Poonam Devi vs State Of Haryana And Another
2022 Latest Caselaw 15839 P&H

CRA-AD-658-2019 (O&M)                                              -1-

       In the High Court of Punjab and Haryana at Chandigarh


                                                  CRA-AD-658-2019 (O&M)
                                                  Reserved on: 1.12.2022
                                                  Date of Decision: 06.12.2022

Poonam Devi                                                        ......Appellant


                                         Versus

State of Haryana and another                                    ......Respondents

CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
       HON'BLE MR. JUSTICE KULDEEP TIWARI

Present:    Mr. Ashish Grewal, Advocate
            counsel for the appellant.

            Mr. Anmol Malik, DAG, Haryana.

            Mr. Kulwant Singh Dhanora, Advocate
            for respondent No. 2.

                        ****

SURESHWAR THAKUR, J.

1. The instant appeal is directed by the aggrieved complainant,

against the verdict, as made on 4.6.2019, upon Sessions Case No. 163 of

2018, by the learned Additional Sessions Judge (Exclusive Court for

Henious Crimes Against Women and Children), Yamuna Nagar, at Jagadhri,

Through the above said verdict, the learned trial Judge concerned, acquitted

the accused-respondent No. 2, in respect of charges drawn against him for

offences punishable under Section 366 of the IPC, and, under Section 376

(3) of the IPC, besides under Section 3, and as punishable under Section 4

of the Protection of Children from Sexual Offences Act, 2012.

Factual Background

2. The genesis of the prosecution case becomes embodied in the

appeal FIR, to which Ex. P-5 is assigned. The narrations carried in Ex. P-5

1 of 12

CRA-AD-658-2019 (O&M) -2-

are that on 5.5.2018, complainant 'P' mother of the victim/prosecutrix,

(name of complainant as well as prosecutrix withheld to hide their identities

in terms of explanation attached to Section 33(7) of Protection of Children

from sexual offences Act, 2012) moved a complaint alleging therein, that

she is working in Ashirwad Hospital, Yamuna Nagar, and, has two children,

elder son namely Harsh and a younger daughter aged 14 years. On 4.5.2018,

her daughter was sleeping alongwith her in the room, but at around 6.00

AM, she found her daughter missing. She searched for her daughter in her

relations, but she could not be traced. She alleged that the accused Sunil,

their neighbour has enticed her daughter, as he is also missing from his

house since that day. On the basis of this complaint, FIR under Section 365

of IPC was registered.

Investigation proceedings

3. During investigations, victim/prosecutrix and accused were

recovered on 10.5.2018. The accused was arrested. During investigation,

victim informed that the accused had a week ago committed wrong act with

her. The statement of victim under Section 164 of Cr.P.C. was got recorded,

in which she has stated that "she has left the house as per her own wishes

for roaming alongwith Sunil. He did not kidnap her." Thereafter, medico-

legal examination of victim was got conducted. Later on, section 4 of The

POCSO Act, 2012 was also added. The accused suffered a disclosure

statement and got the place of occurrence demarcated. Medico legal

examination of accused was also got conducted. After conclusion of

investigations, the investigating officer concerned, proceeded to institute a

report under Section 173 of the Cr.P.C., before the learned committal Court

concerned.

                                2 of 12

 CRA-AD-658-2019 (O&M)                                           -3-

                                Trial Proceedings

4. The learned trial Judge concerned, after receiving the case for

trial, subsequent to its becoming committed to him, made an objective

analysis of the incriminatory material, adduced before her. Resultantly,

initially, the learned Additional Sessions Judge concerned, vide order dated

7.7.2018, proceeded to draw charges against the accused for commission of

offences punishable under Section 366 of the IPC, and, under Section 3,

punishable, besides under Section 4 of the Protection of Children from

Sexual Offences Act, 2012. However, the charge was amended, and, vide

order dated 31.8.2018, the amended charge sheet was served, upon the

accused, for offences punishable under Sections 366 IPC, and, under

Section 376(3) of the IPC, as also under Section 4 of the Protection of

Children from Sexual Offences Act, 2012. The afore drawn charges were

put to the accused, to which he pleaded not guilty, and, claimed trial.

5. In proof of its case, the prosecution examined 13 witnesses,

and, thereafter the learned Public Prosecutor concerned, closed the

prosecution evidence. After the closure of prosecution evidence, the learned

trial Judge concerned, drew proceedings, under Section 313 of the Cr.P.C.,

but thereins, the accused pleaded innocence, and, claimed false implication.

He also chose to adduce defence evidence, but did not lead any defence

witness into the witness box.

6. As above stated, the learned trial Judge concerned, proceeded

to acquit the accused for the charges (supra), as became drawn against him.

Submissions of the learned counsel for the appellant

7. The learned counsel for the aggrieved convict-appellant, has

argued before this Court, that the impugned verdict of acquittal, as made by

3 of 12

CRA-AD-658-2019 (O&M) -4-

the learned trial Judge concerned, requires an interference. He supports the

above submission on the ground, that it is based on a gross misappreciation,

and, non-appreciation of evidence germane to the charge.

Submissions of the learned counsel for the acquitted

8. On the other hand, the learned counsel for respondent No.2 has

argued before this Court, that the verdict of acquittal, as pronounced by the

learned trial Judge concerned, is well merited, and, does not require any

interference, Therefore, he has argued that the instant appeal, as preferred

by the complainant, be dismissed.

The reasons assigned by the learned trial Judge concerned, for making

an order of acquittal upon the accused

9. The prosecutrix, during the course of investigations, had

recorded, before the learned Judicial Magistrate concerned, her statement

under Section 164 of the Cr.P.C., to which Ex.PW-2/A is assigned. Thereins

she did not impute any guilt to the accused, but echoed thereins, that she

had voluntarily taken to the company of the accused, and, she also further

echoed thereins, that the accused had not committed any sexual intercourse,

upon her. However, when she stepped into the witness box as PW-2, she

made allegations against the accused qua his subjecting her to sexual

intercourse on 4.5.2018, and, thereafter his forcibly taking her to Sri

Anandpur Sahib. The above made testification(s) in Court, by the

prosecutrix, is in dire contradiction with her earlier statement, made under

Section 164 of the Cr.P.C., before the jurisdictionally empowered Court,

and, to which Ex. PW-2/A is assigned, whereins, she did not assign any

incriminatory role to the accused. Therefore, it became concluded by the

learned trial Judge concerned, that the testification(s), in Court, as made by

4 of 12

CRA-AD-658-2019 (O&M) -5-

the prosecutrix, is neither reliable nor confidence inspiring. The above

assigned reason is sound in law and does not require any interference.

10. The further reason, as assigned by the learned trial Judge

concerned, to form a verdict of acquittal, in respect of the charges drawn

against the accused, becomes grooved in the factum, that the prosecutrix

had travelled to various destinations in the company of the accused, yet with

the prosecutrix evidently not raising any hue and cry rather for inviting

attention of any person. Therefore, a conclusion was ably formed, that the

prosecutrix had voluntarily joined the company of the accused. In addition,

a perusal of the statement of PW-6, one Sunita, SPO, who had caused the

recovery of the prosecutrix, from Sector-20, Panchkula reveals, that she, did

openly speak about the prosecutrix, and, the accused rather freely, and,

openly roaming on a public road. Therefore, naturally, the learned trial

Judge concerned, made a tenable finding that the charge(s), as drawn

against the accused becoming not cogently proven.

11. The learned trial Judge concerned, had also referred to the

factum, that with the mother of the prosecutrix, upon hers stepping into the

witness box as PW-3, rather testifying in her cross-examination, that after

the prosecutrix had returned home, she did not disclose to her qua the

accused subjecting her to forcible sexual intercourse, and, also referred to

the prosecutrix rather even during the course of the medical examination, as

became conducted upon her, hers omitting to disclose to the doctor

concerned, qua the accused committing any forcible sexual intercourse upon

her.

12. The above latter reference in the impugned verdict became

founded, upon PW-12 Dr. Suvidha Giri, in her cross-examination stating,

5 of 12

CRA-AD-658-2019 (O&M) -6-

that at the time of hers subjecting the victim/prosecutrix to medical

examination, the prosecutrix intimating her, that she had voluntarily joined

the company of the accused, and, that he did not perpetrate any sexual

intercourse, upon her. However, she thereins echoed, that rather the mother

of the victim had disclosed, that the accused had perpetrated sexual

intercourse, upon the prosecutrix. Moreover, since she also disclosed, that

on an examination of the prosecutrix, she did not observe any internal or

external injury marks on her body. Therefore, the learned trial Judge

concerned, concluded, that the prosecutrix, as stated by her, in her earlier

statement, as made before the learned Magistrate concerned, qua hers

voluntarily joining the company of the accused, rather being truthful,

whereas the contra therewith echoing, as made before PW-12, by the mother

of the victim, hence being ridden with an entrenched vice of falsity. Thus,

the learned trial Judge concerned, did make a firm and tenable conclusion

that a verdict of acquittal, is to be returned in respect of the charges drawn

against the accused.

FSL report

13. The report of the forensic expert concerned, is embodied in

Ex. PX. The same is ad verbatim extracted hereinafter.

"Description of parcels(s) and condition of seal(s) Five sealed parcel(s). The seals were intact and tallied with the specimen seals as per forwarding authority's letters.

Description of arcticle(s) contained in parcel(s)

Parcel No. and seal Description of parcel(s) No. impression I 1-Dr Sealed airtight glass vial containing exhibit-1 stated to be of Niharika. Exhibit-1. One cottonwool swab on stick alongwith brown fungus like material described as vaginal slab.

                                6 of 12

 CRA-AD-658-2019 (O&M)                                                -7-


             II         1-Dr              Sealed airtight glass vial containing
                                          exhibit-2 stated to be of Niharika.
                                          Exhibit-2. One cottonwool swab on stick
                                          alongwith black fungus like material
                                          described as vaginal slab.
             III        5-Dr              Sealed cloth parcel containing exhibit-3
                                          & exhibit-3b stated to be of Sunil
                                          Kumar.
                                          Exhibit-3a. One dirty brown colored
                                          underwear.
                                          Exhibit-3b- One dirty blue with white red
                                          & black striped T-shirt.
             IV         1-Dr              Sealed airtight glass bottle containing
                                          exhibit-4 stated to be of Sunill Kumar.
                                          Exhibit-4. A Bunch of dark brown
                                          strands of hair described as pubic hair..
             V          1-Dr              Sealed airtight glass bottle containing
                                          exhibit-5 stated to be of Sunil Kumar.
                                          Exhibit-5. Two cottonwool swab on
                                          sticks described as swab.

                              Laboratory examination

Laboratory examination were carried out to detect the presence of semen on the exhibits performing chemical test and microscopy. Based upon these examination, the results obtained are given below:-

                   1.     Human          semen   was   detected    on exhibit-3a
                   (underwear) and exhibit-5 (swab).              However semen

could not be detected on rest of the exhibits mentioned above."

14. On an analysis of the above, as made in the apposite report,

comprised in Ex.PX, the learned trial Judge concerned, hence concluded

that since it did not make any underlinings qua human semen, being

detected on any of the items, as became sent there. Thus, the learned trial

Judge did also tenably conclude, that sexual intercourse was never

committed,upon the prosecutrix.

The reason for concurring with the judgment as pronounced by the learned trial Judge concerned

15. The assignment of credence, to the statement made by the

prosecutrix, under Section 164 of the Cr.P.C., to which Ex. PW-2/A

7 of 12

CRA-AD-658-2019 (O&M) -8-

becomes assigned, viz-a-viz the testification, made in Court by her, rather

by the learned trial Judge concerned, hence is creditworthy. The reason

becomes founded, upon the factum, that Ex. PW-2/A naturally is the

previous statement, in writing of the prosecutrix, and, when thereins, she

exculpated the accused, then any subsequent thereto inculpation, if any, as

made by the prosecutrix against the accused, is but, an open, and, rife

embellishment or improvement from her earlier statement, as became made

by her under Section 164 of the Cr.P.C. Therefore, her testification in Court,

was ably concluded by the learned trial Judge concerned, to be neither

inspiring confidence nor being amenable for becoming meted any credence.

16. Even the statement of the mother of the prosecutrix (PW-3),

qua the prosecutrix, after returning home, purportedly making an intimation

to her, about the accused subjecting her to forcible sexual intercourse, is

completely untruthful, and prevaricated, given in her cross-examination,

hers echoing that the said intimation was never directly given to her by the

prosecutrix, but was rather purveyed by the prosecutrix to her mausi, who

thereafter conveyed the same to her. Therefore, the intimation, if any, as

made by the mausi of the prosecutrix, to the mother of the prosecutrix, is but

merely hearsay evidence. To hence dispel the lack of its carrying any

evidentiary vigour, it became imperative, upon the prosecution to cite the

mausi of the prosecutrix, as a prosecution witness. However, the said has

not been done. Therefore, the statement of the mother of the prosecutrix,

about her sister making an intimation to her, about her daughter conveying

to her i.e. the mausi of the prosecutrix qua the prosecutrix, being subjected

to forcible sexual intercourse by the accused, becomes frail, as, it obviously

remains in the realm of inadmissible hearsay evidence, to which no

8 of 12

CRA-AD-658-2019 (O&M) -9-

credence is to be assigned.

Relevance of the age of the prosecutrix

17. Even if the efficacy of the report of the FSL concerned, is

scuttled, by the findings, made in the MLR Ex. P8, as proven by PW-12.

Moreover, even though, the FSL concerned, has reported that, on the items

sent to it for examination(s), no human semen, being detected, but the said

fact would not per se lead this Court to make a conclusion, that the accused

had not subjected the prosecutrix to sexual intercourse, as the doctor

concerned, who in respect of the prosecutrix, prepared MLR Ex. P18, has

testified in her examination-in-chief, that there was a possibility of the

prosecutrix, being put to sexual assault. Therefore, it has to be determined,

whether in the face of the above, the factum of the prosecutrix voluntarily

joining the company of the accused, and, also hers being a consensual

partner to the sexual intercourse, if any, which became perpetrated, upon

her, by the accused, rather at the relevant time, does rather purvey any

exculpatory leverage to the defence. The defence can ably capitalise from

the above, only if at the relevant time, the prosecutrix was evidently a

minor. The necessity for making the above determination arises from the

factum, that if she was, at the relevant time, evidently a minor, thereupon,

she became completely incapacitated in law to mete any valid consent to the

accused.

Creditworthiness of school leaving certificate vis-a-vis the date of her birth entered by the Registrar of Births and Deaths

18. For determining the above, it is necessary to bear in mind the

school leaving certificate, to which Ex. P1 is assigned, as relates to the

prosecutrix, and, which has been proven by PW-1. Thereins, the date of

birth of the prosecutrix is mentioned as 1.1.2004. Thus, at the relevant time,

9 of 12

CRA-AD-658-2019 (O&M) -10-

she was prima-facie a minor, and, was obviously under a severe legal

disability to mete any valid consent to the accused. However, per se on

anvil of Ex. P1, neither any firm conclusion can be drawn that, as a matter

of fact, the prosecutrix, at the relevant stage, was a minor, and, nor any firm

conclusion can be erected that she then was under a legal disability to mete

any valid consent to the accused. The reason for forming the above

inference, ensues from the factum, that PW-1 had produced in Court, the

admission register, pertaining to the admission of the prosecutrix, whereins,

her name was entered at Sr. No. 60, and, thereins though, her date of birth is

mentioned as 1.1.2004, but in her cross-examination, she has yet stated that

the said entry was made on the basis of the certificate, issued by the Head

Teacher, Government School Ratanpura, Block Jagadhri (Yamuna Nagar),

where the prosecutrix was initially admitted. Moreover, she has also stated

that the birth certificate of the prosecutrix, as issued by the Registrar of

Births and Deaths, was never furnished before the school concerned, by the

parents of the prosecutrix. Moreover, there is a further echoing in her cross-

examination, that at the time of admission of the prosecutrix in the school

concerned, after hers being released from Government School Ratanpura,

Block Jagadhri (Yamuna Nagar), rather no affidavit being furnished by her

parents hence relating to the precise date of birth of the child. Therefore, it

became incumbent, upon the prosecution to lead cogent evidence, not only

through producing the relevant records relating to the admission of the

prosecutrix in Government School Ratanpura, Block Jagadhri (Yamuna

Nagar), wherefrom she thereafter got admitted in Shivalik Public Senior

Secondary School, Sabapur, District Yamuna Nagar, and, wherefrom Ex. P1

became issued, but it also became incumbent upon the prosecution, to also

10 of 12

CRA-AD-658-2019 (O&M) -11-

adduce into evidence the birth certificate of the prosecutrix, as became

issued from the Registrar of Births and Deaths. However, the said records

were never endeavoured to be summoned, nor the prosecution deemed it fit

to place on record the birth certificate of the prosecutrix, as became issued

by the Registrar of Births and Deaths. Moreover, reiteratedly the

prosecution also failed to place on record any affidavit, as became appended

with the apposite application by the parents of the prosecutrix, at the time of

theirs getting their ward admitted at the initial stage in Government School

Ratanpura, Block Jagadhri (Yamuna Nagar). Moreover, the prosecution

omitted to place on record any affidavit, in respect thereof, as may have

become furnished by the parents of the prosecutrix, on theirs subsequently

getting her admitted in Shivalik Public Senior Secondary School, Sabapur,

District Yamuna Nagar. The effect of the afore wants, are that, on the basis

of Ex. P1, which is but only a school leaving certificate, and, though records

thereins the date of birth of the prosecutrix, as 1.1.2004, rather no firm

conclusion can be made, that it does constitute, the exact, and, precise date

of birth of the prosecutrix. Rather the best admissible evidence, in respect of

the precise, and, credible age of the prosecutrix, and to which a rebuttable

presumption of truth is attached, is comprised in the birth certificate of the

prosecutrix, as became issued by the Registrar of Births and Deaths, as,

obviously the act of its issuance, makes it an act, rather performed in the

discharge of public duties by a public official, and, whereto a statutory

presumption of truth is fastened, hence through the mandate cast under

Section 25 of the Indian Evidence Act. Since the above evidence is

completely amiss, nor also when the relevant affidavit is placed on record,

therefore, the absence of the above best admissible evidence, reiteratedly

11 of 12

CRA-AD-658-2019 (O&M) -12-

rather render the echoing in Ex. P1, about the prosecutrix being born on

1.1.2004, to be neither credible nor the apposite best evidence. Thus, it

cannot be, on the basis of Ex. P1, as ably concluded by the learned trial

Judge concerned, also concluded by this Court that the prosecutrix, at the

relevant stage, was a minor, and/or, she was then not legally capacitated to

mete any valid consent to the accused, for the latter perpetrating any sexual

intercourse, upon her. Since the sexual overtures concerned, were

conspicuously consensual, thus the charge drawn against the accused ought

to fail.

Final order

19. The 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, 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.

20. Records be sent down forthwith.

21. The miscellaneous application(s), if any, is/are also disposed

of.

(SURESHWAR THAKUR) JUDGE

(KULDEEP TIWARI) JUDGE December 6th, 2022 Gurpreet

Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

12 of 12