CRR No.1042 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.1042 of 2010 (O&M) Date of decision: 09.02.2011 Vakil ....Petitioner Versus State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Satish Chaudhary, Advocate, for the petitioner. Mr. Gaurav Dhir, DAG, Haryana. Mr. Jamshed Ahmed, Advocate, for the complainant. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) Copy of the statement of prosecutrix Nasima recorded under Section 164 Cr.P.C. handed over by the learned counsel for the petitioner is taken on record. All the four revision petitions bearing No.1042 of 2010, 1104 of 2010, 1175 of 2010 and 1250 of 2010 are filed against the one and common impugned order dated 27.2.2010 passed by learned Additional Sessions Judge, Nuh, thereby summoning all the revisionists as additional accused under Section 319 of the Code of Criminal Procedure in sessions case No.102 of 3.9.2009 pursuant to FIR No.97 dated CRR No.1042 of 2010 (O&M) -2- 25.3.2009, Police Station Nuh, to face trial for an offence under Sections under 363/366-A/376 of the Indian Penal Code. The brief facts of the present case are that FIR was got registered by the father of the prosecutrix Hanif son of Ghamman to the effect that his daughter Nasima aged about 14/15 years had gone to the fields to answer the call of the nature in the evening of 25.12.2008. Then suddenly Khalid, Arshad and another person came into a Santro car of white colour and took away his daughter Nasima putting forcibly her in the Santro car towards Sohna; All the three persons committed rape turn by turn on my daughter in a guest house at Sohna and after committing the rape my daughter was left there; proprietor of the guest house after enquiring to my daughter called on my mobile No.9813163631, thereafter I with few members of my family reached there and brought my daughter. After the registration of the FIR, during investigation prosecutrix Nasima was examined under Section 164 Cr.P.C. before the Sub Divisional Judicial Magistrate, Nuh, on 27.3.2009. Prosecutrix has made following statement: - “Stated that on 25.12.2008 in evening at 7 PM I went towards jungle from my home to ease myself. There five boys came. Their names are Arshad, Khalid, Irfan, Noman and Wakeel and reaching there, Arshad put a country made pistol on my head. Irfan tied my eyes with clothe. And all of them pick me and put me in a Santro car and brought me to a Guest House in Sohna. Inside the room Khalid, Arshad and Irfan were there. Noman and Vakil stood outside the room. Out of them Khalid took of my clothes and then took off his clothes and raped me. Thereafter, Arshad raped me. In the end Irfan raped me. I shouted, and then all three of them shut the door from outside and went away I stayed in the room for the whole night. In the morning my father opened the door and I told everything to my CRR No.1042 of 2010 (O&M) -3- father and thereafter my father brought me home. There is danger to my life. All the accused and villagers threaten to kill me.” During the trial Nasima prosecutrix was produced as prosecution witness. Nasima prosecutrix has stated as under: - “We are residing in the jungle of Rehna after constructing our house. On 25.12.2008 my father was away to Puhana. At about 6.00 p.m. I went towards hill area of village to answer the call of nature. Then in a white santro car Khalid son of Basru, r/o village Kankar Kheri, Irfan @ Noman s/o Islam, r/o Rewasan, another Irfan s/o Subhan Khan, r/o Kanker Kheri, Wakil s/o Hamida, r/o Kanker Kheri, Arshad s/o Majid, r/o Rehna came there. Wakil was driving the Santro car. They came out from the santro car. Khalid put country made pistol on my temporal. Arshad gagged my mouth. Irfan put cloth on my eyes. They all dragged me in the said Santro car. They took me in a guest house at Sohna and confined me in a room. Firstly Khalid committed rape on me, then Arshad son of Majid, then Irfan son of Subhan Khan committed rape on me. Wakil and Irfan @ Nauman were guarding and were standing outside the room and after committing rape they confined me in the room and left me there after bolting the room. In the early morning one of the person belonging to Guest house opened the room and then I told the telephone number of my father to him and he informed my father. Thereafter, my father came there in the morning at 6.00 a.m. The above named persons also threatened me with dire consequences of death if the matter is reported to the police. We made complaint to the police but police but police did not lodge the report. Then we moved an application in the Hon'ble High Court and then only our complaint was lodged. Police has not correctly recorded my statement. Only Khalid accused is present and the other accused are not present in the Court today. My statement was recorded before the Magistrate on 27.3.2009 which is Ex.PB. I was also medicolegally examined in CHC Nuh. xxxxx by Sh. Abdul Hannan, counsel for accused. It is incorrect to suggest that I am deposing falsely. It is incorrect to suggest that Khalid accused did not commit rape upon me. (At this stage, further cross examination of the witness is deferred as an application u/s 319 Cr.P.C. is filed by the prosecution).” CRR No.1042 of 2010 (O&M) -4- After the completion of the examination in chief and part of the cross-examination by the learned counsel for the accused, an application under Section 319 Cr.P.C. was moved by the prosecution, requesting the Court to summon the present revisionists as additional accused to face the trial. Learned trial Court has allowed the application vide impugned order, hence present revision. At the outset, learned counsel for the petitioners have vehemently argued that power under Section 319 Cr.P.C. cannot be exercised before the completion of the cross examination of the prosecution in view of the dictum of the Hon'ble Apex Court in the matter of Mohd. Shafi Vs. Mohd. Rafiq & Anr., 2007(2) RCR (Criminal) 762. They have further argued that since matter of Mohd. Shafi (supra) has already been referred to the Larger Bench in the case of Hardeep Singh Vs. State of Punjab & Ors, 2009(16) SCC 785, hence hearing of the present petition be deferred till decision comes from the Larger Bench of the Hon'ble Supreme Court. In the present case a minor girl of about 14 years is victim of gang rape. She was forcefully abducted/kidnapped by dragging her into santro car. She was taken to Sohna Guest House and was subjected to gang rape. FIR was lodged on 25.3.1009. Then statement under Section 164 Cr.P.C. was recorded on 27.3.2009. She was examined on oath before the trial Court on 25.1.2010. Impugned order was passed on 27.2.2010. Present revision is pending from 1.4.2010. In the opinion of this Court trial of gang rape of minor girl should be concluded at the earliest. A minor child victim of gang rape should not be dragged to Court for long period to avoid psychological pressure and mental agony. CRR No.1042 of 2010 (O&M) -5- Her examination-cross examination must be concluded at the earliest. In view of above and for the reasons narrated hereinafter, I am not inclined to adjourn the case sine die as suggested by learned counsel for the revisionists. I have heard all the learned counsel appearing for each of the revisionist, Deputy Advocate General and have perused the record carefully. Hon'ble Apex Court in the matter of Ram Pal Singh & others versus State of U.P. and another, 2009(2) RCR(Criminal) 131 in para Nos. 15 and 16 has observed as under: - “15. The ingredients of Section 319 are unambiguous and indicate that where in the course of inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence, for which such person could be tried together with the accused, the Court may proceed against such person for the offence he has committed. 16. All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.” Hon'ble Apex Court in the matter of Ram Singh & Ors. Vs. Ram Niwas & Anr., 2009(3) RCR(Criminal) 501 in para No.17 has observed as under: - “The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court's jurisdiction under Section 319 of the Code. We have noticed hereinbefore the importance of the word 'appears'. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case.” CRR No.1042 of 2010 (O&M) -6- Hon'ble Apex Court in the matter of Suman Vs. State of Rajasthan and another, 2010(1) Criminal Court Cases 269 (S.C.) in para No.11 has held as under: - “11. Section 319 Cr.P.C. applies to all the Courts including the Sessions Court. It empowers the Court to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with other accused. If such person is not attending the Court, he can be arrested or summoned. If he is attending the Court, although not under arrest or upon a summons, he can be detained by such Court for the purpose of inquiry into, or trial of the offence which he appears to have committed. Sub-section (4) lays down that where the Court proceeds against any person under sub- section (1), the proceedings in respect of such person shall be commenced afresh and witnesses are reheard. A reading of the plain language of sub- section (1) of Section 319 Cr.P.C. makes it clear that a person not already an accused in a case can be proceeded against if in the course of any inquiry into or trial of an offence it appears from the evidence that such person has also committed any offence and deserves to be tried with other accused. There is nothing in the language of this sub-section from which it can be inferred that a person who is named in the FIR or complaint but against whom charge-sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence the Court finds that such person has committed any offence for which he could be tried together with the other accused.” From the dictum of the Hon'ble Apex Court as cited herein above, it is, thus, clear that a person against whom no charge had been framed, but whose complicity appears to be clear from the evidence, if unrebutted, would lead to conviction of the person sought to be summoned as additional accused and Court finds that such an person should be tried with other accused, then such person shall be summoned CRR No.1042 of 2010 (O&M) -7- to face trial under Section 319 Cr.P.C. Evidence has been defined under Section 3 of the Evidence Act as under: - “Evidence”. - “Evidence” means and includes - (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.” In the opinion of this Court, statement of the prosecutrix recorded by the Magistrate under Section 164 Cr.P.C. for the purpose of Section 319 Cr.P.C. will amount to evidence. I have carefully perused the statement recorded under Section 164 Cr.P.C. as well as statement of the prosecutrix recorded before the trial Court. I have absolutely no doubt in my mind that prosecutrix was about 14 years of age on the date of incident. Vakil was driving the santro car, in which prosecutrix was dragged forcefully. Khalid put country made pistol on the temporal of the prosecutrix. Arshad gagged her mouth. Irfan has put cloth on her eyes and thereafter she was taken to the guest house in Sohna and was subjected to rape. All the accused have played clear role in the abduction/kidnapping of prosecutrix by dragging her into the car and in taking her to Sohna Guest House and, therefore, committing gang rape. In view of the above, all the revision petitions stand dismissed. Any observation made in the body of this judgment is only for the purpose of deciding the present petition, therefore, shall have no CRR No.1042 of 2010 (O&M) -8- bearing on the merit of the trial. A copy of this order be placed on the files of connected petitions. (Alok Singh) Judge February 09, 2011 R.S.