IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.170-SB of 2002 Date of decision: 21st May, 2010 Meena alias Beena … Appellant Versus State of Haryana … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sumeet Goel, Advocate for the appellant. Mr. Shakti S. Chauhan, Assistant Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been preferred by Meena alias Beena wife of Sham Lal. She was tried in a case FIR No.465 dated 09.06.1999 registered at Police Station City Gurgaon under Sections 363 and 366-A IPC. The Court of Additional Sessions Judge, Gurgaon vide its impugned judgment dated 22nd January, 2002 held the appellant guilty of an offence punishable under Sections 363 and 366-A IPC and on the next day, i.e. 23rd January, 2002 sentenced her to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/- under Section 363 IPC. The appellant was further sentenced under Section 366-A IPC to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1000/- under Section 366-A IPC. In default of payment of fine on both counts, the appellant was ordered to further Criminal Appeal No.170-SB of 2002 undergo rigorous imprisonment for a period of one month and two months respectively. Both the sentences were ordered to run concurrently. It is a case where a 15 years old girl (whose name has been withheld to protect her identity) is said to have accompanied the appellant, who was a 26 years old woman, and had stayed with her for 15 days. The case of the prosecution is that the appellant intended to push the prosecutrix in the trade of prostitution, whereas Mr.Sumeet Goel, Advocate appearing for the appellant, has stated that it was a lesbian relationship between the appellant and the prosecutrix. During the course of arguments, Mr.Goel has urged that this Court should look into certain letters written by the prosecutrix. Since these letters have neither been put to the witness in cross-examination, nor were produced in defence evidence, at the time of listing of the appeal without any application this Court will not entertain the letters, which have been sought to be produced before this Court. To appreciate the rival version, it will be necessary to recapitulate the brief facts of the case. The prosecutrix was a motherless teenager, brought-up by her father-complainant Girdhari Lal PW-1, who had appeared before SI Rattan Singh, In-charge, Police Post, Arjun Nagar, Gurgaon on 9th June, 1999 at about 6.20 p.m. and had submitted a written application dated 3rd June, 1999 Ex.PW1/A. He stated that he was a resident of House No.38/13 in Arjun Nagar. Appellant Meena, along with Yashoda and Manju were tenant in his house two months before the date of application. The complainant had a daughter aged 15 years. Earlier also, attempts were made by accused to take the girl of the complainant away, but she was apprehended. From the last night, the prosecutrix was not at house. The complainant went to the house of all the above mentioned three ladies and learnt from their neighbours that the prosecutrix had 2 Criminal Appeal No.170-SB of 2002 come but she had gone somewhere. A request was made that search of his girl be conducted. On the basis of above said statement, formal FIR Ex.PB was registered. It is stated that on 17th June, 1999, the prosecutrix was found in the company of the appellant and she was recovered by the police, which was accompanied by the complainant Girdhari Lal. Thereafter, statement of the prosecutrix under Section 164 Cr.P.C. was recorded, the matter was investigated and report under Section 173 Cr.P.C. was submitted. The case along with the appellant was committed to the Court of Sessions and was entrusted to Additional Sessions Judge, Gurgaon for trial. The charge stated that on 2nd June, 1999 in the area of Gurgaon, the appellant had kidnapped the prosecutrix from the lawful guardianship and thus, he committed an offence punishable under Section 363 IPC. The second charge stated that the prosecutrix was a minor girl below the age of 18 years, therefore, she was kidnapped with an intention to force her to illicit sexual intercourse, thus the appellant had committed an offence punishable under Section 366-A IPC. Complainant Girdhari Lal appeared as PW-1. He stated that the prosecutrix was aged about 15 years on 2nd June, 1999. When he returned to his house, he found that his daughter was missing. He went to the house of the appellant, who earlier used to be his tenant. There he learnt that his daughter had been abducted by the appellant. He reported the matter to the police on 3rd June, 1999 and proved the same on record as Ex.PW1/A. On 17th June, 1999, his daughter-prosecutrix along with the accused appellant Meena was going on a rickshaw at Post Office Chowk. At that time, the complainant was present along with Rattan Singh, In- charge Police Post and he identified his daughter. She was recovered 3 Criminal Appeal No.170-SB of 2002 from the accused appellant and a recovery memo Ex.PW1/B to this effect was recorded. In cross-examination, this witness stated that he had no proof that the appellant was his tenant. However, he admitted that his daughter used to look after the household affairs, as his wife had expired. Atam Parkash told him that his daughter had been abducted by the appellant. The prosecutrix appeared as PW-2. She gave her date of birth as 9th January, 1984. She stated that the appellant was a tenant in their house along with Yashoda and Manju. The appellant used to instigate her against her father. On 2nd June, 1999 she had gone to purchase the vegetables, where the accused appellant met her and gave her some Parshad. After consuming the same, the prosecutrix lost her senses. When she regained her consciousness, she found herself in Delhi. The prosecutrix wanted to go back to her house, but she was given beatings and was threatened. She further stated that so many gents used to visit accused appellant at Delhi. The appellant had charged Rs.1000/- from one Gulshan and compelled the prosecutrix to sleep with him. She stated that Gulshan was a muslim. When he tried to touch the prosecutrix, she started crying. On 17th June, 1999, the accused appellant came to Gurgaon to take the medicine for her daughter. The prosecutrix also accompanied her and was apprehended by her father at Post Office Chowk. The prosecutrix was medico-legally examined on 17th June, 1999. On 18th June, 1999 her statement was recorded before the Magistrate. She proved the same as Ex.PW2/A. In cross-examination, the prosecutrix stated as under: “I used to go to market along with accused Meena. I had gone once or twice with her. I was never compelled for any such act when she was our tenant. My brother was not present at the house when I went to purchase the vegetable. Vegetable shop is at a distance of 100 yards from my house. 4 Criminal Appeal No.170-SB of 2002 She was not present at vegetable shop but she was following me and met me there only. I placed order for potato and brinjal. Accused gave me parshad of Halwa and Patasha. I fell down on the shop. I was semi conscious when I was being taken to Delhi in a bus. I cannot tell where she took me. Only one room was there where I was taken. The landlord of the house was also present there. His daughter was also of my age. She used to visit the said room oftenly. But the landlord of the house never visited the said room. I never told to the daughter of owner of house that I have been kidnapped. Volunteered that I was compelled not to disclose it to anyone. Her husband never visited during that period in the said room. I had never gone to see any movie from that place. Only once we visited Birla mandir by bus. I never disclosed during this period to any one as accused was with me. The accused had taken Rs.1000/- from Gulshan in my presence. The accused had taken away me to Delhi with bad intention. I do not know the name of the doctor from whom accused used to take medicines. When the accused brought me to Gurgaon and she was apprehended, two police officials were there. At that time I was wearing pink colour suit, whereas Meena was wearing yellow colour suit. I was taken to my house from that place where our rickshaw was standing. It is wrong that I have leveled false allegations against the accused and that I had gone with the accused at my own will and that I was not compelled by anyone to do wrong act. Gulshan wanted to do wrong act with me. But he did not touch me as I raised noise. It is wrong that my father has tutored me for giving such statement. It is wrong that accused did not commit any such act with me and that I have deposed falisely.” Atam Parkash appeared as PW-3. He stated that on 2nd June, 1999, he saw the appellant Meena and the prosecutrix going from their house towards Gurgaon. Daya Chand PW-4 from the office of Civil Surgeon, Gurgaon proved the birth certificate of the prosecutrix, wherein her date of birth 5 Criminal Appeal No.170-SB of 2002 was recorded as 9th January, 1984. ASI Saroj Bala PW-5 on receipt of ruqa Ex.PW1/A had registered the formal FIR Ex.PB. Vijay Singh Judicial Magistrate PW-8 proved the statement of the prosecutrix recorded under Section 164 Cr.P.C. Dr.Mrs. Aisha Bano PW-10 had medico-legally examined the prosecutrix on 17th June, 1999. Since there is no allegation of rape, the medical evidence is not required to be noticed. SI Rattan Singh PW-11 had investigated the case. The other official witnesses, who during the course of investigation, performed various duties, have appeared. They are, MHC Dharampal PW-6; Constable Rajinder Singh PW-7 and Naresh Kumar Draftsman PW-9. No reference is required to be made to their testimony. Thereafter, the prosecution closed its evidence and statement of the accused under Section 313 Cr.P.C. was recorded and all incriminating circumstances were put to her. She stated that she had never abducted the prosecutrix. In fact, the prosecutrix had herself accompanied the accused appellant at her own accord. On 23rd January, 2002, when the quantum of sentence was to be determined, the accused appellant stated as under: “Stated that I am a young married lady of about 26 years. I have two small children i.e. a female baby of about two years and a male baby of about 6 ½ months in my lap. There is none-else in the house to look after them. I am not a previous convict nor have I ever been challaned by the police or fined by any criminal Court. Lenient view may be taken.” Counsel for the appellant has referred to para No. 10 of the impugned judgment, wherein the trial Court had held that the version given by the prosecutrix was not probable. The same reads as under: “10. Narrating the manner in which she was kidnapped, the prosecutrix has testified that she had gone to 6 Criminal Appeal No.170-SB of 2002 purchase vegetables on 2.6.1999. The accused met her and offered parshad. She became unconscious on eating the parshad and found herself in Delhi when she had regained consciousness. The Court finds merit in the contention of learned defence counsel that the manner of kidnapping narrated by the prosecutrix, does not inspire confidence for the reasons that the prosecutrix did not allege that the accused was helped or accompanied by some other person or had some conveyance of her own as to enable her to carry her (prosecutrix) in unconscious condition to Delhi and the accused being a lady was herself neither able to carry her nor would risk to carry her in such condition in a public transport vehicle.” I have heard Mr.Sumeet Goel, counsel for the appellant and Mr.Shakti Singh Chauhan, Assistant Advocate General Haryana, and have also given my thoughtful consideration to the rival submissions advanced by them. According to the prosecution, on the day of occurrence, the prosecutrix was about 15 years of age. There is no challenge to the age of the prosecutrix. The accused appellant, in her statement recorded under Section 313 Cr.P.C., had specifically stated that the prosecutrix had accompanied her according to her own free will. Therefore, two facts, one that the prosecutrix was a minor, and second that she was with the accused appellant, go unchallenged. However, the story put forward by the prosecutrix that she had gone to purchase the vegetables when she was given Parshad by the appellant and she became unconscious, and that when she regained her consciousness she found herself in a room at Delhi, has rightly been held by the trial Court to be improbable. If the prosecutrix can coin this version, which has rightly been held improbable by the trial Court, then this Court cannot lend credence to the other part of the prosecution story that in her presence, the appellant had accepted 7 Criminal Appeal No.170-SB of 2002 Rs.1000/- and had introduced the prosecutrix to one Gulshan, especially when it has been stated that when Gulshan made advances, the prosecutrix started weeping and thereafter, Gulshan had done nothing objectionable. Thus, the allegation that the prosecutrix was abducted to force her to illicit sexual intercourse, seems to be an exaggeration. It is a fact that the prosecutrix remained with the accused appellant, who was a lady, for 15 days. It has also come in evidence that for those 15 days, nobody had committed sexual intercourse with the prosecutrix. The possibility cannot be ruled out that after the recovery and during the period the prosecutrix remained with her father and the relations, she was tutored to add spice to the version. There is a variance in the statement recorded under Section 164 Cr.P.C. and the statement recorded in the Court. Though the defence counsel had not confronted the prosecutrix with her statement recorded under Section 164 Cr.P.C., but in fact, counsel for the appellant has drawn my attention to the statement recorded under Section 164 Cr.P.C. Ex.PW2/A, wherein it is written that the accused had forcibly obtained letters from the prosecutrix. Even though, Mr.Sumeet Goel has pressed hard, this Court cannot rely upon this part of the statement of the prosecutrix recorded under Section 164 Cr.P.C., as that being a previous statement, is not a substantive piece of evidence. However, this part of the statement of the prosecutrix that the appellant intended to force her to sexual intercourse, as a matter of abundant caution, is to be ruled out of consideration. Hence, the appellant is acquitted of the charges under Section 366-A IPC. However, the sentence awarded to the appellant under Section 363 IPC is maintained. Considering the fact that the appellant is a lady, having two minor children and the occurrence in the present case pertains to the year 1999, the sentence awarded to the 8 Criminal Appeal No.170-SB of 2002 appellant under Section 363 IPC is reduced from three years to two years rigorous imprisonment. With the observations made above, present appeal is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE May 21, 2010 rps 9