Criminal Appeal No. 394-DBA of 2000 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No. 394-DBA of 2000 Date of decision : 26.5.2008 The State of U.T., Chandigarh .....Appellant Versus Satwant Kaur ...Respondent 2. Criminal Appeal No. 1111-SB of 1999 Hardeep Kaur .....Appellant Versus U.T. Chandigarh. ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. Sukant Gupta, Advocate for the U.T., Chandigarh Mrs. Baljit K. Mann, Advocate for the appellant in Criminal Appeal No.1111-SB of 1999. S. D. ANAND, J. Initially, the police of Police Station, Sector 39, Chandigarh filed a report under Section 173 Cr.P.C. against the present appellant i.e. Hardeep Kaur (in Criminal Appeal No. 1111-SB of 1999) and Satwant Kaur (respondent in Criminal Appeal No. 394- DB of 2000) and two others namely, Jagmohan Singh and Gurbax Singh. However, the trial proceeded only against Jagmohan Singh Criminal Appeal No. 394-DBA of 2000 -2- **** and Gurbax Singh because the present appellants Hardeep Kaur and Satwant Kaur were declared proclaimed offenders. Jagmohan Singh was convicted for the offences under Sections 363, 366 and 376 IPC; while Gurbax Singh was convicted for the offences under Sections 363 read with Section 366 IPC. The present appellant Hardeep Kaur was tried subsequently and convicted by the learned Trial Judge vide judgment under challanege. The prosecution allegations were as under:- During the period 1985-86, the prosecutrix was on the rolls of the Government High School, Sector 37, Chandigarh where she was studying for 8th standard. Her class mate and friend Jatinder Kaur was in a different section of that standard. Both friends were on visiting terms with each other. Jagmohan Singh (a Deputy Superintendent of Police in the C.R.P.F. and father of Jatinder Kaur who was convicted in the initially filed case) and his family were residing in House No. 7, Sector 39, Chandigarh. The appellant Hardeep Kaur is wife of Jagmohan Singh and mother of Jatinder Kaur aforementioned. Both of them i.e. Jagmohan Singh and Hardeep Kaur wanted the prosecutrix to visit their house every day. If she did not turn up on any particular day, she would be sent for through some one. On one particular occasion, the prosecutrix visited the house of Jagmohan Singh when Hardeep Kaur required her ( i.e. Prosecutrix) to go to the first floor as Jagmohan Singh had called her over there. Hardeep Kaur accompanied the prosecutrix to Criminal Appeal No. 394-DBA of 2000 -3- **** the first floor. She left her in the company of Jagmohan Singh on the pretext that she was going to fetch water. While leaving the first floor, she bolted the room from outside. In her absence, Jagmohan Singh deflowered the prosecutrix without her consent and inspite of her resistance. Jagmohan Singh held out a threat that the prosecutrix would be done to death if she did not keep on visiting his house. Even prior thereto, Jagmohan Singh used to kiss the prosecutrix in the presence of Hardeep Kaur and this fact was to the notice of Jatinder Kaur alias Rubi. After the act was over, Hardeep Kaur opened the door and came in side the room. When the prosecutrix made a grievance of violation of her person at the hands of Jagmohan Singh, Hardeep Kaur told her that it did not really make any difference. As the prosecutrix was having a feeling of pain, Hardeep Kaur gave her a pain killer. The prosecutrix did not bring the incident to the notice of her parents on account of the threat held out by Jagmohan Singh and also Hardeep Kaur that she (the prosecutrix) would be done to death if she would share the incident with any one. However, thereafter the prosecutrix did not visit the house of Jagmohan Singh for 4/5 days. On one particular day thereafter, she was on way to school when Hardeep Kaur met her and admonished her for refraining from visiting their house. The prosecutrix informed her that she would not visit latter's house on account of the availability over there of her husband Jagmohan Singh. However, when the prosecutrix was on way to her home after school hours, Hardeep Kaur stopped her and took her along to her Criminal Appeal No. 394-DBA of 2000 -4- **** house, alongwith Jatinder Kaur @ Rubi. Again, Jagmohan Singh took her to a room on the first floor. Though Hardeep Kaur went along with them, but returned from the first floor after leaving the prosecutrix in the company of Jagmohan Singh. There again, she was ravished against her will. As on the previous occasion, Hardeep Kaur appeared on the scene thereafter. On 30.7.1986, the prosecutrix was on way to the school in the company of her sister Seema. When they reached the crossing dividing Sector 40-41, Jagmohan Singh came over there in a chauffeur driven car which was brought to a halt near them. At that particular time, Seema had gone to Sector 41 to fetch stitched clothes. Jagmohan Singh, who was carrying a revolver with him, forced the prosecutrix to accompany him in latter's car. Initially, she was taken to Mohali Bus Stand where from she was taken to village Kurdan in the house of Satwant Kaur. Satwant Kaur is real sister of Jagmohan Singh. In the course of the car journey, the prosecutrix had been told to change the wearing apparel which Jagmohan had brought along with him. During the period of stay at the house of Satwant Kaur, Jagmohan Singh again raped the prosecutrix. That fact was in the notice of Satwant Kaur. Jagmohan Singh left the house the following day and left the prosecutrix over there. After few days thereof, Jagmohan Singh again visited the house of her sister and had committed sexual intercourse with the prosecutrix. He also took her to Delhi. During that sojourn, Hardeep Kaur was also with them. Prior thereto, Hardeep Kaur visited village Kurdan where the Criminal Appeal No. 394-DBA of 2000 -5- **** prosecutrix requested her to be taken to house of her parents but the former refused. It was thereafter that the police raided that house and the prosecutrix was recovered in the company of Jagmohan Singh, Gurbax Singh and Satwant Singh. That raid was conducted after the police had been notified by Kashmir Singh, father of the prosecutrix. In course of that application, he had expressed an apprehension that Jagmohan Singh DSP had kidnapped his daughter. Learned Trial Judge recorded a verdict of acquittal in favour of Satwant Kaur; while Hardeep Kaur was convicted on a finding that she was a party to the nefarious acts committed by Jagmohan Singh. Hardeep Kaur has filed Criminal Appeal No. 1111-SB of 1999 to challenge her conviction at the hands of learned Trial Court; while Criminal Appeal No. 394-DBA of 2000 has been filed by the Union Territory, Chandigarh to obtain invalidation of the finding of exoneration recorded in favour of Satwant Kaur. Insofar as the appellant Hardeep Kaur is concerned, we have not been pursuaded to affirm the view obtained by the learned Trial Judge. Hardeep Kaur is wife of convicted accused Jagmohan Singh. Her two grown up daughters were living in the same house. It is illogical to expect that she would have been herself a party to the commission of rape by her husband on a girl who was of the age of her daughter. A wife could just not be a party to any such act as it adversely affects her matrimonial existence as well, particularly when Criminal Appeal No. 394-DBA of 2000 -6- **** 'allowance' of such an act in the house itself would also affect the personality of her grown up daughters. The incriminating evidence against Hardeep Kaur consists of the solitary statement of the prosecutrix herself. We do not find ourselves in agreement with the prosecution presentation that Hardeep Kaur would facilitate act of rape by her husband by each time bolting the first floor room from outside and would herself open it after the prosecutrix had been ravished on each occasion. In the light of the view, we have taken in the matter, we allow the Criminal Appeal No. 1111-SB of 1999 filed by Hardeep Kaur. The judgment of conviction recorded against her shall stand set aside. Hardeep Kaur shall stand acquitted of the charge. We do not find anything perverse in the manner of appreciation of evidence at the hands of the learned Trial Judge to the extent it relates to the exoneration of Satwant Kaur. There is no substantive evidence to prove that the fact that Jagmohan Singh was repeatedly raping the prosecutrix was to her notice. She may have refrained from ascertaining correct facts. Though the bringing along of a minor girl hy her brother ought to have aroused the suspicion of Satwant Kaur, the fact that she allowed her brother and the prosecutrix to stay at her house would not, ipso facto, indicate that she was privy to the act of kidnapping and committing rape upon the prosecutrix. The parameters for considering the validity or otherwise of verdict of acquittal were laid down by the Apex Court in Ramesh Babulal Vs. State of Gurarat, AIR 1996 SC 2035, Criminal Appeal No. 394-DBA of 2000 -7- **** Jaswant Singh Vs. State of Haryana AIR 2000 SC 1833 and Main Pal Vs. State of Haryana AIR 2004 SC 2158. We find that the finding of exoneration of Satwant Kaur is not within the parameters laid down by the Apex Court. For the reasons noticed above, the appeal preferred by the Union Territory, Chandigarh against the acquittal of Satwant Kaur shall also stand dismissed. ( S. D. ANAND ) JUDGE May 26, 2008 (ADARSH KUMAR GOEL) Pka JUDGE