Ved Pal vs The State Of Haryana

2023 INSC 1039 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1205 OF 2021

VED PAL & ANR. APPELLANT(S)

VERSUS

STATE OF HARYANA RESPONDENT(S)

J U D G M E N T

B.R. GAVAI,J.

1. The appeal challenges the judgment and order

dated 15th July, 2019 by which the Division Bench of

the High Court of Punjab and Haryana, Chandigarh

has affirmed the orders of conviction dated 28th

January, 2004/29th January, 2004 as recorded by

learned Additional District Judge (Adhoc) thereby

convicting the appellants for the offences

punishable under Section 376(2) (g), 342 read with

Section 34 of the Indian Penal Code (for short,

“IPC”) and sentencing them to undergo rigorous

imprisonment for a period of 10 years along with Signature Not Verified Digitally signed by Nisha Khulbey Date: 2023.12.01 17:56:55 IST Reason: fine of Rs.2,000/- each and in default of payment 2

of fine, to further undergo rigorous imprisonment

for a period of six months each. The appellants

were also sentenced to suffer imprisonment for a

period of 06 months for the commission of offence

punishable under Section 342 of the IPC.

2. The prosecution case in brief, as could be

gathered from the material placed on record is

thus:

(i) On the date of the incident i.e. on 6 th

August, 2022, there was a programme in the

village with regard to taking of ‘Kavar’.

Prosecutrix-P.W.1, who at the relevant time

was studying in 9th Class, was sleeping in her

house with her parents and her grandmother

namely, Chameli. The brothers of the

prosecutrix-P.W.1 namely Jogender and Hemant

had gone to attend the said programme in the

village. The prosecutrix was sleeping along

with her grandmother Chameli on the roof of

the ground floor of the house whereas her

parents were sleeping on the roof of the

first floor.

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(ii) At around 01:00 a.m., the prosecutrix heard

a noise of knocking at the door. Thinking

that her brothers had returned from the

village programme, she opened the door. When

the prosecutrix opened the door, she saw both

the accused, namely, Suresh and Ved Pal

standing at the door. Ved Pal caught hold of

the hand of the prosecutrix and accused

Suresh placed his hand on her mouth. After

that, both the accused took the prosecutrix

to their ‘baithak’. Accused Suresh forcibly

laid her on the cot and accused Ved Pal

placed his hand on the mouth of the

prosecutrix. Following which, accused Suresh

opened the string of her ‘salwar’ and

committed rape on the prosecutrix. After the

accused released her, the prosecutrix raised

an alarm which alerted the mother of the

prosecutrix and Simran, who is the cousin of

the prosecutrix. On seeing them coming, both

the accused ran away from the door.

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Thereafter, the mother of the prosecutrix

(P.W.2) came there and took the prosecutrix

with her. The prosecutrix told her mother

about the occurrence of the incident and on

the same day, at around 08:00 a.m., the

prosecutrix accompanied by her parents,

Simran and others went to the Police Post,

where the statement of the prosecutrix came

to be recorded. The prosecutrix was medically

examined and her statement under Section 164

of the Criminal Procedure Code, 1973 (in

short “Cr.P.C.”) was also recorded.

3. After the completion of the investigation,

charge-sheet came to be filed in the Court of

competent Judicial Magistrate First Class. Since

the case was essentially triable by the Sessions

Judge, it came to be committed to the Sessions

Court. At the conclusion of the trial, the learned

Trial Judge recorded the order of conviction as

aforesaid. In an appeal, the High Court has

confirmed the same and hence the present appeal. 5

4. Mr. Nikhil Tyagi, learned counsel appearing on

behalf of the appellants submitted that both the

Trial Court as well as the High Court have grossly

erred in recording the order of conviction. He

submitted that, there are material contradictions

between the evidence of the prosecutrix-P.W.1 and

P.W.2 (Rajwati). He further submits that, even the

evidence of the medical expert as well as the FSL

report does not support the prosecution case. He

further submitted that the case is full of

coincidences. It is submitted that, according to

the prosecution, P.W.2 (Rajwati) went to fill up

water and at the same time, she heard the cries of

the prosecutrix. He further submitted that, another

coincidence is that Simran, who is the son of the

uncle of the prosecutrix also comes at the same

time from the function and accompanies P.W.2. It is

submitted that in any case, Simran has not been

examined. He therefore submits that the order of

conviction and sentence, as recorded, is not

sustainable in law and the appellants are entitled 6

to be acquitted.

5. Ms. Ruchi Kohli, learned counsel appearing for

the State vehemently opposed the appeal. She

submitted that the learned Trial Court as well as

the learned High Court concurrently, and on correct

appreciation of the evidence, have recorded the

order of conviction which warrants no interference.

She further submits that the conviction can also be

recorded on the sole testimony of the prosecutrix.

It is submitted that the testimony of the

prosecutrix (P.W.1) is cogent, reliable and

trustworthy. In any event, the testimony of the

prosecutrix (P.W.1) is supported by the version of

P.W.2 (Rajwati). She also submits that the minor

contradictions between the evidence of (P.W.1) and

P.W.2 (Rajwati) should not be given much weightage

inasmuch as both are rustic villagers. She further

submits that the prosecutrix is 70 per cent

physically handicapped and as such, was not in a

position to resist the force used by the accused.

It is therefore submitted that, much would not turn 7

on the absence of injuries on the person of the

prosecutrix.

6. Ms. Ruchi Kohli, learned counsel appearing for

the State further submitted that the entire defence

of the appellants has been that of consent.

However, taking into consideration that the

prosecutrix at the relevant time was aged about 13

years, consent would be immaterial.

7. With the assistance of the learned counsel for

the appellants as well as learned counsel for the

State, we have scrutinized the evidence.

8. No doubt that the conviction of the appellants

under Section 376 of the IPC could be recorded on

the sole testimony of the prosecutrix if the

evidence is found to be trustworthy, cogent and

reliable. As rightly pointed out by Ms. Ruchi

Kohli, learned counsel appearing for the State, the

minor contradictions in the evidence of the

prosecution witnesses would not substantially deter

the prosecution case.

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9. However, in the present case, upon the

consideration of the entire evidence together, we

find that the prosecution has failed to prove the

case against the appellants beyond reasonable

doubt.

10. In the evidence of prosecutrix as well as in

the evidence of P.W.2, it has come on record that

there are three houses in between the house of the

prosecutrix and house of the accused Suresh, where

the incident is alleged to have taken place.

11. As such, it is clear that even according to the

prosecution, the prosecutrix was dragged from her

house to the house of accused Suresh. It is

difficult to believe that, at that time, the

prosecutrix did not make any cries/hues.

12. It is further to be noted that in the medical

evidence, the Doctor has specifically stated that

no injuries were found on the person of the

prosecutrix. Though he has opined that the

possibility of the sexual intercourse could not be

ruled out, he has also stated that the possibility 9

of intercourse earlier to the MLR cannot be ruled

out. It is further to be noted that the FSL report

further finds that no semen was found on the

clothes of the prosecutrix or on the vaginal swab.

The semen was found on the underwear of accused

Suresh.

13. It is to be noted that the accused have taken a

specific defence that there was a civil dispute

between grand-father of the appellant(s) and the

grand-father of the prosecutrix. No doubt that the

said suggestion is once denied by the prosecutrix

and on other occasion she has stated that she is

not aware about the same. Though the prosecutrix

admits the letter addressed by her to accused

Suresh, in the next blush, she states that she has

neither visited the house of the Suresh nor Suresh

has visited to her house. Taking into

consideration the fact that the both the

prosecutrix and the appellant(s) reside within the

vicinity of three houses, the said version is

difficult to believe.

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14. In the totality of the circumstances, we find

that the prosecution has failed to prove the case

beyond reasonable doubt. The accused are entitled

to benefit of doubt.

15. The impugned judgment and order dated 15th July,

2019 passed by the High Court as well as the orders

dated 28th January, 2004/29th January, 2004 passed by

learned Additional District Judge (Adhoc) are

quashed and set aside and the appeal is allowed.

16. The appellants are directed to be set at

liberty forthwith if their detention is not

required in any other case.

17. Pending applications, if any, stand disposed

of.

….........................J (B.R. GAVAI)

….........................J (PAMIDIGHANTAM SRI NARASIMHA)

New Delhi November 29, 2023