IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No.105-SB of 1995 Sarla and others … Appellants Versus State of Haryana and another … Respondents 2. Criminal Revision No.205 of 1995 Jagdish and another … Petitioners Versus Sarla and others … Respondents Date of decision: 5th January, 2011 CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Bipan Ghai, Senior Advocate with Mr. Sandeep Gehlawat, Advocate for the appellants/respondents in CRR 205 of 1995. Mr. T.S. Sangha, Senior Advocate with Mr. Ashok Tyagi, Advocate for the complainant/petitioners in CRR 205 of 1995. Mr. Sandeep Singh Mann, Senior DAG, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) By this common order, both (1) Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 shall be decided together. Sarla wife of Hari Chand, Hari Chand son of Rattan Singh and Sat Parkash son of Din Dayal have directed Criminal Appeal No.105- SB of 1995 against the judgment of conviction dated 8th February, 1995 rendered by Additional Sessions Judge, Sonepat. The trial Court held appellant Sat Parkash guilty of an offence punishable under Section 366- A read with Section 368 IPC, whereas appellants Sarla and her husband Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 Hari Chand were held guilty of an offence punishable under Section 368 IPC. Vide a separate order of even date, appellant Sat Parkash was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for six months under Section 366-A IPC. He was further sentenced under Section 368 IPC to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for three months. Both the sentences awarded to appellant Sat Parkash were ordered to run concurrently. Appellants Sarla and her husband Hari Chand were sentenced under Section 368 IPC to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/- each, in default of payment of fine they were to further undergo rigorous imprisonment for three months. Appellants Sarla and Hari Chand are wife and husband, whereas appellant Sat Parkash is their nephew. Present is a case, where Sat Parkash, in his youth, was allegedly having a love affair with Sushila, who was a minor girl and on the relevant date was aged about 15 years and 5 months. Case of the prosecution is that Sushila left her house in the company of Sat Parkash on 7th June, 1992. She was born on 5th November, 1976. It has also come in evidence that on 12th June, 1992, both Sushila and Sat Parkash, as a result of love-pact, consumed poison. Both were found unconscious and were taken to the hospital. Sat Parkash survived. Later-on, prosecution had set-out a case that Sushila was administered poison. All the three appellants were also charged for an offence punishable under Section 363 IPC. Appellant Sat Parkash was charged for offences punishable under Sections 366-A and 376 IPC also. 2 Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 Whereas, appellants Sarla and her husband Hari Chand were charged for an offence punishable under Section 368 IPC. All the three appellants were also charged for an offence punishable under Section 302 read with Section 34 IPC. The Additional Sessions Judge, Sonepat has acquitted Sat Parkash of the offence punishable under Section 376 IPC and all the three appellants were acquitted of offence punishable under Section 302 read with Section 34 IPC. No appeal against acquittal has been filed, though a revision against acquittal has been filed by the complainant. The trial Court, while recording acquittal of the accused for an offence punishable under Section 302 read with Section 34 IPC, observed as under: “25. The relevant extract from the statement of PW 5 Ram Kumar may be reproduced as under:- ‘On our way to the hospital, Ms. Sushila opened her eyes when Ram Niwas had stirred her body. Ram Niwas asked her, ‘what was happened with her?’ Miss Sushila replied, ‘Sat Parkash Ne Uske Saath Boora Kaam Kiya aur Hari Chand, Sat Parkash Vaa Smt. Sarla ne Uske Muh Mein Jabardasti goli dalli hain, Isiliya voh chillai thee.’ Similarly, PW 8 Ram Niwas uncle of the deceased deposed in the following words:- ‘When Ms.Sushila was being taken to the Primary Health Centre, Ganaur she regained consciousness and told us that poison had been forcibly administered by all the three accused, namely, Smt.Sarla, her husband Hari Chand and Sat Parkash. She again became unconscious.’ 26. PW 10 Rajinder Singh has gone to the house of the accused on hearing the shrieks of Ms.Sushila and he had also accompanied her to the hospital. He has stated 3 Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 that on account of the movements in the cart, Ms. Sushila regained consciousness and on the asking of Ram Niwas she had replied that Smt. Sarla, Hari Chand and Sat Parkash accused had forcibly put poison tablets in her mouth. After saying this much, she again went in coma. 27. Obviously, there is no direct evidence regarding forcible administration of poison to Ms. Sushila by the accused. By now, it is the admitted case of the prosecution that Sat Parkash accused was also admitted in the hospital while in unconscious state because of the influence of poison. If it was so there was no occasion for him to administer poison to Ms.Sushila forcibly. It is the only guess work of PW 5 Ram Kumar, PW 8 Ram Niwas and PW 10 Rajinder Singh that the poison was forcibly administered to Ms.Sushila. in fact, they were attracted to the house of the accused on hearing the shrieks of Ms.Sushila and when they entered the house they found that Sat Parkash accused and Ms.Sushila were lying unconscious. Even the Medical Officer who examined the deceased at Ganaur has stated that Ms. Sushila was in unconscious state when she was brought to the hospital. The alleged dying declaration made by Ms. Sushila is not reproduced by the witnesses in the very words of the deceased. The possibility of exaggerated account on the part of Ram Kumar, Ram Niwas and Rajinder Singh cannot be ruled out. All these three witnesses were confronted with their statements before the police under Section 161 of the Code of Criminal Procedure and an attempt was made to show that they have made improvements in their statements. Ram Niwas was also confronted with the contents of FIR No. 197 dated 13.6.1992 Ex.DC recorded under Section 309 of the Indian Penal Code with portions A to A and B to B wherein he has stated that shrieks emanated from the house of the accused at about 3.20 p.m. and he in the company of Onkar Singh, Rajidner, Vinod Kumar and Vijender Singh went to the house of the accused. He has further got recorded in the first information report that Hari Chand and Smt. Sarla accused were present in their house whereas Sat Parkash 4 Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 accused and Ms. Sushila were lying in an unconscious state. Sat Parkash was lying on the floor of the house whereas Ms.Sushila was lying on a wooden Takhat. He has not disclosed the alleged dying declaration in the first version incorporated in the first information report Ex.DC under Section 309 of the Indian Penal Code. The witnesses were made to explain the material contradictions but according to PW 8 Ram Niwas the police has not mentioned this fact in his statement recorded during inquest report and his examination under Section 161 Cr.P.C. I am not prepared to accept this part of the story of the prosecution that a dying declaration was made by Ms. Sushila on her way to the hospital in the presence of PW 5 Ram Kumar, PW 8 Ram Niwas and PW 10 Rajinder Singh because what has been stated before the Court was conspicuously absent from the statement of these witnesses before the Investigating Officer. Reliance may be placed on Ravulappali Kondaiah and others Vs. State of Andhra Pradesh AIR 1975 Supreme Court 216. Similar view was taken in Badruudin and others Vs. State of Maharashtra AIR 1981 Supreme Court 1230, when the witness changes one version and substitutes it by another as the exigency required the testimony of such a witness may not be accepted in toto. FIR Ex. DD was the first version which came up before the police and the prompt lodging of report to the police in respect of a commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them.” In support of the findings of the Additional Sessions Judge reproduced above, Mr. Bipan Ghai, Senior Advocate, assisted by Mr.Sandeep Gehlawat, Advocate, has stated that Sushila and accused Sat Parkash had consumed poison on 12th June, 1992 at 3.00 p.m. and they reached at Primary Health Centre, Ganaur at 4.00 p.m. It is stated that this fact is evident from ruqa Ex.PJ, which was addressed to SHO, 5 Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 Police Station Ganaur by the medical officer. It was stated therein that one boy Sat Parkash aged 23 years and a girl Sushila aged 15 years were brought in the hospital with alleged history of mercury poison. It was further stated that general condition of the patients was poor and they were unconscious. Learned counsel has further relied upon an application Ex.PL, wherein opinion of the doctor regarding fitness of both the patients to make a statement was sought. Vide Ex.PL/1, the doctor opined at about 4.40 p.m. that both the patients were not fit to make statement. Mr.Ghai has further stated that as per the medical record, Sushila expired at 5.45 p.m. This fact is discernible from ruqa Ex.PJ/1. Therefore, it is stated that it has come in the medical evidence that Sushila was brought in the hospital in an unconscious stage and she was not in a position to make dying declaration. Counsel has rightly contended that medical evidence dis-prove assertion of the witnesses that Sushila deceased had made a dying declaration. Once, the oral dying declaration made to Ram Kumar PW-5, Ram Niwas PW-8 and Rajinder Singh PW-10 is ruled out of consideration, there is no evidence of murder, as nobody was eye- witness to the administration of poison. Hence, the acquittal of all the three accused under Section 302 IPC is upheld as no ground to disturb the well reasoned findings is made out in Criminal Revision No.205 of 1995 filed by the complainant Jagdish, father of Sushila. Mr.Ghai has further stated that no allegation has surfaced in the evidence that Sat Parkash had committed sexual intercourse with Sushila. Mr.T.S. Sangha, Senior Advocate assisted by Mr.Ashok Tyagi, Advocate, appearing on behalf of the complainant, has not controverted this contention. Therefore, acquittal of the accused Sat Parkash under Section 376 can also not be interfered with, in a revision against acquittal. 6 Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 The Hon'ble Apex Court has taken consistent view in ‘Mahendra Partap Singh vs. Sarju Singh and another’ AIR 1968 Supreme Court 707; ‘D.Stephens vs. Nosibolla’ AIR 1951 SC 196; ‘Akalu Ahir v. Ramdeo Ram’ AIR 1973 Supreme Court 2145 (V 60 C 352); ‘Bansi Lal and others vs. Laxman Singh’ (1986) 3 Supreme Court Cases 444; ‘Vimal Singh vs. Khuman Singh and another’ (1998) Supreme Court Cases (Cri) 1574 and ‘Bindeshwari Prasad Singh vs. State of Bihar’ 2002 AIR (SC) 2907, that the High Court will not re- evaluate or re-appreciate the evidence in a revision petition to disturb the finding of the Court below in case acquittal is based on well founded reasons. Hence, no ground to disturb the acquittal of Sat Parkash under Section 376 IPC and that of Sarla, Hari Chand and Sat Parkash under Section 302/34 IPC is made out, in the revision petition preferred by the complainant. Having held so, this Court has to examine as to whether all the accused are guilty of an offence punishable under Section 368 IPC and the accused-Sat Parkash under Section 366-A IPC or not. Complainant Jagdish PW-1 made a statement Ex.PA to the SHO Police Station Ganaur on 12th June, 1992 at about 1.05 p.m. It will be apposite here to reproduce the translated version of the statement made by the complainant, which reads as under: “It is submitted that I, Jagdish son of Banarsi, caste Tyagi, is a resident of village Ganaur, Mohalla Pardhanwas, District Sonepat. On 7th June, 1992, Sunday, at about 7.00 in the morning, I and my son Sushil had gone to the fields. At about 11.00 a.m., we returned from our fields and found that my daughter Sushila was not present in the house. She is aged about 15 ½ years. On enquiry, it was found that Sushila has been enticed away by Sat Parkash son of Deen Dayal, caste Brahman, resident of village Ganaur, on his 7 Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 motorcycle bearing registration No.DL-25-5458 on the pretext of marriage. Till today, I have been searching for my daughter Sushila and Sat Parkash, but they have not been found till today. A case be registered and recovery proceedings be initiated against Sat Parkash and my daughter Sushila.” It has been further alleged that on 12th June, 1992, after registration of the FIR, at about 1.05 p.m., both, deceased Sushila and accused Sat Parkash were found in the house of Hari Chand and Sarla in an unconscious condition, after poison was consumed or administered. Having held that there is no record of administration of poison, this Court has to assume that they themselves consumed poison. Mr. Bipan Ghai has brought to my notice the suicide note Ex.DE relied upon by the defence, a perusal whereof reveals that Sushila had written that since she could not get Satta alias Sat Parkash, therefore she was committing suicide. Mr.Ghai has further stated that it has come in evidence that Sat Parkash also consumed poison and was admitted in the hospital. It is contended that it is just because of the fate or timely medical aid that Sat Parkash survived. Therefore, it should be inferred that both, Sushila and Sat Parkash, had consumed poison as a result of the love pact. Counsel for the appellant has further relied upon the photographs Ex.D1 to D7, wherein Sat Parkash and Sushila can be seen in the company of each other. Therefore, learned counsel has contended that it was a love affair between Sushila and Sat Parkash, even though Sushila was a minor and was aged about 15 ½ years at the time of incident. Jagdish complainant appeared as PW-1 and stated by way of his gestures, as he was unable to speak due to surgery, that his minor 8 Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 daughter Sushila was kidnapped by Sat Parkash. She was taken away by him on his motorcycle. He further stated that Sushila was not kidnapped in his presence and he had not seen Sushila going in the company of Sat Parkash on 7th June, 1992. He also denied the fact as to whether his daughter Sushila was taken to Delhi by his son Sushil to the house of Suman. However, the following lines of his cross-examination are required to be noticed: “It came to my notice on 7th of June, 1992 itself that my daughter has been eloped and thereafter, I searched in and the nearby cities including Delhi.” Dr. Satyawati Sharma PW-2 had conducted autopsy on the dead body of Sushila. Since Sushila died due to poison, this Court need not to notice the deposition of this witness. However, she stated that there was no evidence that a rape was committed upon Sushila one week before her postmortem. Dr. B.K. Gupta PW-3 had medico legally examined Sat Parkash. Bhup Singh Rathee, Secretary Municipal Committee, Ganaur appeared as PW-4 and he proved the date of birth of Sushila, about which there is no dispute. Ram Kumar PW-5 stated that on 12th June, 1992, he heard shrieks from the house of Hari Chand accused and he found Ram Niwas, Onkar, Vinod, Rajinder, who were present there. They were knocking at the door of Hari Chand. Sarla had refused to open the door and denied presence of any girl in her house. Then, one Bijender was sent to the Police Station and thereafter, Sarla opened the door. Inside the house, they found Sushila lying in an unconscious condition. Ram Kumar PW-5 was Lamberdar of the village. He had been duly confronted with his previous statement recorded under Section 161 Cr.P.C. 9 Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 Ram Niwas PW-8 is brother of complainant Jagdish PW-1. He is also a neighbourer of the accused. This witness had also stated that on 12th June, 1992 at about 3.30 p.m. he, along with other persons, heard shrieks of Sushila from the house of Hari Chand accused. They all rushed there and found Sushila in the house of Sarla and Hari Chand. Rajinder Singh PW-10 has also corroborated the testimony of PW-5 Ram Kumar and PW-8 Ram Niwas. The broad features of the case have been noticed. This Court has to examine as to whether offence punishable under Section 368 IPC is made out or not. It has come in the statement of the complainant Jagdish PW-1, Ex.PA that on 5th June, 1992, Sat Parkash had enticed away Sushila on his motorcycle and had left the village. They kept on searching for Sushila at all places. They also went to Delhi in search of her. Therefore, it is improbable and unnatural that they had not searched Sushila at the house of Sarla and Hari Chand on 7th June, 1992. The statement was made by the complainant Jagdish PW-1 on 12th June, 1992 at about 1.05 p.m. Till that time, it was nowhere stated that Sushila was in the house of Sarla and Hari Chand. This Court has only to rely upon the testimonies of Ram Kumar PW-5, Ram Niwas PW-8 and Rajidner Singh PW-10 to come to a conclusion that Sushila on 12th June, 1992 at about 3.30 p.m. was found in the house of Sarla and Hari Chand. This Court cannot become oblivious of the fact that these very three witnesses, i.e. Ram Kumar PW-5, Ram Niwas PW-8 and Rajidner Singh PW-10 have introduced the oral dying declaration of deceased Sushila, which had not been believed by the Court below. This Court is also of the opinion that these three witnesses have rightly not been believed qua the oral dying declaration. If that is so, can this Court place implicit reliance upon these witnesses to hold that on 12th June, 1992 at about 3.30 p.m. Sushila was found in the house of Sarla and Hari Chand, especially when 10 Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 Sat Parkash and Sushila had left on 7th June, 1992 and the witnesses were having a suspicion that they had gone to Delhi? Ruqa Ex.PJ sent by the Doctor on 12th June, 1992 at about 4.00 p.m. nowhere records as to who brought Suhsila and Sat Parkash to the hospital. Therefore, no corroboration is coming from any source that these three witnesses have taken Sushila to the hospital. Sat Parkash was a co-villager, who had taken away a minor girl of the village, therefore, feelings of the whole village were ruffled and the anger and anguish of the villagers was directed against Sat Parkash. Therefore, in all probability, this part of the evidence in the testimonies of Ram Kumar PW-5, Ram Niwas PW-8 and Rajinder Singh PW-10 that Sushila and Sat Parkash were found in the house of accused Sarla and Hari Chand, can be safely ruled out of consideration, being improbable and also for the reason that it will not be safe to place implicit reliance upon the same. Once this part of the evidence is ignored, there is no incriminating evidence against Sarla and Hari Chand. Hence, they are acquitted of the offence punishable under Section 368 IPC and their conviction is set aside. Section 366-A IPC reads as under: “366A. Procuration of minor girl Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” Sat Parkash has been acquitted for offence punishable under Section 376 IPC, as there being no evidence that he committed sexual 11 Criminal Appeal No.105-SB of 1995 and Criminal Revision No.205 of 1995 intercourse with Sushila. However, offence punishable under Section 366-A IPC is also not made out against him. It can be safely inferred that he induced Sushila from the lawful custody of her parents for the purpose of marriage. In the present case, both Sushila and Sat Parkash were found together. They had consumed poison and made an attempt to commit suicide. A case under Section 309 IPC was also registered against Sat Parkash. This fact is evident from the FIR Ex.DC recorded at the instance of Ram Niwas PW-8. Thus offence, if any, against Sat Parkash will fall under Section 366 IPC and not under Section 366-A IPC. Present case pertains to the year 1992. A period of more than 18 years has elapsed. Sat Parkash and Sushila had left their houses. Sat Parkash was in his youth and was not aware of the consequences of taking a minor girl, with whom he was having love affair, from the lawful custody of her parents. Taking these circumstances into consideration, his conviction under Section 366-A IPC is set aside. He is convicted of offence under Section 366 IPC and sentenced to undergo rigorous imprisonment for two years. Sentence of fine is maintained. With the observations made above, present appeal and the revision petition are disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE January 5, 2011 rps 12