IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No.1000-SB of 2003 Mahabir Singh … Appellant Versus State of Haryana … Respondent 2. Criminal Appeal No.1481-SB of 2003 Vinod … Appellant Versus State of Haryana … Respondent Date of decision: 14th March, 2011 CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sudhir Sharma, Advocate for the appellant in CRA No.1000-SB of 2003. None for the appellant in CRA No.1481-SB of 2003. Mr. Anoop Shrama, Assistant Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) By this common order, both the appeals viz. (1) Criminal Appeal No.1000-SB of 2003 preferred by Mahabir Singh son of Budh Ram and (2) Criminal Appeal No.1481-SB of 2003 filed by Vinod son of Ved Parkash shall be decided together. Appellant Vinod was named as an accused in case FIR No.68 dated 03.03.2000 registered at Police Station City Jind under Sections 366 and 376 IPC. Appellant Mahabir Singh son of Budh Ram was summoned by the trial Court after Section 319 Cr.P.C. was invoked. The Court of Sessions Judge, Jind vide its impugned judgment dated 12th May, 2003 held both the appellants guilty of offences punishable under Sections 366 and 376 IPC Criminal Appeals No.1000-SB and 1481-SB of 2003 and vide a separate order dated 14th May, 2003 sentenced them to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.2,000/- each, in default of payment of fine to further undergo rigorous imprisonment for one year under Section 366 IPC. They were further sentenced under Section 376 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.3,000/- each, in default of payment of fine to further undergo rigorous imprisonment for two years. Both the substantive sentences of each accused were ordered to run concurrently. FIR Ex.PG, in the present case, was registered on the basis of a written complaint Ex.PA submitted by Mahabir PW-3 son of Gaje Singh, which, when translated into English, reads as under: “To The In-charge, Police Post, Rohtak Road, Jind. It is submitted that I Mahabir son of Gaje Singh caste Rajput, am a resident of Bhatnagar Colony, Jind and do labour work. I have got four children. My eldest daughter (prosecutrix), who is aged about 15 years, has studied up to ninth class. My son and two other daughters are younger to her. I had gone to do my labour work and my wife along with the children was at home. Vinod son of Ved Parkash caste Ahir resident of Ahirka, at present tenant at Rohtak Road, Jind, used to visit my house for the last two years. On 19th January, 2000 my wife had gone to the city to take medicine. (Prosecutrix) and my youngest daughter were at home. Vinod son of Ved Parkash came to my house and enticed away my daughter (prosecutrix) for performing marriage without my consent. When my wife Geeta returned from the city, my daughter (prosecutrix) was not at home. My wife asked my youngest daughter Preeti, who told that Vinod had taken away (the prosecutrix). Due to fire, feet of my daughter (prosecutrix) were burnt. My wife informed me on telephone at Faridabad and I reached at home in the night. We searched the girl (prosecutrix), but she was not traceable. We checked the cash 2 Criminal Appeals No.1000-SB and 1481-SB of 2003 and ornaments at home and found that one Nath, one gold ring, one necklace, one Mangal Sutar of chandi, two pairs of Pajeb of chandi and one pair of bangles of chandi were missing. These articles along with cash worth Rs.5,000/- have been taken away by my daughter (prosecutrix) and Vinod. Till today, to save honour of the family, we have been searching for her. For elopement of my daughter, Tikko daughter of Ved, Satbir nephew of Ved and Toni son of Ved caste Ahir resident of Ahirka, are also responsible. My daughter (prosecutrix) has been taken away by Vinod, after she was induced. Despite search, my daughter is not traceable, therefore, there being no other option I have reported the matter to the police. Action be taken and my daughter be recovered.” In the written complaint Ex.PA, a specific allegation has been leveled that the prosecutrix (name withheld to protect her identity) has been taken away by appellant Vinod. It is further stated that Tikko daughter of Ved Parkash, his nephew Satbir and his son Toni have played a vital role to facilitate elopement of the prosecutrix. The prosecutrix was recovered on 7th March, 2000. Her statement Ex.PH was recorded under Section 164 Cr.P.C. on 8th March, 2000. Mr.Sudhir Sharma, Advocate appearing on behalf of appellant Mahabir Singh son of Budh Ram, has stated that in the statement Ex.PH, the prosecutrix has stated that she had a love affair with Vinod and she herself had accompanied him as she intended to spend her entire life with him. Learned counsel has stated that statement of the prosecutrix was recorded by Dr.Neelima Shangla PW-10, who at the relevant time was posted as Chief Judicial Magistrate, Jind and the prosecutrix has not stated a single word against the present appellant Mahabir Singh son of Budh Ram. Mr. Sharma has further submitted that in the entire investigation, nowhere the name of appellant Mahabir Singh son of Budh Ram surfaced. 3 Criminal Appeals No.1000-SB and 1481-SB of 2003 It is stated that it was only when the prosecutrix was examined as PW-1 in the Court, she named the present appellant Mahabir Singh son of Budh Ram as one of the co-accused of appellant Vinod. In the Court, she stated that Vinod and his brother-in-law Mahabir son of Budh Ram, both came to her house. She further stated that Vinod told her that her father has asked him to accompany her to take medicine. Then both the accused took her on a scooter to Bhiwani road from her house and thereafter, she was taken away in a Jeep. It was also stated that both the accused had performed illicit sexual intercourse with her. However, in cross-examination, the prosecutrix stated as under: “… … … I had told the Court in my statement that I had accompanied Vinod accused on my own will. However, I had made that statement under the pressure of Vinod accused. Earlier in my statements before the police and the Court, I have not stated that Mahabir accused also committed rape with me… … …” Dr.Malti Gupta PW-11 had medico legally examined the prosecutrix on 8th March, 2000 and found no injury on her person. Dr.V.K. Satija PW-5 medico legally examined appellant Vinod and stated that there was nothing to suggest that appellant Vinod was not capable of performing sexual intercourse. Mahabir, father of the prosecutrix, appeared as PW-3 and reiterated as to what was stated in the written complaint Ex.PA. However, in the Court, he also introduced the fact that the prosecutrix was taken away by accused Vinod along with another person. That another person as referred is Mahabir Singh son of Budh Ram. Preeti, younger sister of the prosecutrix, appeared as PW-2 and corroborated the testimony of her father Mahabir PW-3. SI Hukam Chand, Civil Lines, Hisar PW-4 proved registration of the case. Chattar Singh, Retired DSP PW-6 at the relevant time was 4 Criminal Appeals No.1000-SB and 1481-SB of 2003 posted as Inspector/SHO Police Station City Jind. He had submitted the report under Section 173 Cr.P.C. Constable Dilbag Singh Draftsman PW-7 had prepared the scaled site plan Ex.PF of the spot. Suraj Bhan Statistical Assistant PW-8 proved the birth certificate of the prosecutrix as Ex.PG. Rohtas Singh ASI PW-9 had recorded statement of Dilbag Singh Draftsman and supplementary statement of Mahabir Singh complainant. As stated earlier, Dr.Neelima Shangla PW-10, then posted as Chief Judicial Magistrate, Jind, had recorded statement of the prosecutrix under Section 164 Cr.P.C. SI Kartar Singh PW-12 proved various facets of the investigation. Thereafter, prosecution closed its evidence and statements of the accused appellants were recorded under Section 313 Cr.P.C. They denied all the incriminating circumstances put to them and pleaded false implication. It is not disputed that in the FIR, statement of the prosecutrix recorded under Section 161 Cr.P.C. and her statement recorded under Section 164 Cr.P.C., name of the accused Mahabir Singh son of Budh Ram nowhere surfaced. For the first time, his name was disclosed by the prosecutrix in her statement made in the Court. This fact has been admitted by the witness. Prosecutrix had remained in the company of accused Vinod for a period of 47 days. They stayed in the house of Bhua (paternal aunt) of Vinod. It is true that the defence had not confronted the prosecutrix with her statement Ex.PH made before the Chief Judicial Magistrate, Jind Dr.Neelima Shangla PW-10. In her statement made before the Illaqua Magistrate under Section 164 Cr.P.C. the prosecutrix stated that she was not raped and she had accompanied accused Vinod at her own wish. The prosecutrix wanted this fact to be wished away on the false pretext that she was under pressure of accused Vinod. When the prosecutrix was recovered, accused Vinod had already been taken into custody and the 5 Criminal Appeals No.1000-SB and 1481-SB of 2003 prosecutrix was produced before the Chief Judicial Magistrate, Jind. At that time, no pressure was subsisting. Therefore, this Court has no doubt that the prosecutrix had herself accompanied appellant Vinod and was a consenting party to the sexual intercourse. However, the prosecutrix has also admitted that before making statement in the Court, she nowhere had indicted appellant Mahabir Singh. Not even a single word was whispered against him. It was only when the prosecutrix deposed against him in the Court, he was summoned under Section 319 Cr.P.C. Thus, this Court is of the opinion that it will not be safe to uphold the conviction of appellant Mahabir Singh son of Budh Ram and hence, his appeal is accepted. Conviction and sentence awarded to him is set aside and he is hereby acquitted of the charges. Counsel for the State has filed an affidavit of Ram Singh, Superintendent of Police, Jind, today in the Court, wherein it is stated that appellant Vinod has died. Along with the affidavit, death certificate issued by the Registrar, Death and Birth-cum-Secretary, Municipal Committee, Jind, has been attached as Annexure R-1. In view of the fact that appellant Vinod has died, the appeal preferred by him stands abated. [KANWALJIT SINGH AHLUWALIA] JUDGE March 14, 2011 rps 6