CRM-M 49604 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M 49604 of 2007 Decided on Oct 27,2009 Harjit Singh Bhalla --.Petitioner Versus State of Punjab --Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN PRESENT: Mr.A.P.S.Deol, Sr.Advocate,with Ms.Manpreet Kaur,Advocate, for the petitioner Mr.K.D.Sachdeva,Addl.A.G.Punjab. Rakesh Kumar Jain, J: The petitioner has applied for anticipatory bail in case registered vide FIR No.178 dated 17.7.2007 under Sections 376,506,120- B IPC at Police Station City, Kotkapura. District Faridkot. The aforesaid FIR has been registered on the statement of Rajni Bala aged 20 years, in which she has stated that she is residing with Bimla Rani wife of Banwari Lal,resident of Kot Kapura, for the last about 1 ½ year, who in connivance with Saroj Rani wife of Pawan Kumar administered her intoxicating tablets and capsules and Kaka, Master owner of Amar Palace Bhagta, whose one arm is amputated, Sukhdev Singh, Seceretary r/o village Bhullar, District Muktsar, Giani Scooterwala, Bittu Mobilewala and 4/5 others persons, whom she could identify, committed rape upon her at the house of Saroj Bala. It is alleged that Bimla Rani CRM-M 49604 of 2007 2 and Saroj Rani used to take money from the aforesaid persons for committing rape upon her. Apprehending his arrest for the allegations contained in the aforesaid FIR, the petitioner had applied for anticipatory bail before the Court below, which was dismissed by Addl.Sessions Judge, Faridkot, vide his order dated 26.9.2007. At the time of notice of motion on 24.09.2007, arrest of the petitioner was stayed subject to his joining the investigation as and when required by the Investigating Officer. Learned counsel for the petitioner has vehemently argued that the complainant has specifically named five persons in the FIR, who are Kaka, petitioner Harjit Singh Bhalla, Sukhdev Singh Secretary, Giani Scooterwala and Bittu Mobilewala. Out of whom, Ranjit Singh, who is named as Kaka owner of Amar Palace, Bhagta has already been granted anticipatory bail by the Addl.Sessions Judge, Faridkot vide his order dated 22.8.2007. It is submitted that when the FIR was registered by the complainant, she was eight months' pregnant, therefore, while opposing the application of Ranjit Singh, ASI Kuldip Singh has stated before the Addl.Sessions Judge, Faridkot that DNA test of the issue to be born to the prosecutrix is to be conducted and Ranjit Singh could be connected on the basis of DNA report. The Addl.Sessions Judge, Faridkot, released the petitioner on bail subject to the condition that if the DNA report goes against him (Ranjit Singh), then the order of bail shall cease to operate. Learned counsel for the petitioner has further argued that the present case has been adjourned many times to await the report of DNA because DNA sample of the petitioner was already taken by the CRM-M 49604 of 2007 3 police and was sent to the Centre for DNA, Fingerprinting and Diagnostics, Hyderabad. It was submitted that DNA report dated 22.7.2009 has been received and placed on record by the respondent/prosecution in which it has been concluded that “Since DNA from the sources of exhibit B (sternum of foetus) and exhibit C(muscle tissue of foetus) is essential for comparison with the sources of exhibit A (Ms.Rajni Bala) exhibit D (Mr.Ranjit Singh) and exhibit E (Shri Harjit Singh), therefore, no opinion is furnished herewith” It is further submitted that since foetus has already been destroyed, therefore, there is no scope for comparing the sternum of foetus with that of the petitioner. It is further submitted by the learned counsel for the petitioner that Sukhdev Singh, was tried in the Court of Sh.A.K.Singla, Addl.Sessions Judge, Faridkot in Sessions Case No. 06 of 16.2.2009 in which the complainant was examined as PW-1, who in her cross-examination had stated “when confronted with portion A to A1 of Ex.PA where it is recorded that Sukhdev Singh Secretary of village Bhullar District Muktsar alongwith other persons named therein used to rape me in the house of Saroj Rani but the witness has refused to own it” Consequently, Additional Sessions Judge, Faridkot, vide his order dated 8.4.2009, acquitted Sukhdev Singh, of the charges framed under Sections 376,506,120-B, registered against him vide FIR No. 178 dated 17.7.2007 at Police Station, City Kotkapura. On the other hand, learned counsel for the State has submitted that case of the petitioner cannot be compared with other co-accused, namely, Ranjit Singh alias Kaka and Sukhdev Singh because in the case of Ranjit Singh, the statement of the prosecutrix was recorded in which she CRM-M 49604 of 2007 4 had stated that the photographs of Ranjit Singh affixed on Ex.P1 is not that of the person who is known as Kaka owner of Amar Palace Bhagta nor he is identified, whereas in the case of the petitioner she has specifically identified the petitioner as the person whose arm has been amputated and the learned counsel for the petitioner appearing before the Court below has not disputed that one arm of the petitioner has been amputated, therefore, his identity was not doubtful. It is further submitted that in the case of Sukhdev Singh who has been acquitted vide order dated 08.7.2009, the prosecutrix has resiled from her statement that the said person was not involved. She also stated that she did not conceive the child from him whereas in the case of the petitioner in Sessions Case State Vs. Bimla Rani in which the prosecutrix has been examined (in camera), she has specifically named the petitioner. Against this, learned counsel for the petitioner submitted that the prosecutrix cannot be believed because she has been changing her statement according to her choice as she had categorically named Sukhdev Singh in her complaint (FIR) but later on, she resiled in the Court and while she had appeared as PW-7 in the case of State Vs. Bimla Rani etc, she has again named Ranjit Singh and the present petitioner. After hearing the learned counsel for the parties and keeping in view the facts and circumstances of this case in which the prosecutrix is herself changing her statement, parentage of the alleged child cannot be ascertained because of destruction of foetus and the petitioner has already joined the investigation, the order dated 24.10.2007 is hereby made absolute. The petitioner shall abide by the provisions of Section 438 (2) Cr.P.C. CRM-M 49604 of 2007 5 However, nothing observed herein shall be construed to be an opinion on the merits of the case. October 27,2009 (Rakesh Kumar Jain) RR Judge