Reena Devi vs State Of Haryana And Another

CRM-A-1736-2019 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-A-1736-2019 Reserved on : 22.09.2022 Pronounced on : 30.09.2022

Reena Devi ......... Appellant Versus

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

CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA HON'BLE MR. JUSTICE JAGMOHAN BANSAL

Present: Mr.Anil Kumar, Advocate for the appellant. **** JAGMOHAN BANSAL, J.

1. The appellant, at whose complaint FIR No.191 dated

19.09.2017 under Sections 376, 354, 354-B, 506 and 509 IPC at

Police Station Kosli was registered, has preferred, along with an

application under Section 378 (4) present appeal, seeking setting

aside of judgment and order dated 01.05.2019 whereby learned

Additional Sessions Judge, Rewari (for short 'trial court') has

acquitted the respondent on the ground that prosecution has failed to

prove the guilt of accused beyond reasonable doubt.

Brief Facts:

2. The brief facts emerging from record which are necessary

for adjudication of present appeal are that the appellant is a qualified

1 of 15 ::: Downloaded on - 01-10-2022 15:13:30 ::: CRM-A-1736-2019 -2-

JBT (Junior Basic Training) and pursuing her final year course of

B.A. As per appellant, on 31.05.2017 and 02.07.2017, respondent

No.2-Satish along with his family members came to her house and a

ring ceremony was performed. On 09.08.2017, respondent called

appellant to come to Kosli and she after getting permission of her

parents went to meet respondent at Bus Stand, Kosli. The

respondent took her away on his bike to '7 days Rooms and

Restaurant, Kosli' and they spent half an hour in the said restaurant

where respondent clicked her photographs and they took cold drink.

The respondent tried to get a room in the hotel, however, staff

refused to give him room. The respondent thereafter took her away

on his bike to Kosli, Dauroli Road near BKD School where he did

obscene acts. He pressed her breast, broke string of her salwar and

inserted his fingers in her private parts. She told the respondent that

she would not establish physical relation with him till the marriage but

respondent got offended and threatened not only to kill her but also

not to marry her and then left the place. The appellant returned to

her home and on 12.08.2017 as well 14.08.2017 received calls from

respondent's mobile who threatened her to kill her. A lady called

from the mobile of respondent who claimed to be wife of the

respondent and abused her (appellant). She got frightened and

perturbed. She did not disclose this fact to her family members,

however, her mother used to ask her as to why she was keeping

disturbed and when her mother pressurized her, she disclosed her

about the entire occurrence on 17.09.2017. Her mother told the

2 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -3-

entire facts to her father who tried to contact family members of

accused, however, they did not take call of her father. On

18.09.2017, she went to Women Police Station, Jhajjar, where she

filed an application and Jhajjar Police Authorities transferred the

matter to Police Station Kosli in view of territorial jurisdiction. On

19.09.2017, she went to Kosli and apprised the police official about

the incident occurred on 09.08.2017. The lady police official brought

her to Government Hospital, Rewari, where she was medico-legally

examined.

2.1 On the basis of complaint of appellant, an FIR No.191

dated 19.09.2017 was registered under Sections 376, 354, 354-B,

506 and 509 IPC at Police Station Kosli.

2.2 On 08.11.2017, police arrested respondent who at that

time was serving Indian Army. The police after completing

investigation filed its report under Section 173 of Cr.P.C.

3. During the course of trial, prosecution examined 17

witnesses which included appellant, father of appellant, owner of

hotel, doctors and different police officials. The respondent examined

04 witnesses. The statement of respondent was recorded under

Section 313 of Cr.P.C. wherein he denied allegations of prosecution

and pleaded that he has been falsely implicated.

The prime and material witnesses of the prosecution were

appellant, her father and owner of the afore-stated hotel. The

appellant appeared before trial Court as PW11 and reiterated her

statement which at the time of registration of FIR was made before

3 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -4-

police authorities. Father of appellant appeared as PW14 and

verbatim narrated facts as narrated by appellant. Chanderdeep @

Parul owner of afore-stated hotel appeared as PW1 and deposed

that appellant and respondent came to his hotel on 09.08.2017 and

stayed there for about 15-20 minutes and enjoyed cold drink/tea and

thereafter left his hotel.

4. The trial Court framed different issues for its

consideration and came to a conclusion that prosecution has failed to

connect the accused with the commission of offence and essential

ingredients for proving charge against the respondent are not proved.

The trial Court held that it would be neither safe nor in the interest of

justice to hold the respondent guilty as there is no cogent and

convincing evidence on record to link the respondent with the crime

in question. With these findings, the trial Court acquitted the

accused from all the charges.

5. The trial court vide judgment and order dated 01.05.2019

acquitted the accused/respondent and appellant has filed present

appeal seeking setting aside of aforesaid order passed by the trial

court.

Findings of trial court :

6. The trial court while acquitting the respondent has

recorded following findings:-

(i) the respondent did not meet appellant on 31.05.2017

and 02.07.2017 when engagement ceremony was performed. The

respondent met appellant for the first time on 09.08.2017 i.e. alleged

4 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -5-

day of incident. It is not possible that a boy on his first meeting with

his fiancee would commit acts as alleged by appellant;

(ii) As per appellant as well as site plan, the incident took

place at a public place which is very near to police station, hospital

as well as busy road. It is not possible that a boy would commit

alleged act at a public place;

(iiI) The appellant and respondent are from different

villages and no relative of appellant is staying at Kosli-Dharouli Road.

It is difficult to believe that a girl for the first time visited at a road and

she memorized name of the road as well as the school located in the

vicinity;

(iv) As per appellant string of salwar of appellant was

broken, however, there is no evidence to indicate that how she got

assistance or clothing from any co-passenger and there is no

evidence of clothing having been torn or soiled;

(v) The hotelier did not produce CCTV footage and it is

difficult to believe that an owner of a hotel can disclose that a

particular couple stayed in his hotel for 15-20 minutes. It is further

relevant that Investigating Officer (PW17) has stated that as per

statement of owner of hotel, he did not see couple on the day of

incident;

(vi) The Investigating Officer did not collect location of

mobile phones used by appellant and respondent;

(vii) As per appellant, incident took place on 09.08.2017,

whereas FIR was lodged on 19.09.2017. Thus, there was delay in

5 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -6-

registration of FIR. The reason of delay advanced by appellant is not

satisfactory and believable;

(viii) During the course of cross-examination, appellant

denied the fact of calling respondent after 09.08.2017 whereas call

details record is indicating that appellant made a number of calls on

09.08.2017 as well during 10.08.2017 to 14.08.2017. The denial of

appellant is contrary to electronic record;

(ix) The father of prosecutrix disclosed that he made a

call on phone number of father of accused whereas call details

record does not show that the father of prosecutrix ever called the

father of accused/ respondent.

7. Learned counsel for the appellant contended that

statement of prosecutrix was sufficient to hold the respondent guilty.

There are categoric allegations against the respondent. The owner

of hotel has deposed that appellant and respondent came to his hotel

on 09.08.2017. Thus, meeting of both sides stands proved. The trial

Court ignoring substantial evidence has acquitted the accused.

Delay in the peculiar facts of this case was not fatal to the case of

prosecution. Thus, the judgment of trial Court needs to be set aside.

8. We have perused the record and heard arguments of

learned counsel for the appellant.

9. The conceded position emerging from record is that

family members of appellant and respondent met on 31.05.2017 and

02.07.2017. As per grounds of appeal, respondent along with his

family members came to house of prosecutrix on 31.05.2017 and

6 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -7-

02.07.2017 whereas trial Court on the basis of cross-examination of

witness has found that respondent did not meet appellant on

31.05.2017 and 02.07.2017. The engagement ceremony was

performed by family members of the respondent and he met

prosecutrix for the first time on 09.08.2017. As per deposition of

prosecutrix, she did not call the respondent after 09.08.2017 and she

got threatening calls on 12.08.2017 and 14.08.2017 whereas as per

call details record, it was appellant who made calls during

09.08.2017 to 14.08.2017. The appellant made a number of calls

from 01.08.2017 to 09.08.2017 and respondent made calls during

January' 2017 to July' 2017 on every 8th day of month. The

respondent was serving Indian Army so there was possibility that he

was getting opportunity to call on 8th day of every month. The alleged

accident took place on 09.08.2017 whereas police was informed on

18.09.2017 i.e. after the expiry of more than one month. The father

of appellant never called the father of respondent whereas he

deposed that he called father of respondent. The place where

alleged incident took place is a public place.

10. On being confronted with the facts that the alleged

incident has taken place at public place and respondent had met

appellant for the first time on 09.08.2017 and engagement ceremony

was performed in the absence of respondent, learned counsel for the

appellant expressed his inability to controvert these facts.

11. From the perusal of evidence recorded by the trial Court,

we find that the trial Court has specifically noticed that statement of

7 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -8-

prosecutrix must be given pre-dominant consideration. The trial Court

after noticing this fact has examined veracity and truthfulness of the

allegations of the prosecutrix. Though, it is settled proposition of law

that statement of prosecutrix must be given pre-dominant

consideration yet nobody in the civilised society can be implicated or

held guilty just because there is a statement of prosecutrix. The

statement of prosecutrix cannot be treated as gospel truth and the

Court has to see that she is a witness of sterling quality. If the

statement of prosecutrix is held to be gospel truth and Courts are

bound to hold someone guilty just because there is allegation by

prosecutrix, it would be travesty of justice and there would be no

need to conduct trial. The statement recorded by Magistrate under

Section 164 or police authorities under Section 161 of Cr.P.C. would

be sufficient to put a person behind the bars and hold him guilty.

We do not find substance in the arguments of the

appellant. The findings recorded by trial Court are well reasoned and

there is no substance in the allegations of prosecutrix. The Trial

Court has passed a reasoned judgment, nevertheless, we deem it

appropriate to consider the arguments and allegations of appellant.

12. The respondent did not meet appellant prior to

09.08.2017 and as per appellant, the alleged incident took place on

09.08.2017. The place of incident is a public place and it is

surrounded by hospital, police station and busy road. It is hard to

believe that a person who is specially working in Indian Army would

commit alleged act at a public place and with a girl to whom he is

8 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -9-

engaged and has met for the first time.

12.1 The prosecutrix in her cross-examination denied the fact

that she had called respondent after 09.08.2017. She further alleged

that on 12.08.2017 and 14.08.2017, she got calls from the

respondent who threatened her. As per electronic record which is not

disputed by appellant, it was appellant who called not once but a

number of times to respondent. The conclusion of call records as

noticed by trial Court is reproduced as below :-

"It is pertinent to mention here that it was prosecutrix, who made five calls out of six on 01.08.2017, all four calls on 03.08.2017, four calls out of five on 04.08.2017, both calls on 05.08.2017, all 14 and 12 on 06.08.2017 and 07.08.2017, 9 calls out of 13 on 08.08.2017, 10 out of 16 calls on 09.08.2017, one out of four on 10.08.2017, four out of seven on 12.08.2017, all five calls on 14.08.2017."

The statement of appellant that she did not make call

after 09.08.2017 was fatal to allegations of appellant especially when

she is JBT and pursuing final year of BA.

As noticed by trial Court, in Indian culture, there is always

attempt to settle the issues, if there is dispute between the children.

Attempts are always made by one or another side to get the marriage

of their children settled. There is no evidence that family members of

appellant attempted to settle the grievances and they tried to mature

the marriage of their daughter.

12.2 The appellant is placing reliance upon statement of a

9 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -10-

hotelier, who before the Investigating Officer accepted that he did not

see the boy. The hotelier did not bring CCTV footage and in the

absence of CCTV footage, it was impossible to memorise a couple who

came one month back and no special incident took place on the said

date. It is important to notice that as per appellant, r espondent tried to

take room but hotel staff refused to let out whereas there is no such

averment in the deposition of the hotelier. There is nothing on record to

indicate that why hotel staff refused to give room to the appellant.

There is clear contradiction between statement of appellant and hotelier

and statement of hotelier seems to be unbelievable.

12.3 The alleged incident took place on 09.08.2018 whereas

police was informed on 18.09.2017 and FIR was registered on

19.09.2017. The appellant during the course of trial as well learned

counsel for appellant contended that respondent threatened

appellant on 12.08.2017 and 14.08.2017 and because of fear, the

appellant did not inform her family members. It is undisputed fact

that engagement was broken on 09.08.2017 and appellant called

respondent in between 10.08.2017 to 14.08.2017, thus, there is no

question of threatening by respondent on 12.08.2017 and

14.08.2017. Had appellant been scared and suffered from alleged

incident, she must have not called the respondent. It seems that she

attempted to continue in her effort that the nuptial knot be tied

because respondent was not interested to marry her which is evident

from the fact that he was not present even at the time of engagement

and most of calls were made by appellant to respondent and not vice

10 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -11-

versa.

12.4 On the question of delay in FIR, in Harbans Kaur v.

State of Haryana, (2005) 9 SCC 195 : 2005 SCC (Cri) 1213 : 2005

SCC Online SC 454 at page 198, Hon'ble Supreme Court has held:

7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield the actual culprit and falsely implicate the accused. No evidence has been led in this regard. So far as the delay in lodging the FIR is concerned, the witnesses have clearly stated that after seeing the deceased in an injured condition, immediate effort was to get him hospitalized and get him treated. There cannot be any generalisation that whenever there is a delay in lodging the FIR, the prosecution case becomes suspect. Whether delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case, would depend upon the facts of each case. Even a long delay can be condoned if the witnesses have no motive of implicating the accused and have given a plausible reason as to why the report was lodged belatedly. In the instant case, this has been done. It is to be noted that though there was cross-examination at length, no infirmity was noticed in their evidence.

Therefore, the trial court and the High Court were right in relying on the evidence of the prosecution witnesses. 12.5 Similarly, in Baldev Singh v. State of Punjab, (2014) 12

SCC 473 : (2014) 6 SCC (Cri) 810 : 2013 SCC Online SC 875 at

page 483 Hon'ble Supreme Court has held:

17. The first question that we have to decide is whether the delay of 2 months and 21 days in lodging the FIR could make the prosecution case one which is not

11 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -12-

believable. There cannot be any doubt that delay in the lodging of the FIR often results in embellishment as well as the introduction of a distorted version of what may have actually happened, but the facts of each case have to be examined to find out whether the delay in lodging the FIR is fatal for the prosecution case.

18. In the present case, we find from the evidence of PW 3 that the terrorists were active in the State of Punjab and the police was taking action against the terrorists and in such a state of affairs, PW 3 was apprehensive of the consequences of lodging an FIR against the appellants, one of whom was a Deputy Superintendent of Police in control of several police stations and the other was a police constable. Hence, after seven members of his family were picked up on 29-10-1991, PW 3 waited for 2 months and 21 days with the hope that they would be released by the police and only after all his efforts to get them released failed, he lodged complaint on 19-1-1992 (Ext. PB).

The fact that the complainant addressed the complaint (Ext. PB) not to the police station but to the Director General of Police, Punjab, is enough evidence of the fact that PW 3 was afraid of lodging the complaint to the local police station which was under the control of the appellant Baldev Singh.

As per afore-cited judgments of Hon'ble Supreme Court,

delay in registration of FIR is not fatal in every case. The trial Court

is supposed to look into facts and circumstances which delayed

registration of FIR. If the reasons explained for delay are cogent,

delay can be ignored and prosecution story cannot be brushed aside

simply on the ground that there is delay in registration of FIR.

In the present case, the appellant and respondent had got

12 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -13-

engaged, however, engagement was snapped on 09.08.2017. The

appellant continued to call respondent upto 14.08.2017. The

appellant in her cross-examination denied the fact that criminal cases

are pending against her brother whereas her father admitted that his

sons were involved in criminal cases. Thus, the family of appellant

was not ignorant about criminal law & procedure whereas they are

well acquainted with criminal procedure. Appellant just to cover up

delay has alleged that she was threatened by respondent and due to

fear she did not disclose about alleged incident to her parents. The

trial Court has rightly concluded that there is unexplained delay in

registration of FIR and it appears that FIR was registered to spite the

boy side at a later point of time just because respondent refused to

marry appellant.

13. The Hon'ble Supreme Court has repeatedly held that

benefit of doubt ensues to accused. If two views are possible, the

benefit of doubt must be granted to accused. It has been further held

that if two views are possible, the order of acquittal should not be set

aside by High Court because there is double presumption of

innocence. The Hon'ble Supreme Court in para 39 in Dhanapal v.

State By Public Prosecutor, Madras, (2009) 10 SCC 401 while

dealing with scope of interference at appellate stage has held:

"39.The following principles emerge from the cases above:

1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court acquittal

13 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -14-

bolsters the presumption that he is innocent.

2. The power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the appellate court must give due weight and consideration to the decision of the trial court.

3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

4. The appellate court may only overrule or otherwise disturb the trial court acquittal if it has "very substantial and compelling reasons" for doing so.

5. If two reasonable or possible views can be reached--

one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused."

In the case in hand, the opinion expressed by the trial

court is not only a possible view, but also it is fair and reasonable and

cannot be termed as perverse in any manner, thus, it does not

warrant interference.

As noted above, there is always presumption of

innocence and in case of acquittal, there is double presumption. The

burden lies upon prosecution to prove the guilt beyond reasonable

doubt. The learned trial Court has passed a detailed, reasoned and

speaking judgment and we find no infirmity in the said judgment.

There is no manifest error, illegality or non-application of mind or

non-appreciation of evidence which could compel us to form an

opinion different from the opinion formed by the learned Trial Court.

14 of 15 ::: Downloaded on - 01-10-2022 15:13:31 ::: CRM-A-1736-2019 -15-

14. Finding no merit in the present appeal, we are of the

considered opinion that leave to appeal deserves to be declined and

accordingly application seeking leave to appeal as well as appeal is

dismissed.

(G.S.SANDHAWALIA) (JAGMOHAN BANSAL ) JUDGE JUDGE

30.09.2022 anju

Whether speaking/reasoned Yes

Whether Reportable No

15 of 15 ::: Downloaded on - 01-10-2022 15:13:31 :::