IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 222-DB of 2007 DATE OF DECISION : 25.03.2010 Joginder Singh and others .... APPELLANTS Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. T.S. Sangha, Senior Advocate, with Mr. Ashok Bhardwaj, Mr. J.S. Lally and Mr. H.S. Sangha, Advocates, for appellant No.2. Mr. H.S. Sullar, Advocate, for appellants No.1 and 3. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellants Joginder Singh, Jai Bhagwan and Surinder Singh have directed this appeal against the judgment dated 31.1.2007, passed by the court of Additional Sessions Judge, Kaithal, whereby they have been convicted under Sections 366, 342, 376 (2) (g) and 506 read with Section 34 IPC; and against the order of sentence dated 3.2.2007, whereby they have been sentenced as under : Under Section Sentence 366/34 IPC To undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for a period of three months. Crl. A. No. 222-DB of 2007 -2- 342/34 IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for a period of one month. 376(2)(g)/34 IPC To undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for a period of three years. 506/34 IPC To undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 5,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for a period of three months. All the fine levied upon the appellants was ordered to be given to Pooja and Ankit, the children of Anita, the prosecutrix, in the form of compensation in equal shares and the said amount was ordered to be deposited in any of the nationalized bank for the period till they attain the majority. All the sentences were ordered to run concurrently. 2. In the present case, all the three appellants were tried by the court of Additional Sessions Judge, Kaithal, for commission of the offences of abduction, illegal confinement and rape of Anita alias Sunita (hereinafter referred to as `the prosecutrix'), a married woman, aged about 25-26 years, having two children of the age of 7 years and 5 years. She was married to Mohinder Singh (DW.1), an agriculturist, about 11 years prior to the day of occurrence. Her husband and children were residing in village Serdha. 3. As per the prosecution version, on 21.4.2005, in the noon time, when the prosecutrix was going to her fields, then accused Joginder Singh, a resident of village Serdha, forcibly took her inside a Kotha existing in his Crl. A. No. 222-DB of 2007 -3- fields and committed rape on her against her wishes, giving threat to kill her son, in case she raised any noise. Thereafter, accused Surinder Singh, a resident of the same village, was pushed inside the Kotha of accused Joginder Singh. Then he also committed rape on the prosecutrix against her wishes. Thereafter, the prosecutrix was taken to Gurgaon in a vehicle. She was kept in a room as hostage, where accused Jai Bhagwan, a resident of village Dumarkhan, District Jind, owner of a transport company, who was residing at Gurgaon in connection with his work, committed rape on her against her consent. After two days, she was taken by the accused in another room in a Basti at Gurgaon, where all the three accused under the threat had regularly committed rape on her without her consent. They were not leaving the prosecutrix alone in that room. On 14.5.2005, members of her family, namely Pala Ram (PW.1), Nasib Singh (PW.2) and Ramesh (PW.3) reached in that Basti at Gurgaon in her search and on seeing them, all the three accused had left her and ran away from the spot. Then the aforesaid family members brought her to Rajound, where she made statement (Ex.PO) to ASI Raj Mal (PW.11), on the basis of which formal FIR (Ex.PO/2) was registered in Police Station Rajound against all the three accused. 4. It is to be mentioned here that after disappearance of the prosecutrix from the village on 21.4.2005, her husband Mohinder Singh lodged a missing report on 4.5.2005 with the police of Police Station Rajound, on the basis of which DDR No. 45 (Ex.PD) was recorded. In the said DDR, it was got recorded by Mohinder Singh that his wife Anita Crl. A. No. 222-DB of 2007 -4- (prosecutrix) aged about 25 years, having two children of the age of 7 years and 5 years, was missing since the morning of 21.4.2005. He enquired from the neighbourers, but they did not tell any thing about her. Then he also enquired from his in-laws, but she did not reach there. He stated that till the day of reporting the matter, he had searched her in his relations, but he could not find any clue about her, therefore, she may be traced. It is specifically mentioned here that in his report (Ex.PD), he did not raise any suspicion on any one. 5. On 14.5.2005, the prosecutrix was medico legally examined by Dr. Renu Chawla (PW.10). She did not find any mark of injury on the body of the prosecutrix. Vagina admitted two fingers easily. Two slides with secretion from posterior fornix were taken for semen analysis. The clothes worn by the prosecutrix were taken into possession and were sent for chemical examination. As per the FSL report (Ex.PN), no semen was detected on any of the clothes and the glass slides. However, in the opinion of the Doctor, the possibility of rape could not be ruled out. In cross- examination, she had stated that when the rape is forcibly committed on a woman without her consent, then there is possibility of abrasion and contusion on various parts of the body of the lady. She further stated that she had given the opinion that possibility of rape could not be ruled out, because the prosecutrix was a married lady. 6. After two days i.e. on 16.5.2005, statement of the prosecutrix under Section 164 Cr.P.C., was recorded by Smt. Bimlesh Tanwar (PW.16), Crl. A. No. 222-DB of 2007 -5- Additional Chief Judicial Magistrate, Kaithal, wherein she made the similar statement, as was made by her before the police on 14.5.2005. 7. During investigation, accused Joginder Singh was arrested on 20.5.2005. On 21.5.2005, during interrogation, he suffered disclosure statement (Ex.PH) and in pursuance of the same, he identified the places, where he along with his co-accused committed rape upon the prosecutrix. Accused Jai Bhagwan and Surinder Singh were arrested on 11.6.2005 and 2.8.2005, respectively. They also suffered their disclosure statements and identified the places, where they along with their co-accused committed rape upon the prosecutrix. All the three accused were got medico legally examined and in the opinion of the Doctor, there was nothing to suggest that the accused were incapable of performing sexual inter-course. 8. After completion of investigation, the challan was filed against all the three accused. Before the case could be committed to the court of Sessions, the prosecurix expired on 29.8.2005, due to heart problem (as stated by her husband Mohinder Singh DW.1). Thereafter, the case was committed to the court of Sessions. Charges under Sections 376 (g), 366, 342 and 506 read with section 34 IPC were framed against all the accused, to which they did not plead guilty and claimed trial. 9. In support of its case, the prosecution examined 17 witnesses. 10. PW.1 Pala Ram, PW.2 Nasib Singh and PW.3 Ramesh are relatives of the prosecutrix, who traced the prosecutrix in Gurgaon and rescued her and brought her to village Rajound. They did not support the Crl. A. No. 222-DB of 2007 -6- case of the prosecution. In the court, they stated that on 14.5.2005, they received a telephone message from one Rameshwar (maternal uncle of the husband of the prosecutrix) from village Chatter, to the effect that the prosecutrix was present in his house, as she had come from Beas Dera. On receiving the said information, all these three witnesses went to village Chatter in a car and brought the prosecutrix to their village. Thereafter, some villagers took her to the police station, where her signatures were obtained on some blank papers. These witnesses were declared hostile and were cross-examined. In cross-examination, they stated that they did not make statements (Ex.PA, Ex.PB and Ex.PC) to the police. They further stated that the prosecutrix was mentally disturbed since long and earlier also, due to that disease, she had left her house for two/three times. They also stated that accused Joginder Singh was running a Karyana shop in the village and accused Surinder Singh is also a resident of the village. They further stated that from 21.4.2005 to 14.5.2005, both these accused were seen by them in the village, many times. 11. PW.4 HC Rajbir Singh proved DDR No. 45 dated 4.5.2005 (Ex.PD) regarding the missing of the prosecutrix, lodged by her husband. PW.5 Lady Constable Sunita stated that the medical examination of the prosecutrix was conducted by Dr. Renu Chawla in her presence and the Doctor handed over to her one parcel of envelope, forwarding letter along with MLR and the sample seal. The Doctor also handed over to her one sealed parcel of the clothes and one parcel of slide sealed with the seal of Crl. A. No. 222-DB of 2007 -7- Doctor and one sample seal. The parcels were handed over by this witness to Raj Mal ASI, the Investigating Officer of the case. PW.6 Dilbag Singh Patwari is the formal witness, who prepared scaled site plan (Ex.PG) of the place of occurrence. PW.7 HC Rattan Singh is the attesting witness of the disclosure statement (Ex.PH) made by accused Joginder Singh and memos of identification (Ex.PJ and Ex.PK). PW.8 Dr. Ajit Pal Singh conducted medical examination of accused Jai Bhagwan and proved the MLR of accused Jai Bhagwan (Ex.PK/1). PW.9 Mohinder Singh Constable is the attesting witness to the disclosure statement (Ex.PL) made by accused Surinder Singh and the memo of identification (Ex.PL/1). PW.10 Dr. Renu Chawla conducted medical examination of the prosecutrix and proved the MLR of the prosecutrix (Ex.PM). PW.11 Raj Mal ASI is the Investigating Officer of the case. PW.12 Dr. Amarjit Singh conducted medical examination of accused Surinder Singh and proved the MLR of the said accused (Ex.PR). PW.13 EHC Dhoop Singh is the formal witness, who tendered into evidence his affidavit Ex.PS. PW.14 Mahabir Parshad ASI and PW.15 Rajinder Singh SI are also the Investigating Officers, who partly investigated the case. PW.16 Smt. Bimlesh Tanwar, Addl. Chief Judicial Magistrate, Kaithal, stated that on 16.5.2005, on an application (Ex.PCC) moved on behalf of the police, she recorded the statement of the prosecutrix under Section 164 Cr.P.C., (Ex.PDD). PW.17 Dr. Hambir Masoomdar stated that on an application (Ex.PY) moved by the police, he opined that the external genitalia of accused Joginder Singh were developed and other Crl. A. No. 222-DB of 2007 -8- sexual character was also developed. He further stated that there was no evidence to suggest that Joginder Singh was not capable of sexual intercourse. 12. In their statements recorded under Section 313 Cr.P.C., the accused denied all the allegations appearing against them in the prosecution evidence. They pleaded innocence and false implication in the case. In defence, they examined DW.1 Mohinder Singh, husband of the prosecutrix, who stated that the prosecutrix was his wife. She died on 29.8.2005 due to heart problem. She was mentally disturbed from the very beginning. On 21.4.2005, in the night at about 9.00 PM, she left the house due to mental problem. They searched her in their relations, but could not trace her. Thereafter, he lodged the missing report in Police Station Rajound. On 14.5.2005, they received telephonic information from village Chattar, where the maternal uncle of this witness was residing, that the prosecutrix was at his house. Thereafter, cousin of this witness went there and brought her back to his village. She was taken by the villagers to the Police Station, without his consent, as she was mentally disturbed. 13. The trial court, after considering the evidence available on record, primarily while relying upon the statement (Ex.PDD) of the prosecutrix made by her under Section 164 Cr.P.C., before the Judicial Magistrate, convicted and sentenced the appellants, as indicated above. It has been held by the trial court that the said statement of the prosecutrix is relevant and admissible, as a substantive evidence against the accused under Crl. A. No. 222-DB of 2007 -9- Section 33 of the Indian Evidence Act, 1872 (hereinafter referred to as `the Evidence Act'). While coming to the said conclusion, the trial court has relied upon the judgments of the Hon'ble Supreme Court in Sitaji v. Bijendernarain, AIR 1954 SC 601, State of Maharashtra v. Damu, AIR 2000 SC 1691 and PV Radhakrishna v. State of Karnataka, AIR 2003 SC 2895. The trial court found the statement of the prosecutrix made by her under Section 164 Cr.P.C., as wholly reliable and trust-worthy, as the same was made by her before her un-natural death, which according to the trial court had taken place under mysterious circumstances. It has been further observed that statement of the prosecutrix made under Section 164 Cr.P.C., before the Judicial Magistrate on 16.5.2005, is not only trust-worthy, but it stands on high pedestal as the same is having the evidentiary value of a dying declaration, because the said statement was her last statement before her death given in the court. Primarily, on the aforesaid reasoning, the trial court convicted and sentenced all the accused. 14. Shri T.S. Sangha, Senior Advocate, assisted by Shri Ashok Bhardwaj, Shri J.S. Lally, Shri H.S. Sangha, and Shri H.S. Sullar, Advocates, appearing on behalf of the appellants, argued that in the instant case, the trial court has committed grave illegality while convicting the appellants for the offences under Sections 366, 342, 376 (2) (g) and 506 read with Section 34 IPC, without there being any legal evidence against them. He argued that from the medical evidence led by the prosecution, neither it is established beyond a reasonable doubt that all the three accused Crl. A. No. 222-DB of 2007 -10- forcibly committed repeated rape on the prosecutrix nor the semen of the accused was noticed on the clothes. He further argued that none of the family members or relatives or even husband of the prosecutrix has supported the prosecution case. According to them, due to the mental problem, the prosecutrix left the house on 21.4.2005 and in this regard, a missing report was lodged by her husband on 4.5.2005. Subsequently, on 14.5.2005, they received information that the prosecutrix had reached the house of the maternal uncle of her husband at village Chattar, from where they brought her back to the village. PW.1 Pala Ram, PW.2 Nasib Singh, PW.3 Ramesh and DW.1 Mohinder Singh categorically stated that the prosecutrix did not tell them that she was illegally abducted by the accused or was raped by them. They further categorically stated that accused Joginder Singh and Surinder Singh, who are residents of village Serdha, were seen in the village from 21.4.2005 to 14.5.2005. Thus, except the statement of the prosecutrix under Section 164 Cr.P.C., made by her on 16.5.2005 before the Judicial Magistrate, there is no evidence, which connects the accused with the commission of the crime. Learned counsel, while referring to the various judicial precedents, vehemently argued that the said statement of the prosecutrix under Section 164 Cr.P.C., is not a substantive piece of evidence, on the basis of which conviction of the accused for the alleged serious offences can be recorded and upheld. Learned counsel argued that the said statement of the prosecutrix is not relevant and does not have any evidentiary value either under Section 33 or Crl. A. No. 222-DB of 2007 -11- Section 32 of the Evidence Act, and the learned trial court has gravely erred in law while taking the said statement as a substantive evidence against the accused. Learned counsel argued that conviction of the appellants without there being any evidence is nothing but a moral conviction, by taking sympathy on the ground that after about four months of the occurrence, the prosecutrix died an un-natural death in mysterious circumstances, though there is no such evidence or even allegation on the record. Learned counsel argued that a moral conviction regarding the guilt of an accused has no place in the criminal jurisprudence. An order of conviction can be based only on legal evidence and not on hypothetical propositions or unwarranted inferences. According to him, suppositions cannot take the place of legal proof in a criminal trial, therefore, in the instant case, conviction of the appellants and the sentence awarded to them by the trial court is wholly illegal and unsustainable. 15. On the other hand, Shri S.S. Randhawa, learned Additional Advocate General, Haryana, appearing for the State of Haryana, vehemently argued the case in support of the prosecution on the same reasoning, as given by the trial court, while convicting the appellants. However, he could not dispute that the judgments relied upon by the trial court are not applicable to the facts and circumstances of the case. 16. We have considered the various submissions made by learned counsel for the parties and perused the record of the case. 17. From the evidence led in this case, it has been established that Crl. A. No. 222-DB of 2007 -12- the prosecutrix, who was a married woman having two children, aged about 7 years and 5 years, went missing from the village since the morning of 21.4.2005. No body had seen her going out of the village with any of the accused. From the said day, she was searched by her husband Mohinder Singh (DW.1) and other family members in the village Serdha, and also in the villages of her parents and other relatives. When she could not be traced, on 4.5.2005, a missing report vide DDR No. 45 (Ex.PD) was lodged by her husband Mohinder Singh at Police Station Rajound, wherein it was stated by him that his wife (prosecutrix) was missing from the house since the morning of 21.4.2005. On enquiry from neighbourers, her parents and other relatives, she could not be traced. No clue with regard to her disappearance was found, therefore, she may be traced. In the said report, the husband did not raise any suspicion on any one, regarding the disappearance or missing of his wife. 18. On 14.5.2005, the prosecutrix was found in Gurgaon. She was brought back to the village by her relatives, namely PW.1 Pala Ram, PW.2 Nasib Singh and PW.3 Ramesh. Then her statement (Ex.PO) was recorded by ASI Raj Mal (PW.11), on the basis of which formal FIR (Ex.PO/2) was registered against all the accused. In that statement, the prosecutrix stated that she was abducted by accused Joginder Singh from the village; he and Surinder Singh committed rape on her without her consent. Thereafter, she was illegally confined in a room at Gurgaon, where all the three accused committed rape on her without her consent. On 14.5.2005, her aforesaid Crl. A. No. 222-DB of 2007 -13- family members reached at Gurgaon in her search and on seeing them, all the accused left her and ran away. Then her family members brought her to the village. On 14.5.2005 itself, the prosecutrix was medico legally examined by Dr. Renu Chawla (PW.10). No mark of injury was found on her body. Her vagina admitted two fingers easily. Doctor gave the opinion that possibility of committing rape on her could not be ruled out. However, in cross-examination, she stated that she had given the said opinion because the prosecutrix was a married lady. Therefore, the medical evidence does not clearly indicate that the forcible repeated rape was committed on the prosecutrix without her consent. The link evidence led by the prosecution to establish that the repeated rape was committed by the accused on the prosecutrix also does not help the prosecution, because as per the FSL report (Ex.PN), no semen was detected on any of the clothes of the prosecutrix as well as the glass slides of the vagina swab taken by the Doctor during the medical examination. 19. The prosecution version, about abduction, illegal confinement and committing of rape under threat, is based upon the statement of the prosecutrix, which she had made before the police on 14.5.2005 and was reiterated by her before the Judicial Magistrate on 16.5.2005, when her statement under Section 164 Cr.P.C. was recorded. It has come on record that the prosecutrix died on 29.8.2005, before she could be examined in court. In order to prove the above said version, the prosecution has examined three material witnesses, namely Pala Ram (PW.1), Nasib Singh Crl. A. No. 222-DB of 2007 -14- (PW.2) and Ramesh (PW.3). According to the version of the prosecutrix, these persons came to Gurgaon in her search. On seeing them, the accused ran away from the spot. Thereafter, these persons brought her to the village. None of these three witnesses supported the prosecution version. According to them, on 14.5.2005, they received a telephonic message from maternal uncle of the husband of the prosecutrix from village Chatter, to the effect that the prosecutrix was present in her house, as she had come from Beas Dera. On receiving the said information, they went to village Chatter and brought the prosecutrix to the village. None of these three witnesses had stated that they had rescued the prosecutrix from the clutches of the accused or on seeing them, the accused had run away from the spot, where the prosecutrix was kept confined. Except these three witnesses, the prosecution did not examine any other witness to prove that the prosecutrix was abducted from the village by the accused and was illegally kept confined at Gurgaon, where repeated rape was committed on her without her consent, or that during the period from 21.4.2005 to 14.5.2005, she was seen in the company of the accused. All the aforesaid three witnesses were declared hostile and were cross examined by the prosecution. In their cross- examination, they have categorically stated that they did not make statements (Ex.PA, Ex.PB and Ex.PC) to the police. They further stated that the prosecutrix was mentally disturbed since long and on earlier occasion also, she had left the house for two/three times. These witnesses have further stated that from 21.4.2005 to 14.5.2005, accused Joginder Singh and Crl. A. No. 222-DB of 2007 -15- Surinder Singh, who are residents of village Serdha, were seen in the village many times. They further stated that the prosecutrix did not tell them that any rape was committed on her by the accused in her village or she was illegally confined at Gurgaon by them, where they had committed rape on her. In addition to the statements made by these three witnesses in the court, it is pertinent to mention that Mohinder Singh, the husband of the prosecutrix, who lodged the missing report on 4.5.2005, appeared in the court as a defence witness for deposing against the prosecution case. According to him, his wife was mentally disturbed. On 21.4.2005, she left the house due to mental problem. He further stated that when she could not be traced, a missing report was lodged by him. He further stated that subsequently, on 14.5.2005, they received telephonic information from village Chattar that the prosecutrix was at the house of his maternal uncle. Thereafter, his cousin went there and brought the prosecutrix back to the village. He further stated that some villagers had taken the prosecutrix to the Police Station, where