CRR No. 1973 of 2010 and other connected cases 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- Date of decision: 17.05.2011 CRR No. 1973 of 2010 State of Haryana ........ Petitioner Versus Samat Singh .......Respondent(s) CRR No. 2374 of 2010 Asha ........ Petitioner Versus State of Haryana and another .......Respondent(s) CRR No. 3022 of 2010 Asha ........ Petitioner Versus State of Haryana and another .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. P K Chugh, Advocate for the petitioner Mr. Amit Rana, DAG, Haryana Mr. Vivek Khatri, Advocate for respondent No. 2 -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. All the aforementioned petitions are being disposed by this common order as the parties and issue involved therein are same. CRR No. 1973 of 2010 has been filed by the State challenging CRR No. 1973 of 2010 and other connected cases 2 the order dated 19.04.2010 passed by the Additional Sessions Judge, Hisar, discharging accused Samat Singh for an offence punishable under Section 376 IPC, whereas, CRR No. 2374 of 2010 has been filed by the complainant against the aforesaid order dated 19.04.2010 passed by the Additional Sessiones Judge, Hissar and CRR No. 3022 of 2010 has been filed by the complainant against the order dated 13.08.2010 passed by the trial Court, whereby, the application filed by the State under Section 319 Cr.P.C has been dismissed. Brief facts of the case are that on 02.01.2010 at 7.30 pm, prosecutrix went from her home to the diary of Puran alias Babli son of Krishan Kumar caste Brahmin, resident of Village Nalwa to give milk. Puran alias Babli made her to sit in Maruti Car No. HR20 D 6411 and took towards Dhangar Tibba. He stopped the car there. She started weeping. The said Puran alias Babli threatened her with knife and thereafter, committed rape upon her. The allegations against Samat Singh is that he knowingly told the prosecutrix to sit in the Car. On the basis of the said incident, FIR No. 78 dated 22.01.2010 was registered against Puran and Samat Singh. Both the accused were arrested and challan was presented by the police against them. Thereafter, the trial Court discharged accused Samat Singh vide order dated 19.04.2010 passed by the Additional Sessions Judge, Hisar. After framing of charge against accused Puran, the prosecution examined prosecutrix as PW1 and she fully supported the prosecution version. After the examination of the prosecutrix, the prosecution moved an application under Section 319 Cr.P.C for summoning Samat Singh. However, the said application was dismissed by the trial Court vide its order CRR No. 1973 of 2010 and other connected cases 3 dated 13.08.2010. In these petitions, the order dated 19.04.2010 passed by the Additional Sessions Judge, Hisar, discharging the accused Samat Singh for an offence punishable under Section 376 IPC as well as the order dated 13.08.2010 passed by the trial Court declining the application of the complainant under Section 319 Cr.P.C have been challenged by the State and the complainant on the ground that the trial Court has not appreciated the documents and evidence on the file which has resulted in miscarriage of justice. Learned counsel for the petitioner argued that while discharging the accused Samat Singh, the Court has not appreciated that Samat Singh after having conspired with accused Puran alias Babli, implored her to sit in the Car. There are specific allegations against Samat Singh both in the FIR as well as in the statement under Section 164 Cr.P.C which in itself was sufficient to convict respondent No. 2. Learned counsel for respondent No.2, on the other hand, submitted that as the time was dark being late evening and it was both cold and dark, therefore, Samat Singh advised the girl to take a lift from Puran alias Babli as he was already going to her house. Secondly, there is no prior meeting of minds. He did not know that the prosecutrix would be coming at that time and that Puran alias Babli will be going to said house. Moreover, he did not know the intention of Puran alias Babli. Reliance was placed on the judgment rendered in the cases of Ashok Kumar v. State of Haryana reported as 2003(1) RCR (Criminal), Pandurang and others v. State of Hyderabad reported as 1955 AIR (SC) 216 and Michael Machado and another v. Central Bureau of Investigation CRR No. 1973 of 2010 and other connected cases 4 and another reported as 2000(2) RCR (Criminal) 75 to contend that for making at an offence, there should be common intention and there must be pre-arrangement and meetings of minds of the accused and that it was not enough to have the same intention independently of each of the offender. Reliance was also placed on the judgment rendered by the Apex Court in the case of Sarabjit Singh and another v. State of Punjab and another reported as 2009 (3) RCR (Criminal) 388 to contend that summoning of person as additional accused under Section 319 Cr.P.C should be done only when the Court finds that evidence on record is such which would reasonably lead to conviction of person sought to be summoned. Heard. There is absolutely no dispute with regard to the well settled proposition of law qua the ingredients of Section 34 of the IPC i.e. common intention which require to be establish a pre-arrangement and prior meeting of minds of the accused as well as the fact that the Court must arrive at a reasonable satisfaction from the evidence already collected that there was reasonable prospects of convicting them of the offence before examine the person under Section 319 of the Code of Criminal Procedure. The test as laid down in the judgment is required to be seen in the back ground of the facts of the present case, for which, it may be necessary to go through the allegations in the FIR. The relevant portion of the FIR is reproduced as under:- “I study in Class 7th. Yesterday on 21.01.2010 at 7.30 pm, I went from my home to the diary of Puran alias Babli son of Krishan Kumar caste Brahmin resident of village Nalwa to give the milk. Puran alias Babli made CRR No. 1973 of 2010 and other connected cases 5 me to sit in maruti Car No. HR 20-D 6411 and took towards Dhangar Tiba. He stop the car there. I started weeping. Puran alias Babli showed me knife and started moving his hands on my chest and started tore my clothes then with bad intention broke the nada of my Salwar and then I started weeping then Rajpal son of Guljari Lal, my brother Ram Kumar son of Arjun came there. Puran alias Babli ran from the spot leaving the Car. It is requested a legal action be taken against Puran alias Babli and in the Dairy Samat Singh told to me to sit in the car who was working in the dairy of milk.” On the basis of aforesaid allegations in the FIR, the matter was investigated and after investigation, challan was filed against accused Samat Singh and Puran alias Babli. Thereafter, the trial Court discharged accused Samat Singh only on the ground that there was nothing which may enable the Court to conclude that Samat Singh was aware of the evil design of co- accused Puran alias Babli. Whereas, the said Samat Singh suffered a confessional statement which reads as under :- “In presence of witnesses Sammat accused above said without any fear himself confessed that n 21.01.2010, I and Puran alias Babli alias Balwan son of Krishan caste Sharma resident of Nalwa made a plan together in the diary of Puran alias Babli that Asha d/o Karan Singh caste Kumhar resident of Nalwa come to give milk and is of my caste. Puran alias Babli alias Balwan s/o Krishan wants to take her to Dhangar Tibba to do wrong act with her. If Asha refused t sit in car, I will ask her to sit in car. She will sit. At 7.30 Asha came to give milk after giving milk Puran alias Babli alias Balwan asked Asha to sit in Car and asked Asha that he will leave her at home. Asha refused to sit. So as per plan, I asked CRR No. 1973 of 2010 and other connected cases 6 Asha to sit in the car and she sat in his car and Puran took car towards Dhangar Tibba. The confessional of accused has been written on which accused and witnesses put their signatures.” Thereafter, the prosecutrix also suffered a statement under Section 164 Cr.P.C. The relevant portion of the statement under Section 164 Cr.P.C reads as under:- “Stated that in our village, there is Milk Diary of Brahmin and I had gone there to give the milk. Where Samat is also working and the dairy is of Puran alias Babli. When I gave the milk then Puran alias Babli told to stop and said that I am going to your house for giving the payment of milk and you (complainant) should also sit in the vehicle. Samat said that she should sit in the vehicle as he is going to her house for giving the amount of milk. Then, I said that I will go on foot and again Samat said 'do not afraid' he is going to her house for giving the payment of milk and he would leave her to her house and I (Samat) is also coming to her house after some time then she sat on the back seat. The above facts show that after investigation, challan was filed against both Samat Singh and Puran alias Babli. So it is not a case where Samat Singh was summoned under Section 319 Cr.P.C in spite of the fact that he was found innocent by the Police. The statement under Section 164 Cr.P.C coupled with the fact that the police too found respondent No. 2 guilty is in itself sufficient to conclude that there are reasonable chances of conviction of Samat Singh. The question as to whether there was any common intention or not, or Samat Singh had connived with other accused Puran alias Babli to coax and implore the prosecutrix to sit in the car in order to enable accused Puran alias Babli to execute his plan is a matter of CRR No. 1973 of 2010 and other connected cases 7 evidence to be produced at the time of the trial. Moreover, there is nothing on record to suggest that there was any enmity or motive to enrope Samat Singh. Hon’ble the Supreme Court in the case titled as Suman vs. State of Rajasthan reported as 2009(4) RCR(Criminal) 908 dismissed the appeal challenging the order under Section 319 Cr.P.C., wherein, the sister- in-law was found innocent during investigation but was summoned under Section 319 Cr.P.C by holding as under :- “17. In the light of the above, we shall now consider whether the learned Judicial Magistrate was justified in taking cognizance against the appellant under Section 498- A IPC or the satisfaction recorded by him for issuing process against the appellant under Section 319 Cr.P.C is vitiated by any legal infirmity and the learned Sessions Judge and High Court committed an error by refusing to quash the order passed by him. In the complaint filed by her, respondent No.2 alleged that after one week of the marriage, her mother-in-law – Rukmani Devi and nanad – Suman (the appellant herein) told her that in the marriage, items like scooter, fridge, air-conditioner etc. have not been given and the marriage party was not served well; that mother-in-law – Rukmani Devi and nanad – Suman forcibly took the complainant to a lady doctor and got implanted Copper-T so that she may not give birth to any child; that nanad – Suman started instigating the husband of the complainant either on phone or otherwise and thereupon, he not only used to assault, but also humiliate and torture the complainant; that on 7.4.2002 the husband gave beating with the belan and nanad – Suman snatched her hair and forcibly removed the rings. In her statement made before the CRR No. 1973 of 2010 and other connected cases 8 police under Section 161 Cr.P.C., respondent No.2 reiterated all the allegations. The father and mother of respondent No.2 and 4 other persons, whose statements were recorded under Section 161 Cr.P.C., clearly spelt out the role played by the appellant in harassing respondent No.2 and instigating her husband to inflict torture upon her. Despite this, the police did not file charge-sheet against the appellant thinking that she had no occasion to make demand for dowry or harass respondent No.2 because she was living with her husband, Mahendra Pal at Bikaner. In her statement recorded under Section 164 Cr.P.C., respondent No.2 again made specific allegations against the appellant. While deciding the application filed under Section 319 Cr.P.C., the learned Judicial Magistrate noticed the allegations made by respondent No.2 in the complaint that her mother-in-law, Smt. Rukmani Devi and sister-inlaw, Suman had castigated her for insufficient dowry and subjected her to physical and mental harassment and that the sister-in- law had instigated her husband to inflict physical torture, which were supported by the statements recorded by the police under Section 161 Cr.P.C. The learned Judicial Magistrate further noted that in her statement under Section 164 Cr.P.C., the complainant has clearly spelt out the role played by the appellant in the matter of demand of dowry, physical and mental harassment and the fact that the complainant had made a specific mention about this in the letters written to her parents and opined that prima facie case was made out for issuing process against the appellant.” In the present case also, specific allegations leveled by the prosecutrix. In fact, respondent No. 2 was also held guilty by the police while filing challan against him. CRR No. 1973 of 2010 and other connected cases 9 In view of the foregoing discussion, the present petitions are allowed and the order dated 19.04.2010 passed by the Additional Sessions Judge, Hisar, discharging accused Samat Singh for an offence punishable under Section 376 IPC as well as the order dated 13.08.2010 passed by the trial Court, dismissing the application under Section 319 Cr.P.C. are set aside. Accordingly, the trial Court is directed to proceed against Samat Singh in accordance with law. However, nothing said herein will affect the merits of the case. Photo copy of the order be placed on the connected files. (Nirmaljit Kaur) Judge 17.05.2011 mohan CRR No. 1973 of 2010 and other connected cases 10