Crl. Revision No. 309 of 2005 - 1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 309 of 2005 (O&M) Date of Decision: March 04, 2011 Pannu Khan and another ---Petitioners versus State of Haryana ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.A.S.Sullar, Advocate, for the petitioners Mr.Shekhar Mudgal, Asstt. Advocate General, Haryana *** GURDEV SINGH, J. The petitioners-accused, Pannu Khan and Mohd. Arif, have preferred this revision petition against the judgment dated 20.1.2005 passed by Additional Sessions Judge, Sirsa, vide which he dismissed the appeal preferred by them against the judgment and order dated 4.12.2000 passed by Judicial Magistrate Ist Class, Dabwali, convicting the accused for the offence under Section 354/34 IPC and sentencing them to undergo rigorous imprisonment for a period of two years and to pay a fine of ` 1000/- each and in default thereof to further undergo simple imprisonment for a period of three months. It was on the statement of Pushpa Devi, complainant, PW-1, made before Mahinder Singh SI, PW-4, that FIR Ex. P.C, was recorded under Crl. Revision No. 309 of 2005 - 2- Section 354/34 IPC. She stated therein that she was issueless and to get the child she was asked to take seven rounds of the place of Baba Pir, situated in Rajpura. She had already taken six rounds of that place and was asked by the accused that the next round shall be taken on next Thursday. Accordingly, on 11.6.1995, she accompanied by her husband, Nanak Chand, PW-2, and his sister Paro Devi, went to that place at about 10-00 a.m. He was told by the accused that tabeet for her, shall be prepared at 10.00 p.m. and she will have to stay up to that time. Accordingly, all of them stayed in the dera of the accused up to 10-00 p.m. Both the accused asked her husband and his sister to immerse some rice in the water channel. After they left, both the accused took her inside the room on the pretext that they would be preparing tabeet for her. Pannu Khan caught hold of her right hand whereas Mohd. Arif started pulling/breaking the string of her petticoat. When she asked the accused as to what they are doing, it was remarked by Mohd. Arif that they are to change her womb itself. In spite of the protest she was not released by them. Pannu Khan caught hold of her by her breast and asked her not to speak and otherwise her tabeet would not be prepared. When the accused tried to commit rape on her, she raised an alarm, which attracted her husband and his sister to the spot. While she was being got released from the accused, some injuries were received by Mohd. Arif. They disclosed all these facts to Milkh Raj, Sarpanch of Rajpura and on account of the non-availability of any transport, they spent the night in his house. On the next day, they were proceedings to the police station to lodge a report, when this ASI met them in the bus stand of Abubshah, where she made the above said statement. The ASI accompanied by the complainant and others, came to the place of occurrence and after inspecting the same prepared the rough site plan, Ex. PD, with correct marginal notes. In the course of investigation, both the accused were arrested and after the Crl. Revision No. 309 of 2005 - 3- completion thereof, challan was put in before the JMIC, who found sufficient grounds for presuming that the accused committed offence punishable under Section 354/34 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove their guilt, prosecution examined Pushpa Devi, PW-1, Nanak Chand, PW-2, Lachman Singh, PW-3 and Mahender Singh SI, PW-4. After evidence was closed by the prosecution, the accused were examined and their statements were recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their false implication in order to defame them. They were called upon to enter on their defence. They examined Hira Lal, DW-1 and Bhagwan Dass, DW-2, in their defence evidence. I have heard learned counsel for both the sides. Counsel for the accused assailed the findings of conviction and sentence recorded by the trial court and upheld by the appellate court. He has submitted that the prosecutrix and her husband made contradictory statements in the Court and the contradictions occurring in their statements are very material and make their statements unworthy of belief. The false FIR was got registered by the complainant at the instance of Milkh Raj, who was inimical towards the accused and that fact stands proved from the defence evidence produced by the accused. The prosecution failed to examine the third witness of the occurrence; namely, Maya Devi and her non-examination is fatal to it. He further submitted that the Investigating Officer failed to prepare the rough site plan of the water channel, which was material in order to determine what was the distance of that water channel from the place of occurrence. For that omission on the part of the Investigating Officer, adverse inference is to be Crl. Revision No. 309 of 2005 - 4- drawn against the prosecution. He prayed for the acquittal of the accused and in the alternative for releasing them on probation or reducing the sentence of imprisonment on the ground that the sentence so awarded to the accused is on the higher side. On the other hand, it has been submitted by State counsel that the contradictions, as pointed out by the counsel for the accused, are not such so as to make the statements of the complainant and her husband unreliable. Merely staying of the prosecutrix and her husband in the house of Milkh Raj cannot be made a ground for coming to the conclusion that at his instance, they got lodged false case against the accused. The Investigating Officer was only to prepare the rough site plan of the place of occurrence and was not required to prepare the rough site plan of the water channel, where her husband and sister-in-law had gone to immerse the rice. The re-appreciation and re-appraisal of the evidence, while exercising the revisional jurisdiction, is permissible only if this Court comes to the conclusion that the findings recorded by the trial court and upheld by the appellate court are perverse or illegal or are based on misreading of evidence. Counsel for the accused pointed out the following contradictions in the statements of the complainant, PW-1 and her husband, Nanak Chand, PW-2:- (1)According to the complainant, this occurrence took place on 6.11.1995, whereas according to her husband, the same had taken place on 11.6.1995 and that is also the prosecution version. (2)According to Nanak Chand, PW-2, he and his sister were present at the spot at the time of occurrence, whereas the complainant deposed to the contrary. (3)According to the complainant, this occurrence took place in the Crl. Revision No. 309 of 2005 - 5- verandah whereas according to her husband, the same took place in the room of the dera. (4)According to the complainant, no one was present in the Dera when the occurrence took place, whereas according to her husband, 25-30 persons were present at that time. (5)According to the complainant, the name of the sister of her husband is Paro Devi whereas her husband has disclosed her name as Maya Devi. It is correct that the complainant described the name of her sister- in-law as Parao Devi and her husband described the name of his sister as Maya Devi but stated that she is known by another name also. Therefore, that cannot be treated as contradiction In fact, some of the contradictions, so pointed out by the counsel, are not there. It is not the statement of the complainant that no person was present in the dera in the morning whereas the statement of her husband was that 25-30 persons were present during the day. It was not his statement that those persons were present at the time, the occurrence took place. It has no -where been stated by Nanak Chand, PW-2 that he was present when the occurrence took place, rather he has stated that when on hearing the alarm of his wife , they came to the spot and found that one of the accused was holding her hands and the other accused was holding her saree and it was disclosed to them by his wife that the accused has tried to break her string and had also caught hold of her breast. It was made clear by the complainant, PW-1, during her cross examination that her husband and his sister had come to the spot while the accused were still holding her. Of course, there is contradiction regarding the date of occurrence, which has been stated by the complainant to be 6.11.1995 and by Nanak Chand, PW-2 as 11.6.1995. The stating of date as Crl. Revision No. 309 of 2005 - 6- 6.11.1995, may be the result of slip of tongue or may have been wrongly recorded by the trial court. It is a fact that the complainant stated that the occurrence took place in the verandah whereas according to Nanak Chand, PW- 2, the same took place in the room. Simply on account of that contradiction, these witnesses cannot be disbelieved. No lady will put her honour at stake by levelling false allegations and that too against the persons, who were running a dera and must be having thousands of followers and the complainant was likely to incur their anger by levelling such like allegations. There is no dispute about the fact that the prosecution had not examined Paro Devi/Maya Devi. It was not supposed to examine each and every witness and was required to examine only that number of witnesses, whose testimony was necessary for unfolding the prosecution case in the Court. Ultimately, the court is to see the quality and not the quantity of the evidence. No adverse inference can be drawn on account of the non- examination of the said witness. Much has been said about the false implication of the accused on account of their enmity with Milkh Ram. In support of that submission, counsel for the accused has referred to the statements of Hira Lal, DW-1 and Bhagwan Dass, DW-2. There may be enmity between Milkh Raj and the accused but how the complainant was concerned with the same. It is a fact that after the occurrence she along with her relations had stayed in the house of that Milkh Rah. Nothing else was brought to the notice of the court to show the interestedness of the complainant in that Milkh Raj. In the absence of any such fact, it cannot be held that the prosecutrix got lodged false case against the accused on the asking of Milkh Raj. After having carefully examined the records of the case, it has been found that the findings recorded by the trial court and upheld by the appellate court do not suffer from any perversity or Crl. Revision No. 309 of 2005 - 7- illegality. Those cannot be interfered with while exercising the revisional jurisdiction. For such like offence, outraging the modesty of a woman, the accused are not entitled to the benefit of probation. It was an offence which was committed by the accused after due planning as they made the complainant and her relations to wait in the dera up to 10-00 p.m. In order to get an opportunity to commit that offence, they had sent away the husband and sister-in-law of the complainant. The women, who visit such like deras with the hope to get child, cannot be made to suffer at the hands of such like persons. So far as the quantum of sentence of imprisonment is concerned, it appears to be somewhat on the higher side. Keeping in view the fact that the accused are standing their trial since long, the sentence of imprisonment of two years, so awarded to them, is reduced to one year. Revision petition is disposed of with that modification. The accused be taken into custody for undergoing the sentence so imposed upon them. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE March 04, 2011 PARAMJIT