{"id":198897,"date":"2008-12-02T00:00:00","date_gmt":"2008-12-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vinod-kumar-vs-the-state-of-haryana-on-2-december-2008"},"modified":"2016-08-14T08:25:23","modified_gmt":"2016-08-14T02:55:23","slug":"vinod-kumar-vs-the-state-of-haryana-on-2-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vinod-kumar-vs-the-state-of-haryana-on-2-december-2008","title":{"rendered":"Vinod Kumar vs The State Of Haryana on 2 December, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Vinod Kumar vs The State Of Haryana on 2 December, 2008<\/div>\n
Criminal Appeal No.41-SB of 1998                                -1-\n\n                                       ****\n\n\nIN THE HIGH COURT OF PUNJAB AND HARYANA\n              AT CHANDIGARH\n\n                          Criminal Appeal No.41-SB of 1998\n                          Date of decision : 2.12.2008\n\n                                ****\n\nVinod Kumar                                               .....Appellant\n\n                    Versus\n\nThe State of Haryana                                      ...Respondent\n\n                                ****\n\nCORAM : HON'BLE MR. JUSTICE S. D. ANAND\n\nPresent:      Ms. Divya Sharma, Advocate as Amicus Curiae\n              for the appellant\n\n              Mr. S.S.Mor, Senior Deputy Advocate General, Haryana\n\n\n\nS. D. ANAND, J.\n<\/pre>\n
              The appellant was convicted by the learned Trial Judge for the<\/p>\n
commission of       offences under Section 363, 366, 376 IPC on the<\/p>\n
allegations which may be indicated as under:-\n<\/p>\n
              The prosecutrix a daughter of PW-11 Jindu Ram was in the<\/p>\n
employment of PW-6 Sunder lal as a maid servant. It was the practice of<\/p>\n
the employer that he would daily drop her at her house after the house<\/p>\n
hold chores were over. On the day the prosecutrix would stay over at the<\/p>\n
house      of the employer,   the   latter would   furnish information to her<\/p>\n
parents.\n<\/p>\n
              On 13.1.1996, PW-6 Sunder Lal was on way (along with the<\/p>\n
prosecutrix) to the latter’s house when she informed him near a Chaupal
\n Criminal Appeal No.41-SB of 1998                                 -2-<\/span><\/p>\n
                                        ****<\/p>\n
(which fell enroute) that she would thereafter proceed on her own to her<\/p>\n
house. PW-6 Sunder Lal returned          from there.     It was there that the<\/p>\n
appellant met the prosecutrix and enticed her to a deserted room in the<\/p>\n
Rice Sheller on the promise of providing her groundnuts and sweets which<\/p>\n
were being distributed in the grain market. On reaching the deserted<\/p>\n
room aforementioned, the appellant spread paddy straw on the ground and<\/p>\n
raped her. Her efforts to raise a raula were thwarted by the appellant who<\/p>\n
gagged her mouth. After the rape had been committed, she came out of<\/p>\n
the room and passed urine. However, she came back to the room and<\/p>\n
went to sleep.   Appellant also slept by her side.         On the morning of<\/p>\n
14.1.1996, the appellant again ravished her.           As the clothes   of the<\/p>\n
prosecutrix got smeared with blood, the        appellant brought his sister’s<\/p>\n
clothes which she wore and went home after having been dropped near<\/p>\n
the Vaterinary hospital by the appellant. At the time she reached home,<\/p>\n
her parents were away to earn their livelihood. On their return home in the<\/p>\n
evening, she narrated the entire incident to them. The prosecutrix and her<\/p>\n
father were on way to the police station when the police met them enroute.<\/p>\n
The offence was notified to the police vide Ex. PM which the prosecutrix<\/p>\n
made to the police.\n<\/p>\n
            PW-1      Dr.   G.S.Arora    had   radiologically   examined   the<\/p>\n
prosecutrix on 19.3.1996 and opined, vide report Ex. PA. that the age of<\/p>\n
the prosecutrix was about 14-14-1\/2 years.\n<\/p>\n
            PW-2 Dr. J.K.Gulati had medico-legally examined the<\/p>\n
appellant on 16.1.1996 and opined that there was nothing to suggest that<\/p>\n
he was not capable of performing sexual intercouse.<\/p>\n
            PW-5 Dr. Amarjit Wadhwa had medico-legally examined the<\/p>\n
prosecutrix on 14.1.1996 and observed as under:-
\n Criminal Appeal No.41-SB of 1998                              -3-<\/span><\/p>\n
                                     ****<\/p>\n
            “Local Examination:- Valva, pubic mount, perineum, butock<\/p>\n
            and legs were smeared with blood, pubic hairs were metted.<\/p>\n
            There were afresh tear in the hymen at 6’o clock position<\/p>\n
            which was bleeding on touch.\n<\/p><\/blockquote>\n
            P.V.Examination :- She experienced lot of pain and there was<\/p>\n
            a tear in the vaginal wall on right side. Clots of blood was<\/p>\n
            removed from vagina. P\/S not done for vagina was not lax to<\/p>\n
            admits speculum uterus nulliparous, small in size and cervix is<\/p>\n
            very smell to touch, two slides prepared from posterior formix<\/p>\n
            and case was referred to radiologist for determination of age.”<\/p><\/blockquote>\n
            PW-1 Jai Gopal testified that he had spotted the appellant<\/p>\n
and the prosecutrix   moving together on 13.1.1996 at about 9.15 P.M.<\/p>\n
when the witness was proceeding towards his house after the closing<\/p>\n
hours of the shop. He testified that the appellant and the prosecutrix were<\/p>\n
proceeding towards Mehmudpura chowk.\n<\/p>\n
            PW-4 Ramesh Kumar also made a similar statement, though<\/p>\n
he claimed to have seen the appellant and prosecutrix on 14.1.1996 at<\/p>\n
about 9.00 A.M. At that time, both of them were coming from the sheller<\/p>\n
side.\n<\/p>\n
            PW-6 Sunder Lal is the employer of the prosecutrix.<\/p>\n
            PW-7 C. Chhatar Singh, PW-8 HC Roshan Lal and PW-9 C.<\/p>\n
Rajbir Singh tendered their formal affidavits Ex. PK, Ex. PL and Ex. PM.<\/p>\n
respectively into evidence.\n<\/p>\n
            PW-10 is the prosecutrix.\n<\/p>\n
            PW-11 Jindu Ram is the father of the prosecutrix.<\/p>\n
            PW-12 Constable Prem Kumar had prepared scaled site plan<\/p>\n
Ex. PS of the spot on 20.2.1996 on the pointing of the prosecutrix.
\n Criminal Appeal No.41-SB of 1998                               -4-<\/span><\/p>\n
                                     ****<\/p>\n
            PW-13 Smt. Bimlesh Tanwar, then posted as                Judicial<\/p>\n
Magistrate Ist Class, had recorded statement (Ex. PT) of the prosecutrix<\/p>\n
under Section 164 Cr.P.C.\n<\/p>\n
            PW-14 SI Dilbag Singh had investigated this case.<\/p>\n
            Ex. PH is the Chemical examiner report.\n<\/p>\n
            The appellant raised a pure and simple plea of innocence.<\/p>\n
            DW-1 Dhamma Ram, DW-2 Inder Raj, DW-3 Bharat Singh<\/p>\n
and DW-4 Smt. Pasho ( mother of the prosecutrix) were examined in<\/p>\n
defence evidence.\n<\/p>\n
            The prosecutrix was examined once again on 28.8.1987 on a<\/p>\n
plea preferred on her behalf.     In the course of the cross-examination<\/p>\n
directed at her on behalf of the appellant, she testified that she was aged<\/p>\n
20 years, that she slept along with her mother on 13.1.1996 and that she<\/p>\n
did not accompany the appellant to the sheller. She conceded having<\/p>\n
given affidavit Ex. DA to the appellant.      The contents of the Ex. DA<\/p>\n
contain an averment by the deponent\/prosecutrix that her age is 20 years,<\/p>\n
that she gave her earlier statement under the pressure of her father and<\/p>\n
she wants to make her truthful statement about the impugned occurrence.<\/p>\n
It was thereafter that she was cross-examined afresh on behalf of the<\/p>\n
appellant and she proved her age on oath.\n<\/p>\n
            Learned counsel for the appellant argues that the entire<\/p>\n
prosecution presentation suffers from the vice of improbabilities and<\/p>\n
contradictions which go to the root of the prosecution plea and those<\/p>\n
variation and the discrepancies in the inter-se statements of the<\/p>\n
prosecution witnesses are adequate enough to invalidate the prosecution<\/p>\n
plea.\n<\/p>\n
            There is force in the plea on behalf of the appellant.
\n Criminal Appeal No.41-SB of 1998                               -5-<\/span><\/p>\n
                                      ****<\/p>\n
             The reasons therefor are as under:-\n<\/p>\n
             Insofar as the age of the prosecutrix is concerned, the<\/p>\n
prosecution presentation is to the effect that she was under the age of 16<\/p>\n
years. It is in the statement of PW-11 Jindu Ram, father of the prosecutrix,<\/p>\n
that the prosecutrix had never been to a school,. On the day he was<\/p>\n
examined at the trial, he had not brought along the ration card. No birth<\/p>\n
record was produced at the trial. Jindu Ram gave his age as 70 years. He<\/p>\n
was examined on 8.11.1996. He claimed to have been three year old at<\/p>\n
the time of partition of the country. His marriage had taken place about 30-<\/p>\n
35 years ago. His first wife died after about seven years of marriage. He<\/p>\n
performed second marriage about 6\/7 years of the death of his first wife.<\/p>\n
The prosecutrix was born after one year of his second marriage. It is<\/p>\n
apparent from a perusal of the testimony of this witness that he has no<\/p>\n
sense of age etc. If he was three years old at the time of partition he could<\/p>\n
not have been aged 70 years on 8.11.1996 i.e. date on which he was<\/p>\n
examined at the trial.   His testimony cannot, thus, be      of any avail in<\/p>\n
determining the controversy about the age of the prosecutrix. The<\/p>\n
ossification report gave her age as 14-14-1\/2 years. The Medical Officer,<\/p>\n
who conducted ossification test ( PW-1 Dr. G.S.Arora), conceded in the<\/p>\n
cross-examination that age so opined could vary by two years on either<\/p>\n
side.\n<\/p>\n
             It would be pertinent to point out that the prosecution did cite<\/p>\n
the Record     Keeper of the office of Registrar, Birth and Deaths as<\/p>\n
prosecution witness but he was given up as unnecessary on 8.11.1996.<\/p>\n
Obviously, a witness would be cited only after the Investigating Agency had<\/p>\n
been able to get hold of evidence     favouring       the        prosecution<\/p>\n
presentation. The Record Keeper of the office aforementioned would have
\n Criminal Appeal No.41-SB of 1998                               -6-<\/span><\/p>\n
                                      ****<\/p>\n
produced birth entry pertaining to the prosecutrix which would have<\/p>\n
enabled the Court to determine her age. There is nothing on record to<\/p>\n
indicate why the prosecution, at all, opted to give up that witness as<\/p>\n
unnecessary. The assumption, in the circumstances of the case, is that<\/p>\n
the testimony of the    witness aforementioned, if examined, would not<\/p>\n
have been favourable to the prosecution plea.\n<\/p>\n
             It would be relevant to notice here that the prosecutrix had<\/p>\n
sworn affidavit Ex. DA to the effect that her age is 20 years. Even in the<\/p>\n
course of further cross-examination, she gave her age as 20 years. Apart<\/p>\n
therefrom, her real mother appeared as DW-4 and gave her age as 20<\/p>\n
years. She also testified that the prosecutrix slept in the house with her on<\/p>\n
13.1.1996 and that she did not go out of the house on that night and that<\/p>\n
the police had falsely registered a case against the appellant. Though she<\/p>\n
conceded, as correct, a suggestion that she had accompanied the<\/p>\n
prosecutrix and her husband to the police station, she categorically averred<\/p>\n
that the registration of a false case against the appellant came to her<\/p>\n
notice later on,<\/p>\n
             It is apparent from the above discussion that the prosecution<\/p>\n
has not been able to prove that the prosecutrix was under the age of 16<\/p>\n
years on the date of the impugned episode.\n<\/p>\n
             The prosecutrix would want the Court to believe that she used<\/p>\n
to, at times, take meal at the house of her employer and that she also used<\/p>\n
to sleep over at the house of her employer many a time. It is also in her<\/p>\n
statement    that “my parents were     not used to be informed about my<\/p>\n
staying at the house of my employer” Her statement to the above effect is<\/p>\n
contrary to that of her employer who categorically testified that “whenever<\/p>\n
prosecutrix used to stay at our house we used to inform her parents.”
\n Criminal Appeal No.41-SB of 1998                                 -7-<\/span><\/p>\n
                                       ****<\/p>\n
Though PW-11 Jindu Ram agreed with PW-6 Sunder lal about the practice<\/p>\n
aforementioned, he testified that a minor daughter aged about 4-5 years of<\/p>\n
Arjun, a neighbourer of the employer, informed them that the prosecutrix<\/p>\n
would stay over for the night at the house of the employer. He was only<\/p>\n
trying to explain the delay in the notification of the offence to the police. It<\/p>\n
had otherwise appeared in his statement that on the morning on<\/p>\n
14.1.1996, he and his wife went over to attend to their routine avocation in<\/p>\n
the morning. After the prosecutrix did not return to her house on the night<\/p>\n
intervening 13\/14.1.1996 and her parents had not intimation about her<\/p>\n
having slept over at the house of employer, it could not be expected that<\/p>\n
her parents would got for their daily avocation without bothering to make<\/p>\n
search efforts to locate her.\n<\/p>\n
             On point of it all having been a consensual affair, it would be<\/p>\n
useful to refer to the statement of PW-6 Sunder Lal. It is in his testimony<\/p>\n
that, as per practice, he would drop the prosecutrix at her house itself. He<\/p>\n
told the Court at the trial that the prosecutrix on the relevant date,<\/p>\n
discharged him of the responsibility on reaching near a Chaupal and told<\/p>\n
him that she would henceforth go to her house on her own. It is there only<\/p>\n
that the appellant is alleged to have met her.           Her insistence upon<\/p>\n
‘discharge’ the employer from the Chaupal was significant particularly<\/p>\n
because the previous practice was to the effect that the employer would<\/p>\n
leave her at her house only. There was nothing unnatural about it. If an<\/p>\n
employer is availing services of a female child, it would be expected to him<\/p>\n
to make arrangement for her safe return to her house after the daily house<\/p>\n
hold chores are over and that is precisely what PW-6 Sunder Lal was<\/p>\n
claimed to have been doing throughout except on the relevant date when<\/p>\n
the prosecutrix announced to him that he might get back from the Chaupal
\n Criminal Appeal No.41-SB of 1998                                -8-<\/span><\/p>\n
                                      ****<\/p>\n
and she would there after proceed to her         house on her own.       The<\/p>\n
prosecutrix further told the Court that since her clothes had become torn,<\/p>\n
the appellant brought his sister’s clothes with her. It follows therefrom that<\/p>\n
the appellant left her alone at the place of occurrence. There is nothing on<\/p>\n
record to indicate that the appellant bolted the door of the room from<\/p>\n
outside. In that view of things, it is apparent that if she was so inclined,<\/p>\n
she could have escaped from there and come over to her house. This<\/p>\n
aspect is to be appreciated in the light of the testimony of PW-5 Dr. Amarjit<\/p>\n
Wadhwa that there was no mark of injury on the person of the prosecutrix.<\/p>\n
All these tell tale circumstances indicate that the prosecutrix was a<\/p>\n
consenting party to whatever had happened in the impugned episode.<\/p>\n
            In the light of the foregoing discussion, it is apparent that<\/p>\n
appeal deserves to     succeed.      The appeal shall stand allowed. The<\/p>\n
impugned finding of conviction shall stand set aside. The appellant shall<\/p>\n
stand acquitted of the charge.\n<\/p>\n<\/p>\n
December 02, 2008                                    (S. D. ANAND)\nPka                                                       JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Vinod Kumar vs The State Of Haryana on 2 December, 2008 Criminal Appeal No.41-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.41-SB of 1998 Date of decision : 2.12.2008 **** Vinod Kumar …..Appellant Versus The State of Haryana …Respondent **** CORAM : HON’BLE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-198897","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nVinod Kumar vs The State Of Haryana on 2 December, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vinod-kumar-vs-the-state-of-haryana-on-2-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vinod Kumar vs The State Of Haryana on 2 December, 2008 - 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