CRA No.459-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.459-SB of 2001 Date of decision : December 20, 2010 Surender Singh ...Appellant Versus State of Haryana …Respondent CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN **** Present : Mr. Sudhir Mittal, Advocate, for the appellant. Mr. Kshitij Sharma, AAG, Haryana. **** JITENDRA CHAUHAN, J. (ORAL) 1. The appellant has come in appeal assailing the judgment and order dated 28/30.3.2001 (hereinafter referred to as the ‘impugned judgment’) passed by the learned Additional Sessions Judge, Hisar (hereinafter referred to as the ‘trial Court’) whereby he has been convicted for the commission of offence punishable under Sections 363 CRA No.459-SB of 2001 -2- and 366 of IPC and awarded sentence to undergo rigorous imprisonment as under:- Under Section 363 IPC To undergo rigorous imprisonment for a period of three years and a fine of `1000/- or in default, to further undergo rigorous imprisonment for a period of two months Under Section 366 IPC To undergo rigorous imprisonment for a period of five years and a fine of `2,000/- or in default, to further undergo rigorous imprisonment for a period of four months However, both the substantive sentences were ordered to run concurrently. 2. Brief facts of the case may be noticed. On 21.09.1998, the complainant, Kailash, (PW6), moved an application, Ex.PB, before ASI Santa Singh, who was present at the Bus Stand, Sekh Pura, along with other police officials. It was stated in the application, Ex.PB, that on 15.09.1998, when he (complainant) was returning back from his duty, his wife met him near the Bus Stand, Hansi, and told him that his daughter (the prosecutrix), who was aged about 14/15 years, had been missing from the house for the last two hours. On reaching his house, he searched for his daughter and made enquiries from his children as to who had visited his house. The complainant was told by his children that accused-Surender, who was brother-in-law of the brother-in-law of CRA No.459-SB of 2001 -3- the complainant, had visited their house. Thereafter, the complainant went to the Village of accused-Surender and on enquiry, the villagers told him that the accused and his mother had been missing from the village since 15.9.1998. On suspicion of his daughter being kidnapped by the accused, the complainant tried to search his daughter at different places, but in vain. 3. On the basis of this application, formal FIR Ex.PB/1, was recorded by HC Balbir Singh. The investigation was conducted by ASI Santa Singh and statements of the witnesses were recorded by him. On 16.12.1998, accused-guddi was arrested. Thereafter, the investigation was handed over to ASI Jai Narain. 4. On 24.3.1999, accused-Surender and the prosecutrix were apprehended at Railway Station, Hisar Cantt. and both of them were got medico-legally examined. The prosecutrix identified the place where she was raped and accordingly, the site plan, Ex.PK, was prepared. 5. On completion of the investigation, final report under Section 173 Cr.P.C. was prepared and upon its presentation, the case was committed to the Court of Sessions. 6. The accused were charged for the commission of offence punishable under Section 363, 366 and 376, IPC to which they pleaded not guilty and claimed trial. 7. In order to bring home guilt to the accused, the prosecution examined Sub Inspector Khairati Lal as PW1; Raju, Draftsman, as CRA No.459-SB of 2001 -4- PW2; HC Balbir Singh as PW3; Dr. K L Shrivastav as PW4; Constable Shamsher Singh as PW5; Kamla, wife of complainant-Kailash, as PW6; Kailash, the complainant, as PW7; the prosecutrix as PW8; HC Subhash Chander as PW9; Dr. Usha Kalra as PW10, Rameshwar son of Budh Ram, as PW11; ASI Santa Singh as PW12; and ASI Jai Narain as PW13. 8. When examined under Section 313 Cr.P.C., the accused denied all the allegations leveled against them and pleaded innocence. It was also submitted that the accused-Surender and the prosecutrix had a love affair with each other and Surender never persuaded her to leave her house. 9. After hearing learned counsel for both the parties and perusing the material evidence on record, the learned trial Court, while acquitting the other co-accused, convicted and sentenced accused- Surender (herein the appellant), as indicated at the outset of this judgment. 10. Learned counsel for the appellant has submitted that after some time of the occurrence, the appellant as well as the prosecutrix, got married and they are residing with their respective families. The learned counsel has submitted that the appellant has already undergone 10 months and 01 day of custody and has suffered protracted trial of more than 10 years. Sending him to jail at this stage would be a harsh step and would revive the hostilities and adversely affect the matrimonial lives of the appellant as well as the prosecutrix. He has CRA No.459-SB of 2001 -5- further submitted that at the time of occurrence, she was more than 16 years of age. He has also referred to the love letters, Ex.21 to Ex.38 and photographs, Ex.D1 to D20, on record. He has further submitted that the appellant and the prosecutrix stayed together for about 8-9 months but the prosecutrix never made any attempt to bring it to the knowledge of the people residing in the neighbourhood. He has also referred to the material improvements in the statement of the prosecutrix. However, learned counsel has fairly stated that he does not press the appeal on its merits and has prayed for taking a lenient view in the matter of sentence. 11. On the other hand, learned counsel for the State has submitted that the case against the appellant is proved beyond reasonable doubt and has prayed for maintaining the judgment and order passed by the learned trial Court. 12. I have heard learned counsel for the parties and perused the record. 13. The appellant was charged under Sections 363, 366 and 376 IPC but was convicted under Sections 366 and 363 IPC only. As the prosecutrix was married immediately after the occurrence, it appears that she had attained the age of discretion and the letters and the photographs on record, suggest that they had some affair. However, in view of the statement made by learned counsel for the appellant, this Court is not inclined to go into the merits of this case. CRA No.459-SB of 2001 -6- 14. Admittedly, both the appellant and the prosecutrix have got married. I find substance in the submission of the learned counsel for the appellant that if the appellant is sent to jail at this stage, it would not only revive the hostilities which stand blunted with the passage of time, but would also affect the matrimonial life of the appellant as well as the prosecutrix. It would also adversely affect the young children of both the families, which in my opinion, is avoidable. 15. In the circumstances, the conviction of the appellant under Sections 366 and 363 IPC, is maintained. However, the sentence of imprisonment is reduced to the period already undergone and the sentence of fine is enhanced to `10,000/- over and above the fine already paid by the appellant. The enhanced amount of fine shall be paid to the complainant as compensation, within three months from the date of receipt of a certified copy of this order. In the event of failure to deposit the enhanced fine, this appeal shall be deemed to have been dismissed. 20.12.2010 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter : Yes / No