Rajwinder Kaur vs State Of Punjab And Another
2022 Latest Caselaw 14144 P&H

CRM-A-3020-2019                                                              -1-

        In the High Court of Punjab and Haryana at Chandigarh


                                                     CRM-A-3020-2019
                                                     Reserved on: 09.11.2022
                                                     Date of Decision: 11.11.2022

Rajwinder Kaur                                                       ......Applicant


                                            Versus

State of Punjab and another                                         ......Respondent


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

Present:     None for the applicant.

             Ms. Monka Jalota, Sr. DAG, Punjab.

                           ****

SURESHWAR THAKUR, J.

1. Through the instant application, the aggrieved victim-

complainant prays for leave being granted, to challenge the verdict of

acquittal, as made on 8.2.2019, upon Sessions Case No. 01 of 2.1.2018, by

the learned Additional Sessions Judge, Faridkot.

2. The requisitioned records of the learned Court below have been

received. However, neither on the previous date, nor today the counsel

engaged by the aggrieved victim-complainant recorded his appearance

before this Court. Nonetheless, with the assistance of the learned State

counsel, this Court has incisively traversed through the entire record(s) of

the learned trial Court.

Factual Background

3. The genesis of the prosecution case, is rested upon the apposite

FIR, to which Ex. PW-9/A is assigned. In Ex. PW-9/A, the victim-

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complainant averred that in the year 2012, she was studying in 8th class in

Government School, Kotakpura. She continues to narrate thereins, that she

along with her mother used to reside in the house, and, that her brothers

used to stay outside in connection with their work. Furthermore, she echoes

that the shop of the accused was near her house, and, he used to watch the

applicant, and, also used to chase her. She further averred that the accused

allured her into making friendship with him. In August 2012, when the

applicant was alone at her home, then the accused came to meet her and

forcibly under pretext of marriage, developed physical relations with her.

The accused also clicked many obscene photographs of the victim, and, by

threatening her with dire consequences against hers disclosing this fact to

anyone, besides with his threatening to viralize the said photographs, the

accused is alleged to sexually exploit her time and again, and, whenever she

asked the accused to marry her, he used to put off the matter under one

pretext or the other. The victim, though time and again requested the

accused to talk to his parents about their marriage, but the accused kept

lingering on the matter by saying that his parents will not agree for their

marriage, and, thus, they have to perform their marriage after fleeing from

home. The accused is alleged to entice her on the pretext of marriage.

Thereafter, her parents informed the police, upon which the police started

investigation, but on coming to know about the police proceedings, the

accused is alleged to leave the victim at Bus stand. Thereafter, the victim

narrated the whole story to her parents and relatives, upon which her family

members called the accused at their house, where the accused demanded

some time to get her parents agreed to their marriage. During this period, the

accused used to visit the house of the victim. In March 2016, the accused

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took the victim to a Dhaba belonging to his friend, at Panj Grain road,

where the accused asked the victim to develop physical relations with him,

for which she refused and asked him for marriage. However, the accused

mixed intoxicant tablets in the cold drink, which she consumed, and,

thereafter when she was in a semi-conscious state, he made physical

relations with her. After a long time, when the family members of victim

again asked the accused about marriage, the accused flatly refused and said

that he intended to fulfill his lust and he did so. Thereafter, the victim and

her family members asked the parents of the accused about their marriage

but they also flatly refused for their marriage. On 15.06.2017, an application

as moved by the applicant-victim, was marked to P.S City Kotkapura, upon

which the police opined that the application is devoid of full details, and,

rather asked for the moving of another application. The police also did not

record any type of statement of the victim. Thereafter, the accused had filed

a Civil suit stating therein their relationship as sister/brother and matter

being of money transaction. The victim further stated that the accused had

spoiled her life, and, that on the pretext of marriage, he had sexually

exploited her and thus, action be taken against the accused.

Investigation proceedings

4. During the course of investigations, being made into the FIR, to

which Ex. PW-9/A is assigned, the investigating officer concerned,

recorded the statements of the witnesses under Section 161 of the Cr.P.C.

Moreover, he also ensured the making(s) of medical examinations of the

accused as well as of the prosecutrix. The report of the chemical examiner

concerned, was also elicited, and, was thereafter appended along with the

report filed under Section 173 of the Cr.P.C., by the investigating officer,

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before the learned committal Court concerned.

5. Importantly, during the course of investigations being

underway into the FIR Ex. PW-9/A, the prosecutrix appeared before the

learned JMIC, Faridkot, and, before him, she made a statement under

Section 164 of the Cr.P.C., to which Ex. PW-9/J is assigned. The statement,

as made under Section 164 of the Cr.P.C., by the prosecutrix, is ad verbatim

reproduced hereinafter.

"There was a shop of Maninder Singh at the back side of our house. Its way was toward the street of our house. His conversation was made with me. He used to say me about our marriage. I was lured in his talking. It is an episode of August, 2012. He used to meet me routinely and on the excuses of marriage, he made with me physical relations. Then, he told me in 2016 that we do a court marriage, as both our parents were not ready for our marriage. Then, he took me in January, 2016 with him. When we arrived at Faridkot, then he received a call of someone that my parents gave an application in the Police Station. After knowing about that, he left me at round chowk Kotkapura and fled away and phoned at my home that my parents take me. Then, my parents took me home. After reaching home, my parents beat me and asked from me about the said boy, to whom, I went. I told everything to my parents about Maninder Singh. My parents called Maninder Singh and when he was talked, he agreed for marriage. He told that he will marry with me by 15 to 20 days. But he again denied from his own promise and started to make pretexts. I and my parents told a number of times to marry, but he did not agree and now he flatly refused about marriage. He made with me wrong by making pretext of marriage. The action should be taken against him. Statement has been heard and it is correct."

6. After conclusion of investigations into the FIR bearing

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EX. PW-9/A, the investigating officer concerned, proceeded to institute a

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

concerned.

Committal Proceedings

7. Since the offence constituted in the FIR was exclusively triable

by the Court of Session, thus, the learned committal Court concerned,

through a committal order made on 22.12.2017, proceeded to commit the

accused to face trial before the Court of Session.

Trial Court Proceedings

8. The learned trial Judge concerned, after hearing the learned

Public Prosecutor concerned, and, also after hearing the learned defence

counsel, besides after perusing the documents, as, appended with the report

filed under Section 173 of the Cr.P.C., came to a prima facie conclusion,

that the accused was amenable for his being tried for an offence punishable

under Section 376 of the IPC. Resultantly, the learned trial Judge

concerned, drew a charge against the accused, for an offence punishable

under Section 376 of the IPC. However, the accused did not plead guilty to

the above drawn charge, and, rather claimed trial.

9. In proof of its case, the prosecution examined 09 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, and, did avail the said

opportunity through his placing on record his birth certificate.

10. After hearing the learned State counsel, and, after perusing the

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records of the learned trial Court concerned, this Court finds that

appreciation of evidence, as done by the learned trial Judge concerned, does

not suffer from any gross perversity, and, absurdity of any gross

misappreciation of evidence germane to the charge, nor suffers from any

gross error of any non-appreciation of any evidence germane to the charge.

Reasons for forming the above conclusion

11. The prosecutrix in FIR, to which Ex. PW-9/A is assigned, had

alleged that the perpetration of forcible sexual intercourse(s), upon her, by

the accused, rather commenced in the year 2012. Though, upon her

stepping into the witness box as PW-3, she did speak in corroboration

thereto. Moreover, though she also, upon stepping into the witness box as

PW-3, did corroborate the narration, as made in Ex. PW-9/A, qua the

accused after allegedly perpetrating forcible sexual intercourses, upon her in

the year 2012, rather had also clicked her obscene pictures. In addition,

though she also testified in corroboration to the further narration, as carried

in the FIR, that under the accused's threat to viralize the said photographs,

she subsequently also succumbed to his sexual overtures. Furthermore, she

also testified in corroboration to the further fact, as detailed in the FIR, that

the accused, on the pretext of his marrying her, subjected her to repeated

sexual intercourses. However, the FIR in respect of the penal incident(s),

which commenced in the year 2012, and, purportedly lasted thereafter too,

did not yet come to be lodged in prompt sequel theretos. Contrarily, the FIR

in respect of the penal incident(s), which allegedly initially occurred in the

year 2012, and, which purportedly lasted thereafter(s) too, rather came to be

belatedly lodged therefrom, inasmuch as in the year 2017.

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Inferences from the delay in the lodging of the FIR

12. The sequel of belated reporting of the penal incident(s) (supra)

to the police, by the complainant, does marshal an inference from this Court,

that the reported incident is permeated with a gross vice of premeditation,

and, concoction. Resultantly, no prima facie credence can be assigned

thereto. Moreover, the further effect thereof, is that, the emergence of best

medical evidence to succor the allegations, as made by the prosecutrix

against the accused, has never emerged, nor could emerge, as the apposite

immense elapse of time rather has resulted in its becoming completely

suppressed, and, smothered. Therefore, also the belated lodging of the FIR,

does beget a firm inference, that thereins becomes encapsulated a

completely false, and, concocted narrative.

13. Though, in Ex. PW-9/A, the prosecutrix alleges, that in March

2016, the accused took her to at a dhaba, situated at village Panjgrain Road,

where he attempted to establish physical contact with her, but despite hers

relenting, yet the accused, after administering some intoxicant in the cold

drink, which she consumed, and, which resulted in her becoming semi-

conscious, hence subjected her to sexual intercourse. However, even the

above incident of March 2016 appears to be a sheer concoction, and,

premeditation, as, the above incident has been belatedly reported in the

month of September 2017.

14. As above stated, during the course of investigations, being

underway into FIR, Ex. PW-9/A, the prosecutrix had made a statement

under Section 164 of the Cr.P.C., before the learned Magistrate concerned.

The said statement has been ad verbatim reproduced hereinabove.

However, thereins the prosecutrix has not made any narration about the

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accused after his allegedly subjecting her to forcible sexual intercourse, in

the year 2012, rather clicking her obscene pictures, and, on threat to viralize

them, his securing her tainted consent to subsequently also allegedly subject

her to forcible sexual intercourse(s). Therefore, the omission of the above

fact, in Ex. PW-9/A, which encloses her statement made before the learned

Magistrate concerned, does foster an inference, that the above fact narrated

in Ex. PW-9/A, is completely false, and, contrived. If so, the bedrock of the

prosecution case becomes jettisoned.

15. In addition, in Ex. PW-9/K, the prosecutrix remained silent

about the incident of March 2016. Thus, the above mentioned incident of

March 2016 in FIR Ex. PW-9/A, is fortifyingly obviously construable to be

a completely false, and, contrived fact. Thus, no credence can be assigned

thereto.

Birth certificate of the prosecutrix

16. The prosecutrix, as revealed by her birth certificate, to which

Mark-A is assigned, was born on 27.12.1994. The above undisputed date of

birth of the prosecutrix assumes relevance only for the purpose of

construing whether in the year 2012, when she initially allegedly became

subjected to forcible sexual intercourse, hence had or not acquired the age

of consent. Though, obviously in the year 2012, she was not a major.

Moreover, though also then she was not legally capacitated to mete any

valid consent to the accused for his holding her to coitus. However, the

factum of acquisition of any valid capacity of the prosecutrix to then mete

any lawful consent to the accused rather for the relevant purpose, yet does

not appear to be at all relevant. The reason becomes founded in the above

drawn inference, that the incidents which allegedly commenced in the year

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2012, and, which allegedly occurred subsequently also, rather being

completely false, contrived, and, manufactured. Moreover, any sexual

incident, which occurred on the prosecutrix acquiring majority, is thus,

obviously a sequel of hers meteing a lawful consent to the accused.

Medical Examination Report

17. Though, in Ex. PW-9/M, the chemical examiner has reported

qua spermatozoa being detected in Exhibit I and II. However, from the

above fact, no firm inference can be drawn that hence, the charge drawn

against the accused becoming fully established. The reason becomes

comprised in the factum, that the medical examination of the victim was

conducted on 24.11.2017, and, at that time, the accused was in custody.

Therefore, when in the judgment rendered by this Court in CRA-S-346-SB-

2000 decided on 20.1.2016, titled as Avtar Singh versus State of Punjab, it

has been expostulated that the life of spermatozoa is about 72 hours.

Resultantly, the spermatozoa, as detected in the contents of Exhibit I and II,

cannot be concluded to be related to the sperm, if any, as became collected

from the accused, significantly given there being no evidence, that through a

validly drawn memo, any sperm of the accused became collected.

Final order

18. Consequently, for the reasons assigned hereinabove, this Court

finds no reason to interfere with the impugned verdict of acquittal, as made

by the learned trial Court concerned. Thus, leave to appeal against the

verdict of acquittal, as made on 8.2.2019, upon Sessions Case No. 01 of

2.1.2018, by the learned Additional Sessions Judge, Faridkot, is declined,

thus, the application, seeking leave to appeal, is hereby dismissed. The

impugned verdict of acquittal, as made by the learned trial Court, is

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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.

19. Records be sent down forthwith.

(SURESHWAR THAKUR) JUDGE

(KULDEEP TIWARI) JUDGE November 11, 2022 Gurpreet

Whether speaking/reasoned : Yes Whether reportable : Yes

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