Punjab-Haryana High Court
Pankaj Kumar vs State Of Haryana on 12 March, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Appeal No.1143-SB of 1999(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1143-SB of 1999(O&M)
Date of Decision: 12th March, 2013
Pankaj Kumar
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Sudhir Sharma, Advocate,
for the appellant.
Mr.Anupam Sharma, Assistant Advocate
General, Haryana.
Naresh Kumar Sanghi, J.
Challenge in this criminal appeal is to the judgment of conviction dated 26.11.1999 and the order of sentence dated 27.11.1999 passed by the learned Additional Sessions Judge, Gurgaon, whereby the appellant, namely, Pankaj Kumar, was held guilty for the offence punishable under Section 366, IPC and ordered to undergo rigorous imprisonment for four years, besides the payment of fine of ` 5,000/- and in default thereof to undergo further rigorous imprisonment for six months.
Brief facts of the case are that on 27.06.1997, the complainant, Rambir Singh (father of the prosecutrix), lodged a report with the police to the effect that he was serving in Delhi and had four daughters and a son. His elder daughter was married and was residing at her in-laws house. His younger daughter (prosecutrix), aged about 17 years, was studying in B.A.Part-I. On 23.06.1997, her result was to be Criminal Appeal No.1143-SB of 1999(O&M) 2 declared, so she went to the college at about 8.0-0 a.m to enquire about the same but she did not come back. Accused-Pankaj Kumar was studying with her, who was also missing from his house from that date. He (complainant) was confident that accused-Pankaj Kumar had kidnapped her. On the basis of his statement, FIR No.119, dated 27.06.1997, for the offence punishable under Section 363, IPC, was registered at Police Station, Farrukh Nagar. On 30.07.1997, the prosecutrix was found sitting at Railway Station, Gurgaon. Her statement under Section 164, Cr.P.C. was recorded. She stated that on 23.07.1997, when she started from her house to enquire about her result, the accused, Pankaj Kumar, who was studying in the same class with her, also met her at the Station. He asked her to sit along with him in the same compartment, but she did not agree and sat in another compartment. She went to the college and found that she was having compartment in History. The accused, Pankaj Kumar, met her at the gate of the college and told her that he had also failed. He offered a rickshaw to drop her at the station. When she sat in the rickshaw, he showed knife to her and told to follow his directions and in case she would not obey his directions, his family members would kill her brother and father. He also told that he was highly connected. He took her in a jungle of Rajendera Park on the rear side of Railway Station and committed rape. Thereafter, he asked her to straight the clothes. He took her to Delhi in a train. Manohar Lal, father of the accused, Pankaj Kumar, met them there. He also threatened her and asked to follow as told by them. Manohar Lal said something to the accused, Pankaj Kumar, and also gave some money. Thereafter, the accused and the prosecutrix boarded another train. She kept on weeping in the train. Upon eating the Criminal Appeal No.1143-SB of 1999(O&M) 3 sweets offered to her, she become unconscious. At about 4.00 a.m when she gained consciousness, it came to her knowledge that they had reached Nagpur. Accused Pankaj Kumar took her to Gandi Basti and committed rape on her. They stayed there up to 28.07.1997. Pankaj Kumar used to beat her. In the morning of 28.07.1997, she consumed kerosene oil and 08 Disprin tablets. When Pankaj Kumar came there, she told him that she would die and he would be arrested by the police. He took her to Delhi by train and from Delhi to Gurgaon by bus. Thereafter, Pankaj Kumar made her to sit there and he escaped therefrom. On the basis of her statement, Section 376, IPC was also added. She was got medico- legally examined. Her statement was also got recorded before the Magistrate. Statements of the other witnesses were also recorded. After completion of necessary investigation, a report under Section 173, Cr.P.C, was prepared by the Sub Inspector/Station House Officer-Shakuntla and was sent to the Court for the trial of the accused.
On finding a prima facie case, the accused, Pankaj Kumar, was charge-sheeted for the offence punishable under Sections 366, 376 and 506, IPC. The contents of the charges were read over and explained to the accused in Hindi to which he pleaded not guilty and claimed trial.
To substantiate its allegations, the prosecution has examined the following witnesses:-
PW-1 Dr.Ravi Bala Sharma, Medical Officer, CHC, Farrukh Nagar PW-2 Dr.P.C.Arya, Medical Officer, Civil Hospital, Gurgaon PW-3 SI Shakuntla, Investigating Officer PW-4 Rambir Singh, father of the prosecutrix Criminal Appeal No.1143-SB of 1999(O&M) 4 PW-5 ASI Ram Phal After closure of the prosecution evidence, the statement of the accused, in terms of Section 313, Cr.P.C., was recorded. He denied all the incriminating evidence appearing against him and pleaded false implication.
In his defence, the accused examined Ms.Aaradhna Sawhney, learned Judicial Magistrate Ist Class, Panchkula, as DW-1, and closed the defence evidence.
After hearing the learned counsel for the parties, the learned trial court acquitted the appellant for the offences punishable under Sections 376 and 506, IPC, but held him guilty for the offence punishable under Section 366, IPC and sentenced to undergo rigorous imprisonment for four years besides the payment of fine of ` 5,000/- as has been mentioned in the initial part of the judgment.
I have heard the learned counsel for the parties and with their able assistance, gone through the record.
The date of birth of the prosecutrix is 30.12.1977, and the alleged occurrence of kidnapping had taken place on 23.06.1997. The matter was reported to the police on 27.06.1997. On 21.08.1997 the prosecutrix had suffered statement (Ex.DE) under Section 164, Cr.P.C., before the learned Judicial Magistrate which is as under:-
"Stated that Pankaj is studying with her in 12th Class. For the last two years, we had a love-affair. Both of us wanted to solemnize the marriage with each other. However, we were afraid of our family members. For solemnizing the marriage, we ran away from our houses on 23.06.1997. We went to Nagpur and stayed in a lodge and solemnized the marriage in Criminal Appeal No.1143-SB of 1999(O&M) 5 a temple. We had a certificate to that effect but the same was torn by our family members. The entry in the register of the Priest to that effect was also recorded. We had also got prepared the marriage documents from the court but the same were not got registered. Thereafter, on 14.07.1997 we were caught from the house of our sister at Kamthi. The sister and her husband confined us in a room and informed the family members. On 16.07.1997, my parents reached there and they forced Pankaj to run away and forcibly bring me along with them. They pressurized me to suffer the statement against Pankaj. They wanted to solemnize my marriage with someone else against my wishes. On 20.08.1997, I run away from my house with my sweet and free ]will. The said fact is not known to my family members."
On 31.07.1997, another statement (Ex.PH) of the prosecutrix was recorded which is as under:-
"Stated that on 23.07.1997 at about 7.30 a.m. I had gone to the college to know my result of BA Part-I from my house. The boy, namely, Pankaj Saini, son of Manohar Lal, came to me and told me to sit in his compartment (train). While ignoring his request, I boarded to another compartment. After reaching the college, I saw my result. I had a compartment in the History subject. Pankaj met me at the gate of the college and told me that he had also failed in the examination. At that time, he was sitting in a rickshaw and told me that he would leave me at the station. As soon as I boarded the rickshaw, he showed me a knife and told me to obey his commands and to go where-ever he liked otherwise her brother and father would be killed by his family members. He also told that they were men of resources. He took me to a lonely place at Rajindera Park on the rear side of the station and committed rape on me. Thereafter, he asked me to dress up properly and took me to New Delhi in Kalandi Train where Criminal Appeal No.1143-SB of 1999(O&M) 6 his father met me and he too threatened me and asked me to follow their commands. He had a talk with Pankaj also and gave him the money. He made me to sit in the train, I kept on weeping. He offered me barfi (sweet) and thereafter, I become unconscious and on regaining consciousness, I came to know that we had reached Nagpur. It was 4.00 a.m. Thereafter, he took me to Gandi Basti where he committed rape on me. We stayed at Nagpur up to 28.07.1997. He used to severely beat me. In the morning of 28.07.1997, I consumed kerosene oil and eight tablets of Disprin. When he came from outside then I told him that I would die and he would be apprehended by the police. Thereafter, he took me to the station and the train straightway came to Delhi. From Delhi, we came to Gurgaon by bus. At Gurgaon he made me to sit and went away. Thereafter, the police got my medical examination conducted and called my parents".
It is apposite to mention here that during the trial, the prosecutrix did not appear. There is not an iota of substantive evidence which can even suggest that the appellant abducted her. The learned trial court while holding the appellant guilty for the offence punishable under Section 366, IPC, held as under:
"10. The learned defence counsel vehemently argued that as per evidence available on the file, it cannot be opined that accused kidnapped the prosecutrix, as alleged by the prosecution. From the perusal of copy of the Matriculation Certificate Ex.DB and Admission Form Ex.DC, it is clear that her date of birth was 30.12.1977. In this way, she was major on the date of the occurrence i.e. 23.06.1997. PW-4 has admitted that his daughter Nisha was studying at DSD College, Gurgaon. Accused Pankaj Kumar was also studying in that very college in the same class. They were in love with each other and ran away from the house to marry each other because Criminal Appeal No.1143-SB of 1999(O&M) 7 their family members would not have permitted them to marry. The prosecutrix Nisha admitted in her statement Ex.DE recorded under Section 164, Cr.P.C by DW-1 that they ran away from the house at their own and they married at Nagpur. Thereafter, they lived as husband and wife at Nagpur. So, in this way, it cannot be opined that the accused kidnapped her to force her to marry him. When her statement Ex.DE was recorded, she filed an affidavit Ex.DG that previous statement was made by her under pressure and force of her parents and relatives.
11. I do not agree with this contention. It may be mentioned here at the very beginning that the statement recorded under Section 164, Cr.P.C is not a substantive evidence and can only be used to confront the witness. It can only be relied upon and used as provided under Section 32 of the Indian Evidence Act, 1872 (In short Act). But, any how when the reference has been made to the statement during arguments, it is better to discuss the same. The learned Magistrate recorded the statement of the prosecutrix twice. Initially, the statement of the prosecutrix, Ex.PH, was recorded on 31.07.1997 and thereafter, her statement Ex.DE was again recorded as per her request made through application Ex.DD. The learned Magistrate has given a Certificate at both the times that prosecutrix was making statement at her own will, without fear and coercion. The learned Magistrate has also asked her to wait for about 15/20 minutes after prosecutrix was questioned to verify about her willingness. It means that when her statement was recorded, she was not under any one's pressure. When her statement was recorded on 31.07.1997 she corroborated the statement recorded by the police as mentioned above. It was stated by her that when she came out from the college after seeing the result, accused Pankaj Kumar offered her a lift in Rickshaw and later on, kidnapped her threatening her with a knife. She Criminal Appeal No.1143-SB of 1999(O&M) 8 also stated that he raped her near the Station and thereafter, at Nagpur. She corroborated the prosecution version in toto. When her statement was recorded again on 21.08.1997, it was stated that accused Pankaj Kumar had not kidnapped her and she was having love-affair with him. Both the statements are contradictory with each other. So, no reliance can be placed upon them. Affidavit Ex.DG cannot be relied upon because it is not proved that the affidavit was sworn by prosecutrix Nisha. Neither the Oath Commissioner has entered the witness box nor the person who identified her before the Oath Commissioner has come to the court and said that the affidavit was sworn and signed by Nisha.
12. Be that as it may, the accused has alleged that Nisha went with him at her own. It is well settled proposition of law that when a specific plea is raised by the accused, he is to prove the same. The accused had not produced even a single witness to prove that she had gone with him at her own and he did not induce her to accompany him whereas, PW-4 stated that accused Pankaj Kumar might have kidnapped his daughter. Accused has admitted that Nisha had gone with him. But, it is not proved that she had gone at her own. In cross-examination, it was also suggested to PW-4 that accused Pankaj Kumar married her and they lived as husband and wife at Nagpur, but, the accused has miserably failed to prove that there was any legal marriage in between Nisha and him. When the accused has alleged that he married prosecutrix Nisha, it was his duty to prove that there was a valid marriage between them and that she married him without any force. The accused has not produced the 'Pandit" who performed the marriage. If the prosecutrix was major at the time of occurrence, it does not mean that she had gone at her own and was not kidnapped. Even a major lady can be kidnapped to force her to marry. Not only as per prosecution evidence but also as per accused's version, it is clear that prosecutrix Criminal Appeal No.1143-SB of 1999(O&M) 9 Nisha had gone with him and he married her. Accused has produced copy of compromise Ex.DA in the Court vide which it was decided that all the cases will be settled by the parties amicably. This compromise shows that accused Pankaj Kumar would stay out of the village for one year and would not approach the prosecutrix. He would not write letters etc also to her. It shows that he was enticing the prosecutrix to accompany him. Has this evidence not come on the file then it would have been a different matter. It may be mentioned here that it was nowhere mentioned in compromise Ex.DA that prosecutrix married Pankaj Kumar at her own. As already discussed above, it is not proved that she had married the accused at her own will. Later on, she was married at one Rajput boy but she has died. Her death does not prove that she has died because she was married against her wishes. So, these arguments are of no avail.
13. As a sequel to my above discussion, it is clear that the prosecution has succeed to prove that accused kidnapped the prosecutrix and married her by force and the case punishable under Section 366, IPC is proved against him."
The findings recorded above are self-contradictory. The learned trial Judge observed that the statement recorded in terms of Section 164, Cr.P.C., was not a substantive piece of evidence, therefore, no reliance could be placed on the same. On the other hand, without there being any material on record connecting the accused/appellant with the abduction or kidnapping of the prosecutrix, learned trial court held him guilty under Section 366, IPC, while taking into consideration the statement dated 31.07.1997, recorded under Section 164, Cr.P.C. Be that as it may, it is a fact that two statements of the prosecutrix were recorded. In the statement dated 31.07.1997, she did allege the Criminal Appeal No.1143-SB of 1999(O&M) 10 kidnapping and rape but in the statement dated 21.08.1997, she took "u" turn and specifically deposed before the Magistrate that under the pressure of her family members, she had suffered the earlier statement. She further stated in unequivocal terms that she had love-affair with the appellant and had run away from her house to perform marriage with him (appellant). According to the material available on record, she was more than 20 years of age on the alleged date of her leaving the house. The benefit of the statement under Section 164, Cr.P.C., might not be taken in favour of the prosecution but it can be read in faovur of the appellant when Ms.Aaradhna Sawhney, learned Judicial Magistrate Ist Class, Panchkula, did appear before the learned trial court as DW-1 and specifically deposed that the prosecutrix herself appeared before her and voluntarily suffered the statement on 21.08.1997.
Even otherwise, the learned trial court had returned the findings of guilt while presuming that the appellant had to disprove the allegations levelled by the prosecution. The appreciation of the evidence by the learned trial court was against the settled norms on the criminal cases. It is settled that the accused has to probablize his defence. It is even true that the accused may remain mum and if from the prosecution version, he can probalize his innocence then also the benefit has to be extended to the accused. In the case in hand, the prosecution has miserably failed to connect the appellant with the offence punishable under Section 366, IPC, rather the appellant has probablized from the said evidence that the prosecutrix was approximately 20 years on the date of the alleged occurrence and she left the house with her own free consent and will for performing the marriage with the appellant. Criminal Appeal No.1143-SB of 1999(O&M) 11
In Rabindra Kumar Dey vs. State of Orissa, AIR1977 SC170, the Hon'ble Supreme Court held as under:-
"It is true that under Section 105 of the Evidence Act, the onus of proving exceptions mentioned in the Indian Penal Code lies on the accused, but this Section does not at all indicate the nature and standard of proof required. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that, it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by Section 5 of the Evidence Act as a result of which he succeeds not because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court. This aspect of the matter is no longer res integra but is concluded by several authorities of this Court. In Harbhajan Singh vs. State of Punjab, (1965)3 SCR 235 at p.241 this Court observed as follows:-
"But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit of an Exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal case; and there is consensus of judicial opinion in favour of the view Criminal Appeal No.1143-SB of 1999(O&M) 12 that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as discharged is the accused person succeeds "
in proving a preponderance of probability". As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution, has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt."
A reference can also be made to Ronal Kiprono Ramkat vs. State of Haryana, 2001(3)RCR(Criminal)766, wherein the Hon'ble Supreme Court held as under:-
"Court cannot expect the accused to establish his defence by the same standard that the prosecution should establish the guilt of an accused beyond reasonable doubt-It was enough to show that the defence was probable in the given circumstances."
Keeping in view the totality of the facts and circumstances of the case and the law on the subject, discussed above, this Court is of the considered opinion that the conviction and sentence of the appellant for the offence punishable under Section 366, IPC, cannot sustain and, as Criminal Appeal No.1143-SB of 1999(O&M) 13 such, the same is hereby set aside. The appellant/accused is acquitted of the charge levelled against him.
Accordingly, the appeal is allowed.
March 12, 2013 (Naresh Kumar Sanghi) seema Judge