Criminal Appeal No. 102-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 102-SB of 1995 Date of Decision: 12.05.2009 1. Rajesh son of Ranjit, driver, resident of Rohtak. 2. Mahabir son of Ram Singh, agriculturist, resident of village Nindana. 3. Mohinder Singh son of Baldev Singh, Taxi Driver, resident of Rohtak. 4. Mahabir Singh son of Kali Ram, businessman, resident of Khairpur. ... Appellants Versus The State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sudhir Sharma, Advocate, for appellants No. 1 and 2. Appellant No. 3, has already demised. Mr. N.S. Shekhawat, Advocate, for appellant No. 4. Mr. P.S. Sullar, Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgement of conviction dated 28.01.95, and the order of sentence dated 31.01.95, rendered by the Court of Additional Sessions Judge, Rohtak, vide which, it Criminal Appeal No. 102-SB of 1995 2 convicted the accused, for the offences, punishable under Sections 363 and 366 of the Indian Penal Code, and sentenced them, to undergo rigorous imprisonment, for a period of three years each, and to pay a fine of Rs. 20,000/- each, and in default thereof, to further undergo rigorous imprisonment, for a period of two years each under Section 366 of the Indian Penal Code only. Ninety percent of the amount of fine recovered was ordered to be given to the prosecutrix (name not being mentioned, in view of the pronouncement of the Apex Court). 2. The gist of the prosecution case, is that, Ram Saran Dass, prosecution witness, alongwith his niece i.e. the prosecutrix, attended a marriage function on 06.05.1992, in the services Club, Rohtak, hosted by one Sushil Gakhar. Both of them left the function at about 10.00 P.M, for their house. When they reached near the house of Mr. Chawla a Regional Manager of a Bank, in Shakti Nagar, a dark blue coloured Maruti Van bearing No. DL-5C-6287 suddenly stopped near them. The engine of the Maruti Van was on, with one person, sitting on the driving seat. Three persons alighted from the van, wielding knives, and forcibly lifted Manju Bala, and put her into the Van, after pushing Ram Saran Dass, aside. One of the lifters shouted “Mahinder speed up the vehicle, some persons are coming from the other side.” Ram Saran Dass was, however, capable of seeing the faces of the three lifters under the nearby street light. The van left instantaneously with the three lifters and the prosecutrix. Ram Saran Dass, raised alarm, upon which, many persons including Ramesh Kumar, came to that place. Some of them had conveyance like motorcycle or scooter. They started Criminal Appeal No. 102-SB of 1995 3 for searching the van. Ram Saran Dass scribed an application and started for reporting the matter at the Police Station, when he met a Police party, in a jeep, near Ashoka Cinema and he presented his application exhibit PA to Pyare Lal, Assistant Sub Inspector, on the basis whereof, first information report, exhibit PA/2 was recorded. Pyare Lal, went to the spot alongwith Ram Saran Dass, complainant, and prepared the site plan exhibit PM. After making enquiries from the persons who were found present at the spot, Pyare Lal, Assistant Sub Inspector, started searching the culprits and the prosecutrix, in his jeep. The Police party headed by Pyare Lal, reached Man Sarover Park, on Sonepat Road, near the water works, in the area of Rohtak town, at about 12.30 midnight, where they laid a picket. Sube Singh Head Constable, Raj Kumar, Assistant Sub Inspector, and Amarjit, Head Constable alongwith other Police Officials also reached there. At about 1.00 A.M. on the same night, the said Maruti Van was seen coming from the side of Rohtak City. The road was blocked by parking a jeep, in the middle of the same. The Maruti Van was got stopped. The moment Pyare Lal, opened its widow, all the four culprits, came out of the van, and tried to run away. The prosecutrix was also present in the same van. She was identified by Ram Saran Dass, complainant. Pyare Lal, Assistant Sub Inspector, Raj Kumar, Assistant Sub Inspector, and other Police Officials, chased the aforesaid accused, while they were running. While being followed by the Police, all the accused fell on the nearby barbed wire fencing of the water works. Pyare Lal, Assistant Sub Inspector, apprehended Rajesh, accused, Raj Kumar, Assistant Sub Criminal Appeal No. 102-SB of 1995 4 Inspector, apprehended Mahabir, accused, Head Constable Amarjit apprehended Mahabir son of Ram Singh, accused, and Head Constable Sube Singh, apprehended Mohinder, accused. The personal search of all the accused was conducted by the aforesaid Police Officials, who had apprehended them. Spring actuated knives, from the possession of each of the accused, were recovered, on the basis whereof, separate cases were registered. The van was also searched. The prosecutrix was taken out of the Van. Broken pieces of bangles, a lady wrist watch and one chappal were recovered from the van. All the articles were converted into a parcel, duly sealed with the seal PL and taken into possession. The seal was handed over to Ram Saran Dass, prosecution witness. All the aforesaid recovered articles were produced before the Court. The statement of the prosecutrix was recorded. Site plan PN, of the place of recovery was prepared. The prosecutrix as well as the accused were taken to Civil Hospital, Rohtak, where all the accused were got medico-legally examined, vide application PO, PP, PQ, and PR, respectively. The under-wears of all the accused were taken into possession alongwith the sample of their pubic-hair by the doctor who examined them. The same were converted into parcels, and handed over to Pyare Lal, Assistant Sub Inspector, who took the same into possession, vide memo PS. The prosecutrix could not be examined, in Civil Hospital, Rohtak, owing to the non-availability of a lady doctor. She was, however, got examined at E.S.I. Dispensary. The prosecutrix was then handed over to the complainant and all the accused were sent to jail. The birth certificate PL of the prosecutrix was also obtained, Criminal Appeal No. 102-SB of 1995 5 showing her date of birth as 25.04.78. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 363 and 366 of the Indian Penal Code, was framed against the accused, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined Ram Saran Dass, complainant (PW1), uncle of the prosecutrix, who deposed in terms of the prosecution version, as stated above, while narrating the facts of the case, in para No. 2 of the judgement. 5. Dr. Deepika Gupta (PW2), examined the prosecutrix in ESI Dispensary, on 07.05.92. She stated that there was a contusion at left cheek and an abrasion on the dorsum of right hand as also an abrasion on right ankle and other parts of right iliac bone of the prosecutrix. She further stated that according to the statement of the prosecutrix, she had not been sexually assaulted by the accused and, thus, she had not permitted her internal examination. 6. Constable Rajinder Singh (PW3), Head Constable Dharm Singh (PW7), and Head Constable Sham Narain (PW8), formal witnesses, tendered affidavits PD, PH, and PJ, respectively, in their evidence. 7. Ramesh Kumar (PW4), an eyewitness to the occurrence, also deposed in terms of the prosecution version. Criminal Appeal No. 102-SB of 1995 6 8. The prosecutrix while appearing as (PW5), also deposed in terms of the prosecution version. 9. Ram Mehar (PW6), prepared scaled site plans PP and PG. 10. Ram Ratti (PW9), an official from the Registrar of Deaths and Births of the Municipal Committee, Rohtak, proved the birth certificate PL of the prosecutrix. 11. Pyare Lal, Assistant Sub Inspector (PW10), the Investigating Officer, conducted the investigation. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 12. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by them that Mahabir son of Kali Ram, one of the accused, had consumed liquor against medical advice, upon which, his condition became serious. Rajesh, Mahabir son of Ram Singh, and Mahinder, took the ailing Mahabir son of Kali Ram, in a rickshaw, were going towards Medical College and Hospital, Rohtak, and when they reached opposite the Liberty Cinema, they saw a mob on the roadside, which had blocked the passage. They got down from the rickshaw and attempted to persuade the mob, to let their rickshaw go, as the condition of Mahabir son of Kali Ram, was quite serious. They learnt that certain miscreants had teased and man-handled the prosecutrix, and her mother and, on their protest, a mob had collected and were assaulting those miscreants. According to them, a confusion had arisen and the miscreants had Criminal Appeal No. 102-SB of 1995 7 slipped away leaving behind van No. DL-5C-6287, parked near the Cinema gate, and in the same confusion, the mob mistook them to be the miscreants, and took them by force, to the Police Station Civil Lines, Rohtak. It was further stated by them, that the Police gave them severe beatings. All the four of them had threatened the Police Officials that they would take appropriate action against them for their rash and in-human act. It was further stated by them that the prosecutrix and her mother had told the Police that the accused were not the miscreants. It was further stated by them, that some other eye-witnesses had also protested with the Police. Since the Police had given them beatings, it (Police) had to rope them in this false case. Ram Saran Dass, the uncle of the prosecutrix, was summoned from his house, because the mother of the prosecutrix, had refused to lodge a false report, as required by the Police. Ram Saran Dass, complainant, being an ex-policeman understood the problems of the Police and presented a false complaint. It was further stated by them, that the Police did not touch the real culprits, despite having established their identity. 13. The accused, in their defence, examined Shri Niwas Sharma (DW1), who produced certain records of Medical College and Hospital, Rohtak, 14. Dr. S.P. Chugh (DW2), deposed that on 14.05.92, Mahinder Singh, accused, was referred by the District Jail, Rohtak, with an injury on his left leg, and that he had referred that patient for orthopedic opinion. 15. Dr. Kasturi Mohan Batra (DW3), deposed that he being a Criminal Appeal No. 102-SB of 1995 8 Post Graduate student in Orthopedics Department, in the Medical College and Hospital, Rohtak, on 14.05.92, had treated Mahinder Singh, for a debridge and inflated wound on his left leg. 16. Dr. Dharambir (DW4), deposed that Mahinder Singh, accused, had a swelling and an injury on his left leg, on 13.05.92, when he was admitted in Jail, as an under-trial, and that he was referred to Medical College and Hospital, Rohtak, on 14.05.92. However, Mahabir son of Kali Ram, was not found having any injury at the time of his admission in the jail, on 14.05.92. 17. Dr. Ashwani Kumar Dalal (DW5), deposed that Mahinder Singh, accused, remained admitted in the Medical College and Hospital, Rohtak, from 08.04.92 to 11.04.92. 18. Yaspal Jain, Hand Writing Expert (DW6), deposed that the paper used in the preparation of exhibit P4, PF, PC, PO, PP, PQ, and PR, were drawn from the same roll of paper cut into bigger sheets. He proved his report exhibit DE. 19. Mahinder Singh, accused, also produced copies of judgements exhibit DD and DE, while Mabahir son of Kali Ram, produced medical record marks A to G. 20. Dr. G.K. Mathur (DW7), was examined to prove the medico-legal reports of all the accused which were prepared by him, on 07.05.92. Thereafter, the accused closed their defence evidence. 21. After hearing the Counsel for the parties, and, on going through evidence, on record, the trial Court convicted and sentenced the accused, as stated above. Criminal Appeal No. 102-SB of 1995 9 22. Feeling aggrieved, the instant appeal, was filed by the appellants. 23. I have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 24. The Counsel for the appellants, submitted that no credible evidence was produced by the prosecution, to prove that the prosecutrix was actually abducted. They further submitted that the trial Court was, thus, wrong in placing reliance on the incredible evidence, produced by the prosecution, for recording conviction and awarding sentence. The submission of the Counsel for the appellants, does not appear to be correct. The prosecutrix when appeared as, PW5, gave a vivid detail of the incident. According to her, on 06.05.92, when she was returning alongwith her uncle and reached near the house of Mr. Chawla, Regional Manager of a bank, a Maruti van of blue colour came all of a sudden and stopped. It was further stated by her that three persons alighted from the van, with the knives in their hands. They threatened her uncle and put her into the van. She raised hue and cry, as also shrieks. Three of her lifters molested her, but could not commit rape with her. She further stated that she had a scuffle with them, in an effort to free herself. It was further stated by her, that, in that process, she suffered injuries, on her right elbow, left knee etc. In that scuffle, her bangles, and wrist watch were broken and a chappal slipped from her foot. It was further stated by her that after the van kept on roaming for about 2 to 2 ½ hours, it was got stopped, when the three lifters and the driver of the van alighted and tried to run away, but all of them Criminal Appeal No. 102-SB of 1995 10 were caught by the Police. She identified the accused, as the persons, who abducted her in the van. The statement of the prosecutrix, was duly corroborated by Ram Saran Dass, PW1, her uncle who was accompanying her at the relevant time. The statement of the prosecutrix stood further corroborated, from the recovery of broken pieces of bangles, and a wrist watch (ladies), which slipped from her wrist in the van aforesaid. Further corroboration to the evidence of the prosecutrix was provided through the medical evidence of Dr. Deepika Gupta, PW2, who found three injuries, described above, on her person. These injuries were sustained by the prosecutrix, during the scuffle, she had with her abducters. The statement of Ramesh Kumar, PW4, also proved that he and other persons picked up their motorcycles and scooters and started chasing the van, though they were unsuccessful, in their attempt, to catch hold of the same. There was absolutely no reason, on the part of the prosecutrix, and her uncle to depose falsely. She had no ill-will, grudge, or enmity, against the accused, to make a false deposition against them. From the cogent and convincing evidence, referred to above, produced by the prosecution, it was proved that the prosecutrix who was aged about 14 years as per the birth certificate PL, was abducted from the lawful guardianship of her parents, with an intent to seduce her to illicit intercourse. The trial Court, was, thus, right in holding that the accused committed the offences, punishable under Sections 363 and 366 of the Indian Penal Code. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. Criminal Appeal No. 102-SB of 1995 11 25. It was next submitted by the Counsel for the appellants, that at the time the accused were arrested, knives were allegedly recovered from them. They further submitted that the accused were tried for the offence, punishable under Section 25 of the Arms Act, in Sessions Case No. 131 of 1992 and Sessions Case No. 127/2 of 1992, and, ultimately, Mahabir son of Ram Singh, Rajesh son of Ranjit, Mohinder Singh son of Baldev Singh, and Mahabir Singh son of Kali Ram, were acquitted. They further submitted that since the knives were recovered from the accused, during the course of the same transaction, and once they were acquitted, in the Arms Act case, they were also entitled to acquittal, in the instant case. They also placed reliance on Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi), 2005 SCC (Crl.), 1037, Pritam Singh and another Vs. The State of Punjab, AIR 1956 (SC) 415, in support of their contention . In Mukhtiar Ahmed Ansari's case (supra), the case was closely connected with another case of kidnapping of one V for ransom. M was already acquitted in kidnapping case, by a competent Court. It was held that the said decision became final. In Pritam Singh's case (supra), the fire arms were recovered from the accused, which were used for the commission of the murder of Chanan Singh, and Sardul Singh. The fire arms were recovered and separate cases were registered against the accused. They were acquitted therein, on the ground that the prosecution had failed to establish the possession of the accused in relation to some revolvers. It was held that the possession of the revolvers was, a fact, in issue, which had to be established by the prosecution, before the accused could be convicted for the offence Criminal Appeal No. 102-SB of 1995 12 under Section 19(f) Arms Act. That fact was found against the prosecution. It was, under these circumstances, held that the same could not be proved against the accused, in the subsequent proceedings, between the Crown and them, under the charge of murder. It was further held that the evidence against them, in the latter proceedings, would have to be considered, regardless of the evidence of recovery of the revolvers from them. Ultimately, acting upon the evidence of other witnesses, regardless of the acquittal of the accused, under the Arms Act, the accused were convicted under Section 302 of the Indian Penal Code by the trial Court. The appeals were dismissed by the High Court and the Apex Court. The principle of law, laid down, in Pritam Singh's case (supra) decided by a bench of three Judges of the Apex Court, is fully applicable to the facts of this case. Even if, the accused were acquitted of the offence, under Section 25 Arms Act, for having been allegedly found in possession of knives, while considering the merits of the present case, for the offences, punishable under Sections 363 and 366 of the Indian Penal Code, the factum of recovery of knives, could not be taken into consideration, on the ground, that the accused have already been acquitted, for the offence under the Arms Act. However, the acquittal of the accused, for the offence, punishable under Section 25 of the Arms Act, for having been allegedly found in possession of knives, did not, in any manner, affect the merits of the case, in relation to the offences, punishable under Sections 363 and 366 of the Indian Penal Code. The merits of the case, for the offences, punishable under Sections 363 and 366 of the Indian Penal Code, are Criminal Appeal No. 102-SB of 1995 13 required to be considered, regardless of the evidence of recovery of knives, from them, for which, they have already earned acquittal. Under these circumstances, those judgements, acquitting the accused, in the Arms Act case, could only be relevant to the extent, referred to above. The charge under Sections 363 and 366 of the Indian Penal Code, is quite distinct and separate, from the charge under Section 25 of the Arms Act, against the accused. The accused were not acquitted, for the offences, punishable under Sections 363 and 366 of the Indian Penal Code. The doctrine of autrefois acquit is, thus, not applicable to the facts of the present case. Mukhtiar Ahlmad Ansari's case (supra) was decided by a bench of two Judges of the Apex Court. Any principle of law, laid down, therein, contrary to the principle of law laid down in Pritam Singh's case (supra), decided by a larger bench, shall not hold the field. No help, therefore, can be drawn by the Counsel for the appellants, from Mukhtiar Ahlmad Ansari's case (supra). In this view of the matter, the submission of the Counsel for the appellants, must fail, and the same stands rejected. 26. No other point, was urged, by the Counsel for the parties. 27. In view of the above discussion, it is held that the judgement of conviction and the order of the sentence, rendered by the trial Court, qua Rajesh, Mahabir son of Ram Singh, and Mahabir son of Kali Ram, appellants, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld. The appeal of Mohinder Singh, appellant, who during the pendency thereof, died, is liable to abate. Criminal Appeal No. 102-SB of 1995 14 28. For the reasons recorded above, the appeal, filed by Rajesh, Mahabir son of Ram Singh, and Mahabir son Kali Ram, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, qua them, are upheld. If these appellants are on bail, their bail bonds, shall stand cancelled. 29. The appeal of Mohinder Singh appellant No. 3, abates on account of his death during the pendency thereof (appeal). 30. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude qua Rajesh, Mahabir son of Ram Singh, and Mahabir son of Kali Ram, appellants, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 31. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 32. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 12.05.2009 (SHAM SUNDER) AMODH JUDGE