Punjab-Haryana High Court
Surinder Singh vs State Of Punjab on 29 August, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Appeal No.1095-SB of 2001 ...1...
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1095-SB of 2001
Date of Decision: 29th August, 2013
Surinder Singh
...Appellant
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Karamjit Verma, Advocate,
for the appellant.
Mr.Sandeep Chhabra, DAG, Punjab.
***
Naresh Kumar Sanghi, J.
Challenge in this appeal is to the judgment of conviction and the order of sentence dated 26.07.2001 passed by the learned Additional Sessions Judge, Ludhiana, whereby the appellant was held guilty for the offences punishable under Sections 452 and 376, IPC, and ordered to undergo the following sentences:-
Offence Sentence (in R.I) Fine (in `) In default (in S.I) 452, IPC 1-1/2 years 1000/- Two months 376, IPC 7 years 2000/- Three months Both the sentences were ordered to run concurrently. The brief facts of the case are that the complainant, Bakshish Singh (PW-2), resident of village Rajewal, Police Station, Samrala, District Ludhiana, had a son, namely, Karamjit Singh, Criminal Appeal No.1095-SB of 2001 ...2...
whose marriage was solemnized with the prosecutrix (named concealed in view of the directions issued by Hon'ble the Supreme Court) a few days prior to 15.02.1997, the date of occurrence. Bhag Singh (PW-3) is the grand father-in-law of the prosecutrix. ASI Harbans Lal (PW-4) had investigated the case. On 20.02.1997, Bakshish Singh (PW-2) presented an application (Ex.PA) before the Senior Superintendent of Police, Khanna (District Ludhiana) to the effect that on 15.02.1997, the appellant entered into his house and mis-behaved with his daughter-in-law (prosecutrix). On hearing the noise, his grand father-in-law Bhag Singh (PW-3) reached the spot and after pushing him (Bhag Singh), the appellant ran away from the spot. The Senior Superintendent of Police, Khanna, marked the said application to the Deputy Superintendent of Police, Head Quarter, Khanna, for inquiry who, in turn, recommended for registration of the case for the offences punishable under Sections 354 and 452, IPC, against the appellant vide his inquiry report dated 08.03.1997. On the basis of the said inquiry, FIR (Ex.PA/1) was registered for the offences punishable under Sections 354 and 452, IPC. The appellant was arrested and granted bail. After investigation, the charge-sheet (report under Section 173, Cr.P.C.) was presented before the learned Area Judicial Magistrate. The charges for the offences punishable under Sections 354 and 452, IPC, were framed against the appellant. During the course of her statement Criminal Appeal No.1095-SB of 2001 ...3...
before the learned Area Judicial Magistrate, the prosecutrix deposed that in fact, the appellant had committed rape on her, therefore, the learned Magistrate formed the opinion that the appellant had committed the offence punishable under Section 376, IPC, as such, the case was committed to the Court of Session for trial.
After finding a prima facie case, the learned Additional Sessions Judge framed charges for the offences punishable under Sections 354, 452 and 376, IPC, against the appellant to which he pleaded not guilty and claimed trial.
The prosecution, in order to substantiate the charges, examined the following witnesses:-
PW-1:- the prosecutrix
PW-2:- Bakshish Singh, complainant (father-in-law
of the prosecutrix)
PW-3:- Bhag Singh (grand father-in-law of the
prosecutrix)
PW-4:- ASI Harbans Lal, Investigating Officer
of the present case.
After completion of the prosecution evidence, the statement of the appellant, in terms of Section 313, Cr.P.C., was recorded wherein he denied the incriminating material appearing against him and pleaded innocence.
No evidence in defence was led.
Learned trial court held the appellant guilty for the offences punishable under Sections 452 and 376, IPC, and passed Criminal Appeal No.1095-SB of 2001 ...4...
the order of sentence as has been discussed in the initial part of the judgment.
Learned counsel for the appellant has confined his arguments to the extent that no offence under Section 376, IPC, is made out against the appellant. In support of his contention, he has referred to the application (Ex.PA) presented by Bakshish Singh (PW-2) before the Senior Superintendent of Police, Khanna, (District Ludhiana) wherein there is no reference with regard to the commission of rape. The bare reading of the said application shows that the only allegation averred was that the appellant mis- behaved with the prosecutrix and after arrival of Bhag Singh (PW-
3), the appellant pushed him (Bhag Singh) and ran away from the spot. He has also referred to the statement (Ex.DA) of the prosecutrix recorded on 11.03.1997, in terms of Section 161, Cr.P.C., wherein there is no reference with regard to commission of rape. He has also referred to the statement of Bhag Singh (Ex.DB) recorded on 11.03.1997 wherein there is no reference with regard to the commission of rape on the prosecutrix by the appellant. He has also referred to the deposition of the prosecutrix (PW-1) made before the learned Additional Sessions Judge wherein she was specifically asked a question as to whether the factum of rape was disclosed to the police when her statement under Section 161 Cr.P.C was recorded. She was duly confronted with the said statement. Similarly, Bhag Singh (PW-3) Criminal Appeal No.1095-SB of 2001 ...5...
was also confronted with his previous statement (Ex.DB) with regard to his improved statement in connection with the commission of rape. He further submits that the occurrence had taken place on 15.02.1997 and for the first time, the police was informed with regard to the said occurrence on 20.02.1997 by way of the application (Ex.PA). The said application was marked to the Deputy Superintendent of Police, Head Quarter, Khanna for inquiry. Even in the inquiry, it was found that the appellant had committed the offences punishable under Sections 452 and 354, IPC and on such inquiry, FIR (Ex.PA/1) was recorded. Even the charge-sheet (report under Section 173, Cr.P.C.) was submitted before the learned Area Judicial Magistrate for the prosecution of the appellant for the offences punishable under Sections 354 and 452, IPC.
On the basis of these submissions, he submits that the conviction of the appellant for the offence punishable under Section 376, IPC, is not sustainable.
Learned counsel for the State very fairly concedes that in the application (Ex.PA) as well as in the statement of the prosecutrix (Ex.DA) recorded by the police on 11.03.1997, there is no reference with regard to the commission of rape by the appellant and that even in the statement (Ex.DB) of Bhag Singh the factum of commission of rape is missing. He also fairly concedes that as per the inquiry conducted by the Deputy Criminal Appeal No.1095-SB of 2001 ...6...
Superintendent of Police, Head Quarter, Khanna, the offences punishable under Sections 354 and 452, IPC, were committed by the appellant. He further concedes that the prosecutrix was not medico-legally examined, therefore, there was no medical evidence with regard to the commission of rape. However, he submits that the learned Area Judicial Magistrate as well as the learned Additional Sessions Judge (trial court) had arrived at a conclusion that the accused/appellant did commit rape attracting the mischief of the offence punishable under Section 376, IPC, therefore, the order of conviction and sentence be not disturbed.
I have heard the learned counsel for the parties and with their able assistance gone through the material available on record.
It is the conceded position that the FIR in the present case was registered more than 25 days after the occurrence. Though the application (Ex.PA) was presented before the Senior Superintendent of Police, Khanna, on 20.02.1997, but the said application was marked to the Deputy Superintendent of Police, Head Quarter, Khanna, for inquiry. In the said inquiry, the Deputy Superintendent of Police, Head Quarter, Khanna, found it to be a case under Sections 354 and 452, IPC. After registration of the FIR on 11.03.1997, the statements of the prosecutrix (PW-1) and that of Bhag Singh (PW-3) were recorded, in terms of Section 161, Cr.P.C., but the fact with regard to the commission of rape Criminal Appeal No.1095-SB of 2001 ...7...
was conspicuously missing. There was no medical evidence connecting the appellant with the commission of rape. The improved portion of the depositions of the prosecutrix and that of Bhag Singh (PW-3) were duly confronted with their previous statements. The prosecution has failed to examine the Deputy Superintendent of Police, Head Quarter, Khanna, who initially inquired into the matter. Even the Investigating Officer, ASI Harbans Lal (PW-4), is silent with regard to the commission of offence punishable under Section 376, IPC.
Keeping in view the totality of the facts and circumstances of the case, this Court is of the firm opinion that at best, it can be concluded that the appellant had committed the offence punishable under Section 354, IPC (outraging the modesty of a woman) and during trial, the complainant and rest of the witnesses improved their statements to aggravate the commission of offence by the appellant, therefore, the conviction and the sentence of the appellant for the offence punishable under Section 376, IPC, is set aside and he is acquitted of the said charge. However from the material available on record, it is clearly made out that the appellant entered into the house of the prosecutrix finding her all alone there on 15.02.1997 at 3.00 p.m and tried to outrage her modesty, therefore, he is held guilty for the offences punishable under Sections 354 and 452, IPC. The maximum sentence under Section 354, IPC, on the date of Criminal Appeal No.1095-SB of 2001 ...8...
commission of offence, was imprisonment for two years or with fine or with both. During the course of arguments, learned counsel for the State has produced the affidavit of Deputy Superintendent of Police, Central Jail, Ludhiana, showing that the appellant had suffered incarceration for 02 years, 07 months and 27 days in this case, therefore, the appellant has already suffered the maximum sentence of imprisonment as provided under Section 354, IPC, at the time of commission of offence. He has also undergone rigorous imprisonment for 1-1/2 years, the sentence awarded for the offence punishable under Section 452, IPC. Therefore, the substantive sentence of the appellant is reduced to the period already undergone by him. The fine imposed under Section 376, IPC, shall be construed to have been imposed under Section 354, IPC.
Accordingly, the present appeal is partly allowed in the manner indicated above.
August 29, 2013 (Naresh Kumar Sanghi) seema Judge