Criminal Appeal No. 165-SB of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 165-SB of 1996 Date of Decision: 26.03.2009 1. Vir Singh son of Ram Chander son of Lok Ram aged 24 years, resident of Buwan. 2. Rohtas son of Bir Singh son of Rugha aged 21 years, resident of Khapar. 3. Parveen Kumar son of Lal Chand son of Chhotu Ram, aged 21 years resident of Buwan. ... Appellants Versus The State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bipan Ghai, Senior Advocate, with Mr. Deepak Garg, Advocate, for the appellants. Mr. P.S. Sullar, Deputy Advocate General , Haryana, for the respondent. Mr. Sudhir Sharma, Advocate, for the complainant. SHAM SUNDER, J. This appeal is directed against the judgment of conviction and the order of sentence, dated 03.02.96, rendered by the Court of Additional Sessions Judge, Hisar, vide which, it convicted the accused (now appellants), and sentenced them as under:- Criminal Appeal No. 165-SB of 1996 2 Name of the accused (now appellant) Offence for which convicted Sentence awarded 1 2 3 Vir Singh Under Section 366 of the Indian Penal Code. To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2000/-, in default thereof, to further undergo rigorous imprisonment for a period of two years. Under Section 376 of the Indian Penal Code. To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 3000/-, in default thereof, to further under go rigorous imprisonment for a period of two years. Rohtas Under Section 366 of the Indian Penal Code. To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2000/-, in default thereof, to further undergo rigorous imprisonment for a period of two years. Under Section 376 of the Indian Penal Code. To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 3000/-, in default thereof, to further under go rigorous imprisonment for a period of two years. Criminal Appeal No. 165-SB of 1996 3 Name of the accused (now appellant) Offence for which convicted Sentence awarded Parveen Kumar Under Section 366 of the Indian Penal Code. To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2000/-, in default thereof, to further undergo rigorous imprisonment for a period of two years. Under Section 376 of the Indian Penal Code. To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 3000/-, in default thereof, to further under go rigorous imprisonment for a period of two years. All the substantive sentences were ordered to run concurrently. 2. The facts, in brief, are that on 31.03.94, Desraj, his wife Veera, and his children, including the prosecutrix, who was aged about 16 years, were sleeping in their house. At about 11.00 PM, the accused criminally trespassed into the house of Desraj. They woke up the prosecutrix and took her outside the house. Desraj, and his wife, came behind them. In the meanwhile, Bhajan Lal, brother of Des Raj, and Salwinder, neighbourer, also came there. A jeep was standing outside the house of Desraj. The accused took the prosecutrix in the said jeep by inducing her. Desraj, and his family members, tried to locate the prosecutrix, but they could not succeed. Ultimately, a statement, on 05.04.94, was made by Desraj, which formed the basis of the first Criminal Appeal No. 165-SB of 1996 4 information report, exhibit PQ. Thereafter, Jhuthar Singh, who was posted as Assistant Sub Inspector, in Police Station Bhuna, accompanied by the complainant, as also his two companions, came to his house. He recorded the statements of the wife of the complainant, as also of Bhajan Lal, and Salwinder. The site plan of the said place exhibit PS, was prepared with correct marginal notes. The prosecutrix and the accused were searched, but could not be located. 3. On 09.04.94, Jhuthar Singh, Investigating Officer, received a secret information that the prosecutrix and the accused were present in a canteen located in a cinema hall, at Bhuna. Bhajan Lal and Mange Ram, Sarpanch, were joined. The Police alongwith them went to the canteen and found the prosecutrix sitting with the accused. The prosecutrix was, thus, recovered and memo PR was prepared, in that regard. The accused was arrested. The statements of Mange Ram, Bhajan Lal, and the prosecutrix were recorded. PT site plan of the place of recovery of the prosecutrix and arrest of the accused was prepared. On the same day, the Investigating Officer, got the prosecutrix medico- legally examined, from a lady doctor, from Civil Hospital, Fatehabad, by presenting a written request PL. After the medico-legal examination, the lady doctor handed over three sealed parcels to him. On the same day, he got the three accused medico-legally examined, from the doctor of Primary Health Centre, Bhuna. The three sealed parcels containing the underwears of the three accused, were taken into possession, by the Investigating Officer, vide memo PU. Criminal Appeal No. 165-SB of 1996 5 4. On 15.04.94, the Investigating Officer, took the prosecutrix to a Judicial Magistrate and got recorded her statement under Section 164 of the Code of Criminal Procedure. In the intervening period, the custody of the prosecutrix was entrusted to her parents, vide memo PV. After the completion of investigation, the accused were challaned. 5. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, Charge under Sections 366 and 376 (2) (g) of the Indian Penal Code, was framed against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 6. The prosecution, in support of its case, examined Dr. S.K. Dogra, Senior Medical Officer, General Hospital, Fatehabad (PW1), who on 11.4.94, on Police request PA, conducted the ossification test of the prosecutrix. 7. Shamsher Singh, Draftsman, Hansi (PW2), prepared the scaled map PC, at the instance of Bhajan Lal, Desraj, and the prosecutrix. 8. Dr. Suraj Kamboj, Medical Officer, Bhuna (PW3), on 09.04.94, at 5.10 PM, on the request of Police, contained in application PG, medico-legally examined Vir Singh, Rohtas, and Parveen Kumar, accused, and found that there was nothing to suggest that they were incapable of committing sexual intercourse. In respect of Rohtas, accused, he found the presence of smegma. Criminal Appeal No. 165-SB of 1996 6 9. Dr. Ramesh Chakrawarti, Medical Officer, Civil Hospital, Fatehabad (PW4), conducted the medico-legal examination of the prosecutrix on 09.04.94, at 6.00 PM. He did not find any mark of injury on the person of the prosecutrix. There was no vulval injury. She was found bleeding per vagina, but it was slight bleeding due to the 4th day of menstrual period, which she was undergoing. Hymen was old ruptured. One finger could go inside her vagina easily. She handed over the trouser (salwar) and underwear, which were worn by the prosecutrix, at the time of medico-legal examination, as also the sealed parcel containing pubic hair, two vaginal smear slides, and a sealed envelope, containing copy of the MLR and a letter to the Police. 10. The prosecutrix appeared as (PW5), and stated that she had been made to sit, in a jeep, by the accused and thereafter she was taken at the pistol point. She also stated that the accused committed sexual intercourse with her, without her consent. 11. Des Raj, complainant, and father of the prosecutrix appeared as (PW6), and made a statement, in terms of the allegations, contained the first information report. 12. Mange Ram (PW7), stated that on 05.04.94, Desraj, came to him and informed that the prosecutrix was missing. He further stated that then they went in search of the prosecutrix, and came to know that they had already left for Nagpur. He further stated that on 09.04.94, when they were returning from Nagpur and reached Bhuna, they noticed the accused and the prosecutrix inside the canteen of the Criminal Appeal No. 165-SB of 1996 7 cinema and, ultimately, they were apprehended. 13. Jhuthar Singh, Sub Inspector (PW8), is the Investigating Officer. He conducted the investigation and proved various documents. 14. Sh. B. Dewakar, Sub Divisional Judicial Magistrate, Fatehabad (PW9), recorded the statement exhibit DB, under Section 164 of the Code of Criminal Procedure, of the prosecutrix. 15. The Public Prosecutor for the State, tendered into evidence, reports of the Forensic Science Laboratory exhibit PBB and PBB/1, and closed the prosecution evidence. 16. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Vir Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that infact the prosecutrix had love with him, and she wanted to perform marriage with him, but her parents wanted to perform her marriage with some other boy. He further stated that, on account of this reason, he was falsely implicated by the father of the prosecutrix. 17. Rohtas, accused, in his statement under Section 313 of the Code of Criminal Procedure, stated that the prosecutrix was in love with Vir Singh, and she wanted to contract marriage with him, but her parents did not like this. It was further stated by him, that she of her own went away with Vir Singh. He further stated that he being the friend of Vir Singh, was falsely implicated, in the instant case, by the Criminal Appeal No. 165-SB of 1996 8 parents of the prosecutrix. 18. Parveen Kumar, accused, in his statement, under Section 313 of the Code of Criminal Procedure, also took up the same plea, as was taken by Rohtas, accused. 19. The accused examined Ram Niwas, LRC, English Office, Sessions Court, Hisar (DW1), in defence. Thereafter, the accused closed the defence evidence. 20. After hearing Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 21. Feeling aggrieved, the instant appeal, was filed by the appellants. 22. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 23. The first question, that falls for determination, is, as to whether, the prosecutrix was kidnapped by the accused with an intent to compel or seduce her to illicit intercourse and, thus, they committed the offence punishable under Section 366 of the Indian Penal Code. No doubt, as per exhibit PN, the certificate of Matriculation Examination, the date of birth of the prosecutrix is recorded as 15.08.77, and the alleged occurrence took place on 31.03.94. At that time, the prosecutrix was aged about 16 years and 8 months. She was, thus, below 18 years of age, at the time of the alleged occurrence. Des Raj, PW6, father of the prosecutrix, in his examination-in-chief, stated that at about 11.00 Criminal Appeal No. 165-SB of 1996 9 PM, when he was sleeping alongwith his wife and children in the courtyard of his house, he heard cries, which disturbed his sleep. He further stated that accused Vir Singh, Parveen, and Rohtas, were seen by him in his house. He further stated that they were dragging his daughter i.e. the prosecutrix. He further stated that Parveen and Rohtas, had caught hold his daughter of her arms, whereas, Vir Singh, was holding a pistol in his hands, and was pushing her back. He further stated, in his examination-in-chief, that a jeep outside his house was standing and the engine thereof, was running. He further stated that Salwinder, his neighbourer, and his brother Bhajan Lal, reached there. It was further stated by him, that when he tried to rescue his daughter from being forcibly taken away by the accused, they threatened them, at the pistol point. However, during the course of cross-examination, he deposed that in his statement PQ, he stated that Parveen and Rohtas, had caught hold the prosecutrix of her arms and Vir Singh, was holding a pistol in his hands, as also pushing her from her back (when his attention was drawn to statement PQ, this fact was not found recorded therein). It was further deposed to by him, in his cross-examination, that he stated, in his statement PQ, before the Police, that the engine of the jeep was running when he got up (when his attention was drawn to statement PQ, this fact was not found recorded therein). It was further deposed to, by him, in his cross-examination, that he had stated in his statement PQ, before the Police, that when he tried to rescue his daughter i.e. the prosecutrix, Vir Singh, accused, threatened them with Criminal Appeal No. 165-SB of 1996 10 a pistol and also declared that, in case, they dared come forward, they will be shot dead (when his attention was drawn to statement PQ, this fact was not found recorded therein). It was further deposed to by him, during the course of his cross-examination, that he stated in his statement PQ, before the Police, that on the same night, he arranged a jeep and chased the accused (when his attention was drawn to statement PQ, this fact was not found recorded therein). He further deposed, during the course of his cross-examination, that he had not stated in his statement PQ, before the Police, that the accused took away his daughter by enticing her (when he was confronted with portion A to A1 of his statement PQ, before the Police, this fact was found recorded therein). This witness, thus, made improvements and contradictions in his statement in the Court, over his previous statement exhibit PQ. The prosecutrix, when appeared as PW5, during the course of her cross-examination, deposed that in her statements before the Police and the Magistrate, she stated that the three accused threatened her with pistol (when her attention was drawn to exhibit DA and DB this fact was not found recorded therein). She further deposed, during her cross-examination, that she stated in her statements that Vir Singh, was armed with a pistol (when her attention was drawn to DA and DB this fact was not found recorded therein). It is, thus, evident from the perusal of the evidence of both these witnesses, in entirety, that the accused did not allegedly take the prosecutrix forcibly. It is further evident, from their statements that Vir Singh, was not having any Criminal Appeal No. 165-SB of 1996 11 pistol, nor did he threaten Des Raj and other persons, that if they came forward, they would face the dire consequences. These witnesses had scant regard for truth. The improvements and contradictions, were made by these witnesses, on material points. These improvements and contradictions, clearly prove that the statements made by Des Raj and the prosecutrix in examination-in-chief are nothing but a tissue of lies. In Yudhistir Vs. State of M.P., AIR 1977, S.C. (Crl.), 684, the principle of law, laid down, was to the effect, that when a particular fact deposed to by the witness, does not find mention in the FIR and the statement under Section 161 Cr.P.C., it is an improvement and it cannot be considered. If the improvements and contradictions made by these witnesses, in their statements, are excluded, then nothing is left, on the record, to prove that the accused allegedly took the prosecutrix out of the keeping of her lawful guardianship, with an intent to compel her to illicit intercourse. Des Raj,PW6, also stated that he was having a dang with him, at the relevant time, but he did not inflict any injury, on the person of the accused, when they were taking his daughter i.e. the prosecutrix forcibly. Even two other persons namely Salwinder, and Bhajan Lal brother of Des Raj, according to him, had come to the spot. It could not be imagined, that three persons, were not able to restrain the accused, from allegedly forcibly taking away the prosecutrix, with them. No father and uncle, could be expected to keep silent, on seeing their daughter and niece, being forcibly taken away, without inflicting injuries on the person of the accused, especially when they were armed Criminal Appeal No. 165-SB of 1996 12 with a dang so as to save the prosecutrix and restrict the movements of the accused. The conduct of Des Raj, Salwinder, and Bhajan Lal, was also most unnatural and improbable. Even Bhajan Lal brother of Des Raj, and Salwinder, who according to him (Des Raj), reached the spot before the prosecutrix was allegedly taken away forcibly, by the accused, were not examined by the prosecution. They were given up as unnecessary. They were the material witnesses, who could throw light, as to what happened on that night, when the prosecutrix was allegedly forcibly taken away, by the accused. It means that the prosecution withheld the best evidence, in its possession. On the other hand, as would be discussed hereinafter, the prosecutrix was a consenting party. She was mature enough, to decide between her good and bad, at the time of the alleged occurrence. Not only this, exhibit DC, is the letter, handwritten by the prosecutrix, which she admitted, though her father denied the same. No doubt, the prosecutrix stated that she was forcibly, made to write this letter to the accused. However, this letter is of two hand written pages. When this letter is read in conjunction with the photographs D1 to D5, which would be discussed, in the subsequent paragraphs, then only one and one conclusion, that can be drawn, is that, it was written by her of her own accord. In this letter, she wrote that if accused Vir Singh, wanted to take her, she was ready to accompany him. She also stated, in this letter, that on 30.03.94, she would remain at Bhuna. She further stated, in this letter, that on 31.03.94, she would be ready to accompany the accused, where he Criminal Appeal No. 165-SB of 1996 13 wanted her to accompany him. From the aforesaid discussed evidence, it is proved beyond doubt, that the prosecutrix accompanied the accused of her own accord, by leaving the house of her guardian. Since she accompanied the accused of her own accord, by leaving the house of her guardian, it could not be said that she was kidnapped with an intent to compel or seduce her to illicit intercourse. The ingredients, required for constituting the offence, under Section 366 of the Indian Penal Code, were, thus, not fulfilled, in the instant case. The trial Court, was, thus, wrong in coming to the conclusion, that the accused committed the offence, punishable under Section 366 of the Indian Penal Code. It is held that the accused did not commit an offence, punishable under Sections 366 of the Indian Penal Code. The findings of the trial Court, to the contrary, being incorrect are reversed. 24. The next question, that arises for consideration, is, as to whether, the prosecutrix was a consenting party, or not. It may be stated here, that Vir Singh, one of the accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, in fact, the prosecutrix had love with him, and she wanted to contract marriage with him. He further stated that the parents of the prosecutrix wanted to marry her to some other boy. He further stated that, on account of this reason, he was falsely implicated, in the instant case. This plea of Vir Singh, that the prosecutrix, was having love with him,and, as such, was a consenting party, is proved from the evidence, on the record, as would be discussed hereinafter. The evidence of the prosecutrix, in this Criminal Appeal No. 165-SB of 1996 14 regard, is very material. The story that Vir Singh, was having pistol and he threatened the father of the prosecutrix, has been found to be incorrect. During the course of her cross-examination, it was deposed to by the prosecutrix, that she stated before the Police, as also before the Magistrate that she was given some intoxicants while travelling from Delhi to Nagpur on 01.04.94 (when her attention was drawn to DA and DB, her previous statements, this fact was not found recorded therein). It means that she made an improvement, on this point. Her statement, on this point, therefore, cannot be believed, being an improved version. It was stated by her, that, in the first instance, she found herself in the house of someone at Delhi, which belonged to the relatives of accused Parveen. It was further stated by her, that then they moved by train to Nagpur, as the relatives of Parveen, did not permit their stay at Delhi. It was further stated by her, that then they reached Nagpur, the next morning. It was further stated by her that thereafter, they proceeded to the house of the sister of accused Parveen, at Nagpur, where, they stayed upto 08.04.94. She further stated that throughout this period, she was raped by all the three accused off and on. It was further stated by her, that she was taken to a temple,where accused Vir Singh forcibly put a garland, around her neck. She further stated that her photographs were forcibly taken by the accused, while garlanding. She further stated that during this period she was forced to write some letters, addressed to Vir Singh, accused. She also stated that they brought cosmetics, bag, chappals and three suits besides bangles for Criminal Appeal No. 165-SB of 1996 15 her. It was further stated by her that on 08.04.94, they started back from Nagpur and reached Bhuna and, thereafter, were found sitting in the canteen of the cinema, when the Police apprehended them. The statement of the prosecutrix that garlands were forcibly put around her neck and she was forced to write letters, in the name of the accused namely Vir Singh, is not at all correct. The prosecutrix remained with the accused from 31.03.94 upto 09.04.94. They travelled to various places, in trains and buses. They went together to the temples and other places. The prosecutrix had many occasions to raise hue and cry, that she had been kidnapped, by the accused with an intent to compel her to illicit intercourse or marriage. She could also tell the sister and brother- in-law of Parveen, accused, where they resided for a number of days, that she had been kidnapped by the accused and they had committed rape with her as also wanted to contract marriage with her forcibly. She neither raised hue and cry, at any point of time, from 31.03.94 to 09.04.94, nor reported the matter to the Police. She admitted, in her statement, that she did not disclose the factum of her kidnapping and commission of rape with her, by the accused to the sister of Parveen, accused, or her husband. She also did not tell the neighbourers, that she was kidnapped by the accused with a view to compel her to illicit intercourse and contract marriage with her forcibly. It is evident from photograph exhibit D1, that the prosecutrix, is putting something, in the mouth of Vir Singh, accused, and is in a very happy mood. It is further evident from photograph D2, that Vir Singh, accused, was putting Criminal Appeal No. 165-SB of 1996 16 garlands around the neck of the prosecutrix. At that time, she appears to be in a very happy mood. In D3, Vir Singh, accused, is keeping his hand on the head of the prosecutrix. In this photograph also, she appears to be in a very happy mood. D4, another photograph shows that Vir Singh, accused, and the prosecutrix are sitting side by side, in a very happy mood. D5, photograph, also shows that Vir Singh, accused, is putting something in the mouth of