Manoj Kumar vs State Of Haryana
2022 Latest Caselaw 12143 P&H

CRA-D-825-DB-2012 (O&M)                                                - 1-

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                    CRA-D-825-DB-2012 (O&M)
                                    Reserved on: 22.09.2022
                                    Date of pronouncement:26.09.2022


Manoj Kumar                                                  ... Appellant
                                      Vs.
State of Haryana                                            ...Respondent


CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
              HON'BLE MR. JUSTICE N.S.SHEKHAWAT

Present:     Mr. Rahul Vats, Advocate
             for the appellant.

             Mr. Anmol Malik, Deputy Advocate General, Haryana.

                            *****
N.S.SHEKHAWAT, J.

The present appeal arises out of the judgment dated 09.08.2012

and the order dated 13.08.2012 passed by the Court of learned Additional

Sessions Judge, Palwal, whereby the present appellant was held guilty and

convicted for the commission of offence under Sections 363, 376(2)(f), 302

and 365 of the Indian Penal Code (for short 'IPC') and was sentenced in the

following manner:-

Offence under Section Sentence 363 IPC Rigorous imprisonment for a period of seven years along with fine of R.500/-. In default of payment of fine, convict shall undergo further rigorous imprisonment for one month.

376(2)(f) IPC Imprisonment for life along with fine of Rs.1,000/-. In default of payment of fine, convict shall undergo further rigorous imprisonment for three months.

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302 IPC Imprisonment for life along with fine of Rs.1,000/-. In default of payment of fine, convict shall undergo further rigorous imprisonment for three months.

365 IPC Rigorous imprisonment for a period of seven years along with fine of Rs.500/-. In default of payment of fine, convict shall undergo further rigorous imprisonment for one month.

The factual matrix in which the appellant came to be

prosecuted and convicted has been set out in detail in the judgment passed

by the learned trial Court. We need not, therefore, recapitulate the same all

over again except to the extent it is required for the disposal of the instant

appeal by us.

Briefly stated, the FIR in the instant case was lodged on the

basis of the statement of PW-2 Sunil Kumar, father of the victim, who met

SI/SHO Ravinder Singh PW-12 and submitted one application Ex.P-2. As

per the said application, he was a labourer by occupation. The

appellant/accused used to work with him about 2-3 years ago. At about

6.00 p.m. on 30.04.2009, the appellant came to his house and kidnapped his

minor daughter 'A' (name withheld in view of the provisions contained in

Section 228-A of the IPC and in view of the law laid down in the judgment

of Hon'ble the Supreme Court in State of Karnatka Vs. Puttaraja, 2004(1)

R.C.R. (Crl.) 113), aged about 9 years. The accused took her away on his

bicycle and his son Manish PW-3 had seen the appellant, while taking away

his daughter 'A'. Thereafter, he and his son Manish made their endeavour

to trace out his daughter, but could not succeed. In the early morning on

01.05.2009, the complainant came to know that the dead body of his

daughter 'A' was lying in the fields of Narbir resident of Kithwari. He

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reached the spot and found the dead body of his daughter in nude condition

lying there. He raised the suspicion that she had been raped and then

murdered by way of strangulation. Her clothes and slippers (chappal) were

lying nearby and he prayed for action against the accused. On the basis of

his statement, the FIR Ex.PW6/B was registered at Police Station Camp,

Palwal under Sections 363, 376(2), 302 of IPC against the present appellant

and the police machinery was set into motion.

SI/SHO Ravinder Singh PW-12 reached the place of occurrence

and prepared the rough site plan Ex.PW-12/B. He recorded the statements

of the witnesses under Section 161 Cr.P.C. He also got prepared scaled site

plan from the draughtsman and also prepared the Inquest Report Ex.PW8/C.

Thereafter, the dead body was sent to General Hospital, Palwal, for

conducting the postmortem examination. The appellant was apprehended

by the police in the instant case on 08.05.2009, who suffered his disclosure

statement Ex.PW11/A, in which, he disclosed that he had kept concealed a

bag in the corner of the fields of maize and parked his bicycle on the

Railway Station, Palwal, which was used in the commission of offence.

After completion of the investigation, PW-12 Ravinder Singh SI/SHO

prepared the report under Section 173 Cr.P.C. and forwarded the same for

trial.

At this stage, it requires to be mentioned that the postmortem

examination on the dead body of the victim 'A' aged 9 years, was conducted

by PW-8 Dr. Sachin and the other Members of Medical Board on

01.05.2009. The postmortem report was exhibited as Ex.PW8/B and the

Inquest Report was exhibited as Ex.PW8/C. The Medical Board noticed

several injuries on the person of the deceased and the same have been

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reproduced below:-

- 0.5x 0.5 cm. Lacerated wound, Reddish Brown colour present over just below right lower eyelid. On dissetion extravasation of blood present, L.W. 0.5 x 0.5 cm. Present over Lt. Upper eyelid. Reddish blush swelling present over left lower eyelid.

- Blush swelling present over right cheek.

- Reddish brown abrasion present 4.0 x 2.0 cm over right side of neck antrolaterally.

- Multiple reddish abrasion 1.0 x 0.3 cm. Present superiorly and laterally rightside of to the abovesaid injury.

- Reddish brown abrasion 5.0 x 2.0 cm. Over anterior surface of neck going obliquely upword to the left side of neck with tapering at left side.

- Two reddish abrasion 1.0 x 1.0 cm. Present just below Rt. Nipple.

- Multiple abrasion present over anterio internal aspect of both upper limbs.

- Reddish blue contusion present over B/L medical aspect of knee.

- Multiple abrasion present over inner surface of B/L labia majora. Hymen found ruptured. Clotted blood present along with margin of hymen. Blood clot present inside the vagina along with hemorrhagic fluid blood stained forth coming.

- On cutting trachea fracture of thyroid and hyoid seen."

As per report of the Medical Board, the cause of death in the

instant case was asphyxia due owing to throttling. However, the viscera and

blood from the heart and vaginal swabs were sent to the laboratory for

chemical examination. As per the FSL report, EX.P-4, no common poison

could be detected in the viscera sent to FSL, Madhuban. However, as per

the report Ex.P-5 of FSL Madhuban, human semen was detected on the

underwear of the victim 'A'.

During the course of trial, the prosecution examined 12

witnesses to support its case. The appellant was examined by the trial Court

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under Section 313 of Cr.P.C. and he had taken a stand that he was not

present on the date of occurrence and had gone to attend the marriage of his

cousin at village Siyarol in Uttar Pradesh. He had not kidnapped the

deceased/victim and the case had been falsely registered against him in

collusion with the police. To prove his innocence, the appellant examined

two witnesses, namely, DW-1 Suresh and DW-2 Pappu. After due

appreciation of the evidence, the trial Court convicted and sentenced the

appellant as stated above.

We have heard learned counsel for the parties at length and

have marshalled the evidence placed on record by the prosecution as well as

the defence.

The learned counsel for the appellant had vehemently contested

the case of the prosecution by stating that the case of the prosecution is

based on hearsay evidence. Still further, the child witness PW-3 Manish

had been falsely introduced by the prosecution and no weightage could be

given to his statement. There was only one independent witness i.e. PW-4

Sham Sunder, who had not supported the case of the prosecution. Further,

the case of the prosecution is based on circumstantial evidence and the

prosecution had utterly failed to complete the chain of link evidence against

the appellant on the basis of theory of last seen evidence. Furthermore, the

appellant had been successful in proving the plea of alibi through the

examination of two witnesses i.e. DW-1 Suresh and DW-2 Pappu and he

was attending the marriage of his cousin in Uttar Pradesh. In support of the

same, the marriage card EX.DA was also produced. The learned counsel for

the appellant also contended that the appellant was entitled for benefit of

doubt also in view of the fact that the prosecution had failed to prove the

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motive also and prayed for acceptance of appeal.

The submissions made by learned counsel for the appellant

have been vehemently opposed by learned State counsel and while referring

to the testimonies of various prosecution witnesses, he prayed for dismissal

of the appeal.

Having heard the rival contentions of learned counsel for both

the parties, we are unable to differ from the findings recorded by the learned

trial Court.

Learned counsel for the appellant had vehemently contended

that the entire prosecution case is based on hearsay evidence and was liable

to be rejected outrightly. Even PW-2 Sunil was the father of the

victim/deceased 'A', whereas, PW-3 Manish (child witness) was the brother

of the victim and their testimonies are liable to be rejected also on the

ground that both of them were interested witnesses.

We have considered the said submissions in the light of the

evidence led by the prosecution in the shape of the testimonies of PW-2

Sunil and PW-3 Manish. The criminal prosecution was initiated at the

instance of PW-2 Sunil. He clearly stated that he reached home at about

6.00 p.m. on 30.04.2009 and after reaching, his son Manish had informed

that the appellant had taken away the victim 'A' on his bicycle, while his

son was playing near a road. The complainant presumed that the appellant

had taken his daughter 'A' for some work or for making some purchases

from the market and she would return. However, when she did not return,

he went to the house of the appellant to enquire about his daughter 'A'. On

this, the family members of the appellant told him that even he had not

returned home as well. He informed them that his daughter had been taken

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away by the appellant. The family members of the appellant gave him an

assurance that they would send his daughter to his home as and he returned

with his daughter. However, neither Manoj nor his daughter 'A' returned in

night and at about 8.30 a.m. on 01.05.2009 i.e. on the next day itself, the

matter was reported to the police by the complainant. Thus, it is apparent

that the FIR was registered by the complainant with promptitude, by

levelling specific allegations against the present appellant. The complainant

was examined as PW-2 before the trial Court and was subjected to incisive

cross-examination and he withstood the same. It is apparent that PW-2

Sunil, complainant had no reason to depose falsely against the appellant or

to falsely name him as a culprit in the instant case. Late in the evening on

30.04.2009, he was informed about the taking away of his daughter by the

appellant and he reported the matter in the early morning on 01.05.2009,

without any delay. Even we have gone through the testimony of PW-2

Sunil and found his testimony to be truthful and the same inspires

confidence of the Court. Similarly, the prosecution examined PW-3

Manish, aged about 11 years, who had seen the appellant taking away his

sister/ victim 'A' on his bicycle in the evening on 30.04.2009. Even the

appellant was known to him, because the appellant had been coming to their

home in connection with his work. Even the said witness had deposed the

facts consistently and his sole testimony was sufficient to prove the guilt of

the appellant. Even during his cross-examination, nothing material could be

taken out by the defence and his statement was found worthy of credence by

us.

Learned counsel for the appellant earnestly contended that both

the witnesses i.e. PW-2 Sunil and PW-3 Manish were interested witnesses

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and were closely related to the victim 'A' being father and brother

respectively.

We have considered the said submission and found that the

testimonies of the said two witnesses could never be rejected on the ground

that they were closely related to the victim 'A'. In fact, PW-3 Manish was

the most natural witness and the appellant was known to him. Even he was

the brother of the victim and his presence near the place of occurrence was

natural. Still further, even he was subjected to cross-examination and his

testimony was found worthy of placing reliance and was consistent. Still

further, no reason for falsely implicating the appellant or any ill-will on the

part of the said witnesses has been suggested to both the prosecution

witnesses i.e. PW-2 Sunil and PW-3 Manish. Even in his statement under

Section 313 Cr.P.C., the appellant has not offered any explanation with

regard to his alleged false implication in the instant case. In fact, PW-3

Manish had seen the appellant taking away the victim 'A' on his bicycle,

immediately prior to the commission of offence. When PW-2 Sunil went

to their house to complain against the appellant, he was also found missing

from there and did not return home that night.

It has been held by the Hon'ble Supreme Court in the matter of

"Ganpat Singh Vs. The State of Madhya Pradesh, 2017 (4) R.C.R.

(Criminal), 149", as under:-

"9 There are no eye-witnesses to the crime. In a case which

rests on circumstantial evidence, the law postulates a two-fold

requirement. First, every link in the chain of circumstances

necessary to establish the guilt of the accused must be

established by the prosecution beyond reasonable doubt.

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Second, all the circumstances must be consistent only with the

guilt of the accused. The principle has been consistently

formulated thus:

"The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence". See Sharad Birdhichand Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 Sarda v. State of Maharashtra, (1984) 4 SCC 116; Ramreddy Rajeshkhanna Reddy v. State of Andhra Ramreddy Rajeshkhanna Reddy v. State of Andhra Pradesh, 2006(2) RCR (Criminal) 462 : (2006) 10 SCC 172 Pradesh, 2006(2) RCR (Criminal) 462 : (2006) 10 SCC 172; Trimukh Maroti Kirkan v. State of Maharashtra, (2006) Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 10 SCC 681; Venkatesan v. State of Tamil Nadu, 2008(3) Venkatesan v. State of Tamil Nadu, 2008(3) RCR (Criminal) 563 : (2008) 8 SCC 456 RCR (Criminal) 563 : (2008) 8 SCC 456; Sanjay Kumar Jain Sanjay Kumar Jain v. State of Delhi, 2011(1) RCR (Criminal) 270 : (2011) 11 v. State of Delhi, 2011(1) RCR (Criminal) 270 : (2011) 11 SCC 733 SCC 733; Madhu v. State of Kerala, 2012(5) RCR Madhu v.

State of Kerala, 2012(5) RCR (Criminal) 520 : (2012)

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2 SCC 399 (Criminal) 520 : (2012) 2 SCC 399; Munna Kumar Munna Kumar Upadhyaya @ Munna Upadhyaya v. State of Andhra Upadhyaya @ Munna Upadhyaya v. State of Andhra Pradesh, (2012) 6 SCC 174 Pradesh, (2012) 6 SCC 174; Vivek Kalra v. State of Vivek Kalra v. State of Rajasthan, 2013(2) RCR (Criminal) 190 : 2013(2) Recent Rajasthan, 2013(2) RCR (Criminal) 190 : 2013(2) Recent Apex Judgments (R.A.J.) 40 : (2014) 12 SCC 439 Apex Judgments (R.A.J.) 40 : (2014) 12 SCC 439."

10. Evidence that the accused was last seen in the company

of the deceased assumes significance when the lapse of time

between the point when the accused and the deceased were

seen together and when the deceased is found dead is so

minimal as to exclude the possibility of a supervening event

involving the death at the hands of another. The settled

formulation of law is as follows:

"The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases". See Bodh Raj @ Bodha v. State of Jammu and Kashmir, (2002) 8 SCC 45 Bodha v. State of Jammu and Kashmir, (2002) 8 SCC 45; Jaswant

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Gir v. State of Punjab, 2006(2) RCR (Criminal) Jaswant Gir v. State of Punjab, 2006(2) RCR (Criminal) 202 : (2005) 12 SCC 438 202 : (2005) 12 SCC 438; Tipparam Prabhakar v. State of Tipparam Prabhakar v. State of Andhra Pradesh, 2010(5) RCR (Criminal) 574 : (2009) 13 Andhra Pradesh, 2010(5) RCR (Criminal) 574 : (2009) 13 SCC 534 SCC 534; Rishi Pal v. State of Uttarakhand, (2013) 12 SCC Rishi Pal v. State of Uttarakhand, (2013) 12 SCC 551; Krishnan v. State of Tamil Nadu, 2014(4) Recent Krishnan v. State of Tamil Nadu, 2014(4) Recent Apex Judgments (R.A.J.) 454 : (2014) 12 SCC 279 Apex Judgments (R.A.J.) 454 : (2014) 12 SCC 279; Kiriti Pal v. State of West Bengal, 2016(1) RCR (Criminal) 617 : Pal v. State of West Bengal, 2016(1) RCR (Criminal) 617 : 2016(1) Recent Apex Judgments (R.A.J.) 124 : (2015) 11 2016(1) Recent Apex Judgments (R.A.J.) 124 : (2015) 11 SCC 178 SCC 178; State of Karnataka v. Chand Basha, 2015 (4) RCR State of Karnataka v. Chand Basha, 2015(4) RCR (Criminal) 718 : 2015(5) Recent Apex Judgments (R.A.J.) (Criminal) 718 : 2015(5) Recent Apex Judgments (R.A.J.) 236 : (2016) 1 SCC 501 236 : (2016) 1 SCC 501; Rambraksh v. State of Rambraksh v. State of Chhattisgarh, 2016(3) RCR (Criminal) 330 : 2016(3) Chhattisgarh, 2016(3) RCR (Criminal) 330 : 2016(3) Recent Apex Judgments (R.A.J.) 652 : (2016) 12 SCC 251 Recent Apex Judgments (R.A.J.) 652 : (2016) 12 SCC 251; Anjan Kumar Sharma v. State of Assam, 2017(3) RCR Anjan Kumar Sharma v. State of Assam, 2017(3) RCR (Criminal) 386 : 2017(3) Recent Apex Judgments (R.A.J.) (Criminal) 386 : 2017(3) Recent Apex Judgments (R.A.J.) 555 : 2017 (6) SCALE 556. 555 : 2017 (6) SCALE 556."

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Tested on the touch-stone of above said principles of law, we

find that the testimonies of above said two witnesses do not suffer from any

infirmity and the trial Court had rightly correctly placed reliance on the said

two testimonies, which were duly corroborated by the other prosecution

evidence. In the instant case, the deceased/victim 'A', who was aged about

9 years, was not only brutally killed, but was also subjected to forceful rape

in the most barbaric manner, which is evident from the injuries suffered by

her on her person (which have been reproduced above). Even the

prosecution examined PW-8 Dr. Sachin, who had clearly opined that the

cause of death in the instant case was asphyxia due to throttling. Even as

per the FSL report prepared by FSL, Madhuban, Ex.P5, human semen was

detected on the underwear of the victim 'A', who was a minor aged about 9

years only.

In the instant case, the investigation was conducted by PW-12

SI/SHO Ravinder Singh, in whose presence, the appellant suffered his

disclosure statement and stated that he had kept concealed a bag in the

corner of the fields of maize and had parked his bicycle on Railway Station,

which was used in the commission of crime. In pursuance of his disclosure

statement, the appellant led the police party at the place pointed by him and

the recoveries were effected.

In the instant case, the learned counsel for the appellant

vehemently contended that the appellant was not present at the place of

occurrence and had gone to attend the marriage of his cousin in Uttar

Pradesh. To buttress his argument, he examined DW-1 Suresh and DW-2

Pappu. As per the said witnesses, a dinner party was held on 30.04.2009 on

the occasion of marriage of his nephew, Harkesh and the appellant allegedly

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remained in village Sahrol, District Aligarh (U.P.) from 30.04.2009 to

03.05.2009 and the marriage card was exhibited as Ex.DA. However, in

cross-examination, the DW-1 Suresh admitted that in the marriage card,

there was no mention of the name of the present appellant. He admitted that

Harkesh, the bridegroom was his cousin in relation and he was present in

the marriage, but he did not go in baarat, which is unbelievable. He

admitted that the photographs were clicked at the lagan ceremony in the

village, but he had not seen the photographs as well as the video film which

was taken in the lagan ceremony. Even DW-2 Pappu also deposed on

similar lines and apparently a false defence was projected by the appellant

before the trial Court. The defence had miserably failed in proving the plea

of alibi and the testimonies of the said two witnesses are liable to be

rejected outrightly. At this stage, it is observed that taking of a false defence

by the appellant would also serve as an additional link in the chain of

circumstances, which unerringly established the guilt of the appellant

beyond any doubt.

The child rape cases are the cases of worst form of lust for sex,

where children of tender age are not even spared in the pursuit of sexual

pleasure. There cannot be anything more obscene, diabolical and barbaric

than this. It is a crime not only against the society, but against the entire

humanity. Many of such cases are not brought to the light because of the

fact that the social stigma is attached thereto. According to some surveys,

there has been a steep rise in the child rape cases. The children need more

care and protection not only by the parents and guardians, but also by the

Courts and society at large. In such cases, the responsibility is equally there

on the shoulders of the Court so as to provide proper legal protection to

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these minor victims. The children are natural resource of our country and

are also country's future. In our country, a girl child is in a very vulnerable

position and one of the modes of her exploitation is rape beside other modes

of sexual, emotional and financial abuse. These factors require a different

approach to be adopted towards such victims. The overturning of a well

considered and well analysed judgment of the trial Court on the grounds of

minor inconsistencies in the statements of the witnesses, when the case

against the appellant otherwise stood established beyond reasonable doubt,

was not called for. Minor improvements or inconsistencies in the statements

of truthful witnesses, who have been examined after a long lapse of time,

are wholly insignificant. Having played with the life of a minor child aged

about 9 years, which has been proved by the prosecution by leading

unimpeachable and cogent evidence, we find no ground to interfere with the

impugned judgment and order passed by the Court of learned Additional

Sessions Judge, Palwal and uphold and affirm the same.

The appeal is accordingly dismissed.

Pending application, if any, is also disposed off, accordingly.

Case property, if any, be dealt with, and destroyed after the

expiry of period of limitation. The trial court record be sent back.

                                                    (SURESHWAR THAKUR)
                                                           JUDGE


                                                         (N.S.SHEKHAWAT)
26.09.2022                                                     JUDGE
hemlata
                   Whether speaking/reasoned     : Yes
                   Whether reportable            : Yes




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