Crl.Appeal No. 292-SB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA HIGH COURT AT CHANDIGARH. Crl.Appeal No.292-SB of 2002 Date of Decision: 6.10.2010 Desh Raj … Appellant Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.Jasbir Rattan, Advocate, with Mr.S.S.Chaudhary, Advocate, for the appellant. Nr.Paramjit Batta, Addl.AG, with Mr.Gaurav Arora, AAG, Haryana. … JORA SINGH, J. Desh Raj preferred this appeal to challenge the judgment of conviction dated 23.1.2002 and order of sentence dated 25.1.2002 rendered by Additional Sessions Judge, Sonepat, in Sessions Case No.36 of 1998, arising out of FIR 245 dated 29.8.1997 under Sections 363/366/506 IPC, Police Station, Kharkhoda. By the said judgment, he was convicted under Section 366 IPC and sentenced to undergo RI for five years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for six months. Prosecution story, in brief, is that on 29.6.1997, Bhim Singh r/o Village Halalpur gave an application to the SHO, PS Kharkhoda, to the effect that he was the resident of Village Halalpur and was doing agriculture. He has three daughters, including Santosh (for short `the prosecutrix), who was 21/22 years’ old and was Matriculate. His brother- Crl.Appeal No. 292-SB of 2002 2 in-law Sube Singh was serving in Public Health Department and was residing in New Wazir Singh Colony, Karnal. Prosecutrix had gone to the house of Sube Singh to learn stitching. Desh Raj, JE, was also residing in the house of his brother-in-law as tenant. He along with Mahavir had gone to the house of Sube Singh number of times and had seen Desh Raj residing in his house as a tenant. Prosecutrix came back to Village Halalpur on 16.4.1997. On 8.5.1997, he along with his wife and two children had gone to his fields. Prosecutrix was alone at his house. At about 5.00/6.00 PM when they came back from the fields, then prosecutrix was found missing from the house. He made an effort to search for his daughter. On the next day, Mahavir told him that when he was going to his office, then he had seen Desh Raj, JE, standing near State Bank of India on a motorcycle. Mahavir had also enquired from Desh Raj as to why he was standing there. Then Desh Raj replied that he had some work in the bank. Raj Singh had also seen the prosecutrix while going out of village, wearing a new suit. He thought that the prosecutrix was kidnapped by Desh Raj. His (complainant) wife could not bear this and had committed suicide by jumping before the train. In view of the application moved by Bhim Singh, formal FIR was registered. After 15/20 days, prosecutrix came back to her house. Accused was arrested. After completion of investigation, challan was presented in Court. Accused was charged under Section 366 IPC, to which he pleaded not guilty and claimed trial. Prosecution examined 13 witnesses. PW1 Constable Surinder Singh delivered special report to the Ilaqa Magistrate at 11.30 PM on 29.6.1997. Crl.Appeal No. 292-SB of 2002 3 PW2 SI Lachhman Singh on receipt of ruqa (Ex.P1) has recorded formal FIR (Ex.P2). PW3 Dr.Mukesh Chand on 22.7.1997 has medico legally examined Desh Raj and stated that he was fit to perform sexual intercourse. PW4 Dr. Varsha on 16.7.1997 has medico legally examined the prosecutrix, aged about 22 years, and observed as under:- “General condition fair, vital were maintained. Age of menarche was at 16 years, and the date of last menstrual period 26.6.1997 as told by Santosh. Secondary sexual characters were fully developed and there was no external mark of injury on the body. On examination of private part: No mark of injury was seen on thighs and vulva. There was no bleeding. Pubic hair were partially shaved. On pre-speculum examination: No mark of injury was seen and there was no bleeding. On P.V. Examination: Two fingers were entered easily. The service is downward in position. Uterus is antriverted and was of normal size. Possibility of sexual intercourse cannot be ruled out in this case.” Raj Singh stated that at about 8.00/8.30 AM, he had seen the prosecutrix while going on the motorcycle of Desh Raj. PW6 Constable Dharam Pal has deposited sealed parcel in the office of FSL, Madhuban. PW7 Ishwar Singh stated that on 16.7.1997, he along with his Crl.Appeal No. 292-SB of 2002 4 wife had tried to search his niece Santosh daughter of Bhim Singh. They were with the police party and were present near Bus Stand, Sonepat, then prosecutrix was sighted while coming from the side of Bus Stand. PW8 Mahavir Singh stated that on 8.5.1997, he was going from village Halalpur to Sonepat to attend his office. Near the corner of street of his house, he had seen the accused. On enquiry, accused replied that he has some work in State Bank of India. PW9 ASI Anup Singh stated that on 29.6.1997, Bhim Singh had met him near Bus Stand, Sedpur. Application (Ex.P1) was submitted before him. After making endorsement, application was sent to the police station, on the basis of which, formal FIR (Ex.P2) was recorded. After that, he had gone to the place of occurrence and recorded the statement of Mahavir. On 16.7.1997, prosecutrix was produced before the doctor for medical examination. On 22.7.1997, Desh Raj was produced before the doctor for medical examination. PW10 Bhim Singh is the complainant. PW11 Sube Singh stated that Bhim Singh was his brother-in- law. Prosecutrix d/o of Bhim Singh was residing with him to learn stitching. Desh Raj was his tenant. He was serving in Housing Board Department as JE. Prosecutrix was left at her house in Village Halalpur during harvesting season. Desh Raj had vacated his house and eloped with the prosecutrix. When his sister came to know about the elopement of prosecutrix, then she committed suicide by jumping before a train. PW12 R.K.Yadav, JMIC, stated that on 16.7.1997, he had recorded statement of the prosecutrix under Section 164 Cr.P.C. Ex.PB is the copy of statement. Statement (Ex.PB) was signed by the prosecutrix Crl.Appeal No. 292-SB of 2002 5 after admitting the same to be correct one. PW13 Sunil Chhabra, Ahlmad, brought the summoned file of FIR No.809 dated 9.11.1997 under Section 306 IPC. Ex.PC is the copy of report under Section 173 Cr.P.C. After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was as under:- “I am innocent. I have been involved in this case falsely Smt. Santosh was my legally wedded wife but I being from caste of Harijan Chamar and she being from the Jat caste, the relatives of my in-laws could not tolerate this marriage and they started torturing me. They conducted panchayat. Subsequently, this false case was registered against me. I filed a Writ Petition in the Hon'ble High Court when the summons were served upon the respondents. They engaged a counsel who took undertaking to produce her before the Hon'ble High Court but prior to it, she was remarried with one Raj Karan s/o Shri Chattar Singh of Dera Mundo Garhi (Karnal) and then she was given poison by the respondents as a result of which she died under the apprehension that she may not be produced before the Hon'ble High Court. They were also under the apprehension that if Santosh would give statement in favour of me and against the respondents. Then they would face a great problem. Smt. Santosh Devi filed an application for Peshbandi in the court of Executive Magistrate, Panipat in which she has submitted that Crl.Appeal No. 292-SB of 2002 6 she herself responsible for her own act and conduct by conducting marriage with me and reside with me as my legally wedded wife. At the time of our marriage, the photography of exchanges garland were taken in the temple in the presence of priest. The marriage of Santosh with me has been registered with the Registrar of Marriages, Thaneshar on 30.05.1997. When this false case was registered against me, then Santosh Devi has also admitted in her statement as my legally wedded wife, which was recorded by Shri R.K. Yadav, JMIC, Sonipat. The complainant party with collusion of Raj Karan also got a false case registered against me in PS Gharaunda, under S. 306 IPC which has also been decided and I have been acquitted by learned Addl. Sessions Judge, Karnal.” In defence, DW1 Ashok Kumar stated that envelope bearing No.2414 dated 26.8.1997 was printed by them. DW2 Dharam Singh brought the summoned record. DW3 Joginder Pal Singh Rathi, Notary Public, stated that affidavits of prosecutrix and Desh Raj were attested by him. Entries were made in the register. Entries were signed by the deponents. Ex.DA and Ex.DB are the entries of the register. DW4 Ranjit Singh brought summoned file of case No.454 dated 8.5.1997. DW5 Balbir Singh had taken photographs (Ex.D1 to Ex.D18), negatives are Ex.D19 to Ex.D36. DW6 Mam Raj, Clerk, Office of Sub Registrar, stated that under the Hindu Marriage Act, application was moved by the prosecutrix. Crl.Appeal No. 292-SB of 2002 7 Ex.D37 to Ex.D40 are certified copies of various documents. Name of husband of prosecutrix is Desh Raj. DW7 Sushil Kumar, Additional Ahlmad, brought the summoned record and stated that statement of the prosecutrix was recorded by ACJM. Ex.D41 is the statement of the prosecutrix. Ex.D42 and Ex.D43 are the orders of ACJM. Documents (Ex.D44 to Ex.D46) were tendered into evidence. After hearing learned PP for the State, learned defence counsel for the accused and from the perusal of evidence on the file, accused was convicted and sentenced as stated aforesaid. I have heard the learned defence counsel for the appellant, learned State counsel and have gone through the evidence on the file. Learned defence counsel for the appellant argued that prosecutrix was the legally wedded wife of the appellant. So, no question of abduction. Ex.D1 to Ex.D18 are the photographs of the prosecutrix and the appellant. Ex.D19 to Ex.38 are the negatives. Ex.D37 and Ex.D38 are the applications by the prosecutrix and appellant for registration of the marriage. Applications are dated 30.5.1997. According to the applications, date of marriage is 8.5.1997. Ex.D39 is the certificate by the Registering Authority. Applications for registration of marriage were presented before the Registrar of Marriage. Ex.D40 is the marriage certificate. Marriage of the prosecutrix with the appellant was registered on 30.5.1997. Prosecutrix also appeared before the ACJM on 10.5.1997. Ex.D41 is the statement of the prosecutrix. According to the statement, prosecutrix is the legally wedded wife of the appellant. Prosecutrix disclosed that she was 21-1/2 years' old and she wanted to reside with her husband. In view of the Crl.Appeal No. 292-SB of 2002 8 statement (Ex.D41), order (Ex.D42) dated 10.5.1997 was passed by ACJM, Kurukshetra. Prosecutrix being major was set at liberty to go anywhere she likes. Appellant also filed petition in the Hon'ble High Court and this fact is clear from the order (Ex.D44) dated 10.10.1997. Police authorities were directed to produce the prosecutrix on 17.10.1997. Ex.D45 is again order of Hon'ble High Court dated 13.11.1997, but prosecutrix was not produced in Court. Allegation of the appellant was that regarding death of the prosecutrix, investigation be entrusted to CBI or any other agency, but petition was disposed of with a direction to the appellant that he may move appropriate complaint before the appropriate authorities with regard to the alleged death of the prosecutrix vide order (Ex.D46) dated 26.11.1997. Bhim Singh appeared as PW10 and stated that on 8.5.1997, he along with his family members had gone to his fields. Prosecutrix was alone in the house and when they came back in the evening, then prosecutrix was found missing from the house. PW8 Mahavir stated that on 8.5.1997, while he was going to his office, then sighted the appellant while standing near the corner of street of his house and on enquiry, he stated that he has some work in State Bank of India. PW5 Raj Singh stated that at about 8.00/8.30 AM on 8.5.1997, he had seen the prosecutrix on the motorcycle of the appellant. Then intimation was given to Bhim Singh. No report was lodged with the police. That means on 8.5.1997, complainant had the knowledge that prosecutrix was seen with the appellant but statement of the complainant is dated 29.6.1997. No explanation why delay in lodging the FIR. In the month of May, 1997, prosecutrix had contracted marriage with the appellant. Ex.D40 is the marriage certificate by the Registering Authority. On 10.5.1997, prosecutrix had appeared before Crl.Appeal No. 292-SB of 2002 9 ACJM, Kurukshetra, and made statement that she has contracted marriage with the appellant. When prosecutrix was the legally wedded wife of the appellant, then no question of abduction. Statement of prosecutrix under Section 164 Cr.P.C. was recorded by JMIC. Statement is Ex.PB dated 16.7.1997 but statement is without any evidentiary value because prosecutrix had married with the appellant on 8.5.1997 and in Court before ACJM stated that she was the legally wedded wife of the appellant. Prosecutrix has not appeared as a witness. After death, statement under Section 164 Cr.P.C. carries evidentiary value but statement is without any evidentiary value when there is a marriage certificate (Ex.D40) and statement (Ex.D41) dated 10.5.1997 before ACJM, Kurukshetra. Learned State counsel argued that prosecutrix voluntarily made statement before the JMIC on 16.7.1997 and statement is to the effect that she was abducted by the appellant. Statement of Dr. Varsha is to the effect that possibility of rape cannot be ruled out. Evidence on the file was rightly scrutinized by the trial Court. Admittedly, prosecutrix was the daughter of Bhim Singh, complainant. Prosecutrix was residing with her maternal uncle Sube Singh (PW11). While staying with Sube Singh, prosecutrix wanted to learn stitching. Desh Raj, appellant, was the tenant of Sube Singh. He was serving as JE in Housing Board Department. Prosecutrix was sent to her parental village during harvesting season. On 8.5.1997, Bhim Singh along with his other family members had gone to his fields. Prosecutrix stayed in the house. She was alone. In the evening when complainant and other family members came back, then Crl.Appeal No. 292-SB of 2002 10 prosecutrix was found missing from the house. According to the prosecution, prosecutrix was abducted by the appellant, whereas allegation of the appellant was that prosecutrix was his legally wedded wife. Now question is whether prosecutrix was the legally wedded wife of the appellant or not. If prosecutrix was the legally wedded wife of the appellant, then no question of punishment under Section 366 IPC. PW12 R.K.Yadav, JMIC, had recorded statement of the prosecutrix under Section 164 Cr.P.C. Statement is dated 16.7.1997, but in the statement, prosecutrix has not stated a word that she was raped. Only allegation of the prosecutrix was that she was abducted by the appellant. Prosecutrix was not examined by the prosecution as a witness on account of her death. So, after death of the prosecutrix, statement under Section 164 Cr.P.C. carries evidentiary value. Bhim Singh while appearing as PW10, then stated that on 8.5.1997, he along with his other family members had gone to his fields. Prosecutrix was alone in the house. In the evening when they came back, then prosecutrix was found missing from the house. Due to this reason, his wife had committed suicide. Bhim Singh has not stated a word that he had seen the prosecutrix in the company of the appellant. Sube Singh is brother- in-law of Bhim Singh and stated that prosecutrix was staying with him at Karnal. She wanted to learn stitching work. Appellant was his tenant. Statement of Sube Singh is also of formal nature because he has not stated a word that prosecutrix was seen in the company of the appellant or he had seen the appellant while abducting the prosecutrix. PW8 Mahavir Singh stated that on 8.5.1997 while going to his office, then he had seen the appellant while standing near the corner of street of his house. On enquiry, Crl.Appeal No. 292-SB of 2002 11 appellant replied that he has some work in the bank but statement of Mahavir Singh is also of formal nature because he had not seen the prosecutrix with the appellant. PW5 Raj Singh is the relevant witness and stated on oath that at about 8.00/8.30 AM, he had seen the prosecutrix on the motorcycle of appellant. In cross-examination also, he has stated that he had seen the prosecutrix on the motorcycle of the appellant. Date and month was not given when Raj Singh had seen the prosecutrix on the motorcycle of the appellant. In cross-examination, Raj Singh admitted that he had informed Bhim Singh that he had seen the prosecutrix on the motorcycle of appellant but no report was lodged with the police. From the statement of Raj Singh, one thing is clear that he had seen the prosecutrix on the motorcycle of the appellant at 8.00/8.30 AM. Secondly, this fact was brought to the notice of Bhim Singh on the same day, but statement of Bhim Singh is dated 29.6.1997. In case, on 8.5.1997 Bhim Singh came to know from Raj Singh that prosecutrix was abducted by the appellant, then after one day or two days or five days, Bhim Singh should have reported the matter to the police. There was no idea to wait upto 29.6.1997. In the statement under Section 164 Cr.P.C., prosecutrix did not state a word that she was raped by the appellant. Dr. Varsha had medico legally examined the prosecutrix on 16.7.1997. No injury was noticed on the person of the prosecutrix. Doctor stated that possibility of rape cannot be ruled out but no allegation of the prosecutrix that she was raped by the appellant. Only dispute is whether appellant had abducted the prosecutrix or not. In defence, appellant has produced photographs (Ex.D1 to Crl.Appeal No. 292-SB of 2002 12 Ex.D18) and negatives from Ex.D19 to Ex.D36. Photographs show that appellant had married with the prosecutrix. Ex.D37 and Ex.D38 are the applications from the side of the prosecutrix and appellant regarding registration of marriage. Applications are dated 30.5.1997. Both the applications were presented before the Registering Authority and this fact is clear from Ex.D39. Ultimately, marriage certificate (Ex.D40) dated 30.5.1997 was issued. Prosecutrix was also produced before the ACJM. Statement of the prosecutrix dated 10.5.1997 was recorded. Prosecutrix stated that she was 21-1/2 years' old and has contracted marriage with the appellant. After marriage, she wanted to reside with the appellant. Ex.D42 is the order of ACJM dated 10.5.1997 to the effect that prosecutrix, aged about 21 years, is major and she is at liberty to go anywhere she likes. Ex.D41 and Ex.D42 also show that prosecutrix had contracted marriage with the appellant on 8.5.1997. Now when there are two statements of the prosecutrix, i.e., Ex.D41 dated 10.5.1997 and Ex.PB dated 16.7.1997, then question is which statement is correct one. Marriage certificate (Ex.D40) is on the file. Before recording statement under Section 164 Cr.P.C., prosecutrix had contracted marriage with the appellant. Marriage certificate was also issued. Appellant had also approached Hon'ble High Court by filing petition to the effect that prosecutrix be produced in Court. Direction was given to the police to produce the prosecutrix in Court. This fact is clear from the orders of Hon'ble High Court dated 10.10.1997 (Ex.D44) and dated 13.11.1997 (Ex.D45). After the death of prosecutrix, appellant had filed criminal writ petition. Request was that enquiry be entrusted to the CBI or any other agency to enquire into the death of the prosecutrix, but Crl.Appeal No. 292-SB of 2002 13 writ petition was disposed of with a direction to the appellant that he may move appropriate complaint before the appropriate authorities with regard to the alleged death of the prosecutrix. Regarding abduction of the prosecutrix or abetment to commit suicide, FIR No.809 dated 9.11.1997 under Section 306 IPC was registered against the appellant, but in that FIR, appellant was acquitted of the charge levelled against him. This fact is clear from the copy of judgment dated 1.5.2001 produced by filing Crl.Misc.51319 of 2010. Statement of the prosecutrix dated 10.5.1997 (Ex.D41) was recorded. Prosecutrix was sent to Nari Niketan. Acquittal of the appellant in FIR No.809 dated 9.11.1997 under Section 306 IPC vide judgment dated 1.5.2001 further shows that prosecutrix was not abducted. In case prosecutrix was abducted as per statement of Raj Singh and information was given on the same day to Bhim Singh, then Bhim Singh should have reported the matter to the police on the same day, or after one day or two days. Filing of application dated 29.6.1997 by Bhim Singh shows that story is not natural one. Evidence on the file shows that prosecutrix was major and had contracted marriage with the appellant. No cogent and convincing evidence on the file that prosecutrix was abducted by the appellant. In the light of above discussion, I am of the opinion that evidence on the file was not properly scrutinized by the trial Court. Impugned judgment suffers from infirmity and illegality and the same is ordered to be set aside. Appellant is acquitted of the charge levelled against him. Appeal is accepted. 6.10.2010 ( JORA SINGH ) pk JUDGE