit Ex. D1 that her parents

were poor and not in a position to get her married by providing her

dowry. In recording that finding, sustenance was drawn from the fact

that first informant had made a categorical deposition at the trial that

his two daughters and one son were married.

17. I do not find myself in agreement with the line of

reasoning adopted by the learned Trial Judge.

18. Letters Ex. D2 to Ex. D8 are clearly indicative of extreme

love which the prosecutrix had in her mind for the appellant. These

letters were presented before the police by the appellant. The

affidavit (Ex. D1) had been attested by a Notary Public. It is in

evidence that the prosecutrix had been to the Court i.e. the seat of

Notary Public where this affidavit was attested. The mere fact that

the deponent of Ex. D1 (prosecutrix) made a factually incorrect

averment in the course of affidavit Ex.D1 would not prove that she
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had not sworn that affidavit. By and large, people of the present

generation are intelligent. They do exhibit ingenunity in coining facts

which, they feel, would justify the step they have taken in the context.

The view obtained by the learned Trial Judge in the context is not

appropriate and is negatived. There is plethora of evidence on the

file to prove that the prosecutrix had been to a number of towns in

the company of the appellant. She is proved to have visited the

Courts for the purpose of attestation of affidavit Ex. D1. She never

ever made a grievance of the fact that she was being detained by the

appellant under threat or pressure. Interestingly enough, she denied

having appeared before the Notary Public but she is in the know of

the fact that the stamp paper had been purchased by an Advocate

(at Tikamgarh) who had been engaged by the appellant “for the

purpose”. She also knows that the affidavit had been typed by a

typist “in a Kiosk on the dictation of the lawyer engaged by Sunil.” It

was, thus, a pure and simple case where the entire episode was a

consensual affair. Once the prosecutrix has not been proved to be a

minor and no appeal has been filed by the State against the acquittal

of the appellant for the offence under Section 363 IPC, there is no

way the appellant could have been convicted for the offences under

Sections 366/376/506 IPC, particularly when it has been found that

she was a consenting party to the whole affair. In that context, it may

be noticed that it is in the First Information Report itself, which had

been lodged by none else or other than the own father of the

prosecutrix, that she had taken along a number of jewellary articles
Criminal Appeal No.1194-SB- of 2003 -6-

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and indicated cash amount while eloping with the appellant.

19. Insofar as the statement made by the prosecutrix under

Section 164 Cr.P.C. is concerned, it does not have the probative

value adequate enough to outweigh the substantive evidence ( in

affidavit Ex. D1 and love letters Ex. D2 to Ex. D8) to the effect that it

was all a consensual affair between two adult individuals. The law

may not be able to validate it as a recognised alliance but it cannot

punish the male partner either as the female participant was a major

girl and a willing partner in the entire episode.

20. The following facts can safely be culled out from the

material obtaining on the file:-

(1) The prosecution has not been able to prove that the

prosecutrix was below the age of 18 years.

(2) The prosecutrix had taken along cash amount and gold

and silver jewellery articles which eloping.

(3) She had addressed love letters Ex.D2 to Ex.D8 which

indicate the love/deep infatuation she had in her

heart/mind for the appellant.

(4) She travelled through and to various towers in the

company of the appellant but did not make a grievance of

any act on the part of the latter.

(5) She swore affidavit Ex.P1 before a Notary Public in the

Courts premises but did not complain of being under

threat at the hands of the appellant.

21. In the light of the foregoing discussion and facts noticed
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above, the impugned finding of conviction is found to be

unsustainable. The appeal shall stand allowed. The impugned

judgment of conviction is set aside. The appellant shall stand

acquitted of the charge.

August     11, 2008                          (S. D. ANAND)
Pka                                              JUDGE