IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.30 of 2002 With Cr. Appeals No.44 and 222 of 2002. Judgment reserved on 1st April, 2011. Date of Decision: 6th April, 2011. _______________________________________________________ 1. Cr. Appeal No.30 of 2002. Madhu Bala .. Appellant. Versus State of Himachal Pradesh .. Respondent. For the appellant : Mr. R.K. Gautam, Senior Advocate with Mr. Vikrant Chandel, Advocate. For the respondent : Mr. R.K. Sharma, Senior Addl. Advocate General. 2. Cr. Appeal No.44 of 2002. Puran Singh Rautela .. Appellant. Versus State of Himachal Pradesh .. Respondent. For the appellant : Mr. Rakesh Jaswal, Advocate. For the respondent : Mr. R.K. Sharma, Senior Addl. Advocate General. 3. Cr. Appeal No.222 of 2002. State of H.P. .. Appellant. Versus Madhu Bala and Ors. .. Respondent. For the appellant : Mr. R.K. Sharma, Senior Addl. Advocate General. For the respondents : Mr. Chaman Negi, Advocate, for respondent No.1 Mr. T.S. Chauhan, Advocate, for respondent No.2 and also for respondent No.3 as amicus curiae. Mr. Rajiv Jiwan, Advocate, for respondent No.4. Mr. Rakesh Jaswal, Advocate, for respondent No.5. - 2 - Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?Yes. Per SURINDER SINGH, J. All the above titled appeals are arising from the same judgment passed by the learned Additional Sessions Judge, in Sessions Trial No.1-NL/7 of 2001, decided on 7th January, 2002, whereby appellants Madhu Bala in Criminal Appeal No.30 of 2002 and Puran Singh Rautela in Criminal Appeal No.44 of 2002 were convicted for the offence punishable under Section 366 read with Section 34 of the Indian Penal Code and each of them were sentenced to undergo simple imprisonment for a period of five years and to pay a fine of `25,000/- each, with default clause, whereas, the other respondents, namely Rajni Devi, Nirmala Devi and Sarita Goyal were acquitted and against their acquittal, the State has filed Criminal Appeal No.222 of 2002, hence taken up together for decision. 2. In short, the prosecution case as emerges from the evidence on record, can be stated thus. Deceased Roshni Devi, daughter of PW1 Manfulia and PW3 Smt. Kamla Devi, was aged about 19 years. She was earlier working in “Deepak Spinning Mill” at Baddi (Nalagarh), Whether reporters of the Local papers are allowed to see the judgment? - 3 - District Solan and later she left the job. Her employer owned two years dues, thus on 21st April, 1999 she had gone to the said Mill for receiving her balance amount alongwith her younger sister Socha Devi. 2.(ii) On reaching factory, Roshni Devi aforesaid went in the factory premises while her younger sister Socha Devi waited for her for sometime, but when she did not return, Socha Devi came back to her home and informed her mother. PW1 Manfulia, her father, was not in the house. He returned in the evening, he was also apprised about the missing of Roshni Devi from the factory premises. Manfulia searched for her, but did not find her anywhere. Consequently, on 23rd April, 1999, he lodged the report Ext.D1 about her missing. 2.(iii) On 6th June, 1999 Roshni Devi rang-up to her father on the telephone number of PW4 Tulsi Ram, Up-Pradhan and informed that she had reached Nalagarh. Immediately her father went to Nalagarh, but did not find her there. 2.(iv) On 7th June, 1999 at about 8.00 a.m. again Roshni Devi telephoned at the residential house of Ram Partap, as the telephone number of her father was out of order. Ram Partap called him. Roshni Devi told that she was speaking from Barotiwala and - 4 - complained that appellant Madhu Bala alongwith Nirmala Devi and Rajni Devi co-accused took her to Pinjore/Panchkula and was kept in the house of appellant Puran Singh Rautela. They were also forcing her to marry Puran Singh Rautela. She also informed that she was being harassed by the accused persons, thus consumed insecticide. 2. (v) When her father reached Barotiwala, he was told that Roshni Devi was taken to PGI, Chandigarh. 2.(vi) PW5 Shadi Ram, a blacksmith at Barotiwala, noticed that a girl aged about 19 years (Roshni Devi) was vomiting in the front of his shop. One aged person (PW23 Banarsi Dass, her uncle) was also present there. He told him that she was ill and requested him to arrange a vehicle to take her to the medical officer. Shadi Ram aforesaid found PW6 Sohan Lal, who was having the keys of scooter of one Shri Garib Dass. He requested him, immediately brought the scooter. The girl was taken to a private medical practitioner (PW11) at Barotiwala with the help of Shadi Ram. Thereafter Sohan Lal returned and in the second trip took her uncle to the said clinic. The condition of the girl was critical. 2.(vii) PW11 Dr. Bhagwati Prasad Sharma informed police and also called the B.D.C. member to his - 5 - clinic. Police official came from the Police Station. The girl (Roshni Devi) was having a purse in her hand. It was taken into possession vide memo Ext.PW10/A in the presence of PW11 Dr. Bhagwati Prasad Sharma. It contained tickets, coins and a chit. 2.(viii) It is alleged that thereafter Roshni Devi was taken to E.S.I. Hospital, Barotiwala where PW14 Dr. Rakesh Malhotra was stated to be on duty. 2.(ix) PW24 Ashok Verma, SHO, Police Station, Barotiwala reached there and allegedly recorded the statement of Roshni Devi Ext.PW14/A in the presence of the doctor with respect to the fact that appellant Madhu Bala had left her in the company of two boys from where she was taken to the house of Madhu Bala at Panchkula who was serving in Surya Pharmaceutical Ltd. Appellant Puran Singh Rautela was also called by them and Madhu Bala had insisted upon her to marry him. This statement was allegedly made on 7th June, 1999 at 9.30 am, which culminated into FIR Ext.PW15/A. 2.(x) From E.S.I. Hospital Roshni Devi was allegedly referred to PGI, Chandigarh by PW14 Doctor Rakesh Malhotra. 2.(xi) Head Constable Babli Ram and lady constable Mamta accompanied Roshni Devi to PGI, - 6 - Chandigarh where she died on the same day. PW17 ASI Hem Raj prepared the inquest papers Ext.PW17/A and PW17/B. 2.(xii) PW1 Manfulia had also reached PGI, Chandigarh. Postmortem of the dead-body was performed by PW13 Dr. Kulwinder Kaur, Assistant Professor Department of Anatomy. 2.(xiii) Viscera was sent for forensic examination. Final opinion was reserved by the doctor. Report of the forensic examination Ext.PW13/B revealed the contents of aluminium phosphide, an insecticide, which was finally opined to be the cause of death by the said doctor. Postmortem report is Ext.PW13/A. 3. The accused persons were arrested by the police and the memos regarding pointing out the places/houses where the deceased was kept by them were prepared. During investigation, it also surfaced that one Santosh Singh (absconding accused) was also involved in the alleged commission of crime. He was not traceable, as such was declared as Proclaimed Offender by the Magistrate. After completing investigation, police prepared Challan against all the accused persons for the offences punishable under Sections 366, 306, - 7 - 120B, 109 read with Section 34 of the Indian Penal Code and presented it in the Court for their trial. 4. At the end of trial, learned Additional Sessions Judge convicted and sentenced appellants Madhu Bala and Puran Singh Rautela as aforesaid for the offence punishable under Section 366 read with Section 34 of the Indian Penal Code, whereas others were acquitted, hence the appeals by the convicts as well as by the State against the acquittal of other accused persons. 5. Shri R.K. Gautam, learned Senior Advocate for appellant Madhu Bala duly instructed by Shri Vikrant Chandel and Shri Rakesh Jaswal for appellant Puran Singh Rautela vehemently argued that the statements of the prosecution witnesses, in the instant case are contradictory and not inspiring confidence. They also argued that the alleged statement of dying declaration of the deceased is a fabricated document. To support their point, they led us through the evidence on record and further argued that it is a case of no evidence against the convict-appellants, whereas Shri Tara Singh Chauhan, learned Counsel for Rajni Devi and also amicus curiae for Nirmla Devi; and Shri Rajiv Jiwan - 8 - learned Counsel for Sarita Goyal supported the impugned judgment of acquittal. 6. Contra, Shri R.K. Sharma, learned Senior Additional Advocate General led us through the evidence and vehemently argued that the conviction and sentence of the appellants is sustainable on the basis of evidence on record and further argued that the learned trial Court had wrongly acquitted the respondents for the offences charged. 7. We have given our thoughtful consideration to the rival contentions of the parties and carefully scanned the evidence on record. 8. As already stated above, deceased Roshni Devi accompanied by her younger sister Socha Devi had gone to Barotiwala to collect her dues from her employer from where she went missing. Socha Devi waited for her for sometime. When she did not return, Socha Devi went back to her house and informed her mother PW3 Smt. Kamla Devi. 9. The statement of PW3 Smt. Kamla Devi needs to be noticed. She stated that Socha Devi informed her that appellant Madhu Bala and respondents Rajni Devi, Nimrla Devi and Sarita had taken Roshni Devi to Pinjore. In the evening, when her husband - 9 - returned, she disclosed this fact to him. They went there to trace her, but did not find any clue, thus lodged the report. Although, she also stated having kept Roshni Devi at various places at Ludhiana, Pinjore and Panckula, but she did not disclose from where she got this information. There is only one report, which is Ext.D1 on record, which is dated 23rd April, 1999 and the informant of this report is PW3 Smt. Kamla Devi. 10. The perusal of this report (Ext.D1) conspicuously did not reveal the details allegedly given by Socha Devi to her. In its later part, there is a reference that Rajni Devi had gone somewhere of her own accord. This report does not record the presence of even her husband Manfulia. Rather it reveals that she was accompanied by PW4 Tulsi Ram, Up-Pradhan, who also appended his signatures on the said report to which he admitted when appeared as a witness. 11. Thus the testimony of PW3 aforesaid is totally shaken by the above document. It is important to note that Socha Devi was also not examined by the prosecution to support the version of PW3 Smt. Kamla Devi for the reasons best known to it. 12. Further, the allegations which PW3 Smt. Kamla Devi have made in her statement before the Court are - 10 - merely on hearsay. The source of the said information is not known. Therefore, her testimony looses importance. 13. PW4 Tulsi Ram also stated that the deceased was taken by the accused persons to various places. How he came to know about it, he did not say anything about it. On 6th June, 1999 Roshni Devi is stated to have given a telephonic message around 9.00 pm on his telephone that she was taken to Panchkula by appellant Madhu Bala to her residential house from where she was further taken by Sarita Devi respondent to her house where she was kept till 25th April, 1999. Thereafter they kept her in the house of Santosh Singh and Puran Singh Rautela at Panchkula. Appellant Madhu Bala and other women accused compelled her to marry Puran Singh Rautela and also informed him that she was being harassed and taken to Ludhiana by them. She further stated to have sold her ornaments and had come to Nalagarh. He also stated that the relevant time when he received the message she told that she was at Ludhiana. After about then minutes again deceased contacted him and told him that she was at Nalagarh. Both these statements by her are just opposite. How she could be at Nalagarh after ten - 11 - minutes when she was at Ludhiana. He stated that she should return to her residential house, but she refused and again told her that she was forced to marry co-accused Puran Singh Rautela. He further stated that he informed Roshni Devi that her parents are worried about her and she should come to her residential house, but she told that she could not come and if her parents intend to meet her, they could meet in the hospital at Nalagrh at about 5/6 a.m., immediately he informed her father Manfulia. This shows that she was reluctant to return to her parental house and was frequently loitering at various places and has an access to PCO to establish contact. On 7th June, 1999, deceased also contacted her father who told him to come back, but she informed that she consumed poison and then he alongwith Manfulia went to Barotiwala and thereafter to PGI, Chandigarh and on reaching PGI, they were informed that she was dead. 14. In cross-examination he stated that before lodging report Ext.D1 by Kamla Devi it was told by her that deceased had informed her (Kamla Devi) that the women accused had taken her to the residential house of Madhu Bala. It was thereafter the report was lodged in the Police Station. He also - 12 - stated that the women accused were called by the police and they informed that the deceased was taken by one Binder and that the names of the women accused were written in the report, but the report Ext.D1 did not find mentioned any name of the women accused. He also stated that on 22nd April, 1999, the women accused were called in the Police Station continuously for one month in his presence, but the whereabouts of Roshni Devi were not known, whereas report Ext.D1 was lodged only on 23rd April, 1999. He also stated that Pohu Ram (not examined) had informed him that Roshni Devi was at Panchkula and Pohu Ram aforesaid took police to Panchkula. He also stated that the deceased told him on telephone that Binder was innocent and no action be taken against him. He admitted that the father of the deceased gave in writing to the police that he had suspicion on Binder, but there is no such document on record. 15. Against the aforesaid background, the statement of PW4 Tulsi Ram is also not worth inspiring confidence to connect the accused persons with the alleged crime for the reasons that from the day one the women accused, after lodging the report on 23rd April, 1999 regarding the missing of the - 13 - deceased were being called in the Police Station continuously for more than a month in his presence. If this is the position, then the association of the deceased with the women accused as alleged is also completely ruled out. 16. PW23 Banarsi Dass is another important witness. He is the uncle of deceased. His statement is important and also requires consideration. According to him, the deceased continuously for two months was not known, but on 7th June, 1999 he had gone to Barotiwala to get his watch repaired, he saw the deceased present in the STD booth adjacent to the watch-repair shop and asked her as to where she had been during this period. He also informed that he alongwith her parents were searching for her. She replied that she was at Barotiwala and told that her parents would come to her. Except this she did not disclose anything. She took water, thereafter she was trembling and was taken to a private clinic by Sohan Lal (PW6) and Shadi Ram (PW5). He also visited Bhagwati Clinic and the persons present on the spot told him to call her father. He also stated that father of the deceased had already reached Police Station, Baddi. He went there. Thereafter the deceased was - 14 - taken to E.S.I. Hospital, Barotiwala and from Barotiwala deceased was taken to PGI, Chandigarh. Pertinently, the deceased did not disclose anything to her uncle with respect to the consumption of the poison and the reasons therefor and also that the accused persons had taken her to various places against her wishes and forced her to marry appellant Puran Singh Rautela. Even this fact was also not disclosed to PW5 Shadi Ram, PW6 Sohan Lal and also to PW11 Dr. Bhagwati Prasad Sharma. In cross- examination he stated that the father of the deceased had informed him that he had suspicion on Binder, who was also working in the same factory and had kept the deceased with him and his near relatives were in police department. He was also called in Police Station. He was confronted with his statement (mark PW23/A) recorded under Section 161 of the Code of Criminal Procedure, where there is no mention that he alongwith the deceased went to the E.S.I. Hospital. Pertinently, he did not make any reference with respect to the recording of her statement Ext.PW14/A in E.S.I. Hospital. 17. The prosecution has banked upon the alleged statement Ext.PW14/A of the deceased referred to above allegedly written by the SHO in the presence - 15 - of PW 14 Dr. Rakesh Malhotra. PW 11 Dr. Bhagwati Prasad Sharma was accompanying the deceased from his private clinic. According to him, the deceased was in conscious condition and was able to speak when she was brought to his clinic, but was confused. When asked as to who had brought her to the clinic, she stated to have come alone. Whereas, Shadi Ram aforesaid informed that she was lying in front of his shop and he did not know more than this. When he asked from the deceased, she told that she had consumed poison. PW 11 aforesaid had also called the B.D.C. member and informed police. This information was recorded by the SHO in the daily-diary Ext.PW19/A whereby it was informed that the deceased was accompanied by someone who had left her in front of the shop in unconscious condition and it appeared that she had taken some poison. Whereas, the said doctor gave another version during the trial that the deceased was in conscious condition and was able to speak, though confused. Further, in cross-examination he stated that the Investigating Officer had come to his clinic and at that time deceased Roshni Devi was in a position to speak. He also stated that he took deceased Roshni Devi to E.S.I. Hospital alongwith - 16 - police officials and one Gopal Chand Negi (PW 10) also accompanied them, but no medical treatment was given to her there. The Medical Officer present in E.S.I. Hospital directed the Investigating Officer to take her to PGI, Chandigarh and the deceased was taken to PGI in his presence. It is worth noting that he nowhere stated that in E.SI. Hospital she had made any statement of the nature of Ext.PW14/A. Also PW 10 Gopal Chand Negi did not whisper even a single word about having made such a statement in the presence of the doctor. Though this witness was declared hostile, but in cross-examination stated that the deceased when brought to the hospital was in a position to give her statement, but no statement of the deceased was recorded in E.S.I. Hospital. He further stated that the deceased was referred to PGI in his presence, whereas PW 5 Shadi Ram and PW 6 Sohan Lal stated that the condition of the deceased was critical and was not in a position to speak anything. She was unconscious. Thereafter the statement Ext.PW14/A appears to be a got up document. 18. Further, PW 13 Dr. Kulwinder Kaur stated in the tail-end of her cross-examination that her record revealed that the deceased was referred by private - 17 - medical practitioner and there is no reference of E.S.I. Hospital. We have also perused the record, i.e., the postmortem report (Ext.PW13/A). On its first page there is a reference that the deceased was rushed from private clinic to PGI, Chandigarh without any reference to E.S.I. Hospital, Barotiwala. Whereas, PW24 Ashok Verma (SHO) stated that the deceased was given treatment in E.S.I. Hospital, but according to PW 14 Dr. Rakesh Malhotra, no treatment was given to her and even no entry was made in the OPD register. There is also no treatment record. 19. On the critical examination of the aforesaid evidence, we did not find out from the record that the accused including the appellants had forcefully seduced or taken away the deceased forcing her to marry her with appellant Puran Singh Rautela. We also did not find any probity in the prosecution case that the women accused were in any way connected by way of legal evidence in the offences charged. In our considered opinion the offences charged against the accused persons are not proved. 20. We are also surprised to note the way charges were framed by the learned trial Court for the offences aforesaid. The provisions of Section 218 of - 18 - the Code of Criminal Procedure were given a complete go-bye by the learned trial Court. The offences punishable under Sections 366, 376, 306 and 120B of the Indian Penal Code are distinct offences. The distinct offences are to be separately charge-sheeted and tried even if it arises out of the same transaction, subject to the provisions of Sections 219 or 220 of the Code of Criminal procedure. Further when it is intended that the accused is to be charged alternatively, separate alternative charges are required to be framed. Though, no prejudice has been claimed by the accused persons in the instant case, but it was incumbent upon the learned trial Court to frame the charges against each count separately and distinctly, but not like putting an accusation in a summons case. 21. For the aforesaid reasons, in our considered opinion, since the prosecution has failed to prove the offences charged against the accused persons beyond reasonable doubt and the learned trial Court has erred in holding appellants Madhu Bala and Puran Singh Rautela guilty for the offence punishable under Section 366 read with Section 34 of the Indian Penal Code, Criminal Appeal No.30 of - 19 - 2002 filed by appellant Madhu Bala and Criminal Appeal No.44 of 2002 filed by Puran Singh Rautela, both are allowed. Their conviction and sentence passed by the learned trial Court is hereby set aside. Since their sentences stand already suspended, they are discharged of their bail bonds furnished by them during the pendency of their appeals. The State’s appeal against the acquittal, lacks merit and is accordingly dismissed. 22. All the appeals are disposed of. (R.B. Misra), Judge. April 6th, 2011 (Surinder Singh), (rc) Judge.