Punjab-Haryana High Court
Amit vs State Of Haryana on 20 May, 2013
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No. S.293 SB of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. S.293 SB of 2006
Date of decision 20.05.2013.
Amit
...... Appellant.
versus
State of Haryana
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment? yes
2. To be referred to the Reporters or not? yes
3. Whether the judgment should be reported in the Digest? yes
Present :- Mr. Sudhir Sharma, Advocate for the appellant.
Ms. Shruti Jain, A AG, Haryana
K.C.PURI, J.
Appellant-Amit has directed the present appeal against the judgment and order dated 4.1.2006 passed by Shri A.K.Shori, learned Additional Sessions Judge, (Fast Track Court ) Sonepat vide which accused/appellant has been convicted under Section 363, 366-A, 376-G, 342 and 506 of the Indian Penal Code (in short - the IPC) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- and in default thereof to further undergo RI for one year under Section 376(ii)(g) of the IPC; to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/- for each offence and in Criminal Appeal No. S.293 SB of 2006 2 default thereof to further undergo SI for six months under Section 363 and 366-A of the IPC for each of the offence and to undergo rigorous imprisonment for a period of six months for each offence under Section 345 and 506 of the IPC for each of the offence. All the sentences were ordered to run concurrently.
3. Briefly stated, the prosecution story is that on 22.7.2005 ASI Ranjeet Singh along with HC Sukhbir and lady constable Maneesha was present near 20th mile stone, on GT Road, Sonepat at about 3.00p.m. in connection with patrolling duties. At that juncture prosecutrix approached ASI Ranjeet Singh while she was being accompanied by her parents. Said prosecutrix got recorded her statement with ASI Ranjeet Singh that she is student of 8th standard of Moti Lal Nehru Sports School Rai and her father Raj Singh is working as Mess Assistant in the said school. On 19.7.2005 at about 5.30p.m., she had started from her house for proceeding to Sonepat in order to make certain purchases. Soon after she came out of the school on GT road, a jeep having white colour came from the side of Sevli Road being driven by Amit accused and his co-accused Satpal (since juvenile) was sitting on the co-driver seat. Prosecutrix gave signal to the jeep to stop as she wanted lift for Sonepat. The jeep was stopped by accused and she asked him if they were proceeding towards Sonepat and when they nodded to the same and she boarded the jeep. From a chowk on GT Road, accused Amit turned the jeep towards Delhi which was resisted by the prosecutrix and she stated that she was to go to Sonepat and why the jeep was turned towards Delhi. Upon this co-accused Satpal threatened prosecutrix that she should keep mum otherwise she would be eliminated. She was forced to bow her Criminal Appeal No. S.293 SB of 2006 3 head and was forcibly taken to Delhi in the area of Azadpur. Both accused took her to a room in Azadpur at Delhi and they had disclosed their identity to her. Thereafter both the accused committed rape with her turn by turn after giving threats to her and she kept on weeping and cried also. She was wrongfully confined in the said room throughout the night. Both the accused disclosed her that they were wrestlers and were doing the exercise for wrestling in the Akhara of Chandroop. In the next morning at about 5.00a.m. the prosecutrix made an excuse for going to toilet and after coming out of the room she escaped from the clutches of the accused and came to Karnal by pass. From there she boarded a bus and came down to her house. At that time mother of prosecutrix was away as she had gone to house of her maternal uncle. On 21.7.2005 her mother returned and the prosecutrix told the entire incident to her mother. Therefore they approached the police. On the basis of aforesaid statement, FIR was registered and investigation commenced. Statements of the witnesses were recorded. The accused were arrested. After completion of the investigation challan against the accused was presented in the Court for trial.
4. On appearance of the accused, copies of documents were supplied to the accused persons and the case was committed to the Court of Session. Accused Satya Pal was declared Juvenile, therefore, his case was sent to the Juvenile Justice Board, Sonepat for trial. On finding a prima facie case, accused-Amit was charge-sheeted under Sections 363, 366-A, 376(2)(g), 342 and 506 of the IPC. The accused did not plead guilty to the charge and claimed trial.
5. To substantiate its case, prosecution has examined Dr. Anvita as Criminal Appeal No. S.293 SB of 2006 4 PW-1, Dr. O.P. Lohan as PW-2, T.C.Kathuria, Deputy Superintendent, Rai Sports School, Rai, as PW-3, prosecutrix herself appeared as PW-4, Raj Singh father of the prosecutrix as PW-5, Constable Inder Pal as PW-6 , ASI Rajpati mother of the prosecutrix as PW-7, ASI Ranjeet Singh as PW-8 and closed the evidence of the prosecution.
6. Statement of accused as envisaged under Section 313 Cr.P.C. was recorded, wherein all the incriminating material/evidence were put to him, he denied all the allegations levelled against him and pleaded his falsely implicated in this case. He stated that no rape was ever committed by him. He did not lead any evidence in defence.
7. The trial Court after hearing the learned counsel for the parties convicted and sentenced the accused-appellant vide judgment and order dated 4.1.2006 as aforesaid.
8. Feeling dissatisfied with the aforesaid judgment and order dated 4.1.2006, the present appeal has been filed.
9. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
10. Learned counsel for the appellant has challenged the conviction on the ground that there is no evidence on the file to convict the accused for the offences for which he has been convicted. So, it is submitted that statement of the witnesses has to be read as a whole and not in parts. Prosecutrix has not supported the case of the prosecution in the cross- examination and has explained the reason for deposing against the appellant in examination-in-chief. Father of the prosecutrix has also not supported the case of the prosecution.
Criminal Appeal No. S.293 SB of 2006 5
11. The learned counsel for the appellant has further contended that case of the prosecution is that Amit-appellant and Sat Pal son of Ranbir Singh has committed gang rape on prosecutrix. Sat Pal accused was juvenile and was tried by Principal Magistrate, Juvenile Justice Board. Vide judgment dated 6.3.2006 Ex.AX, placed on the record of this Court, it is revealed that said Satpal has been acquitted. The case of the appellant is not distinguishable to the case of Satpal. In the said case, prosecutrix as well as her father have not supported the case of the prosecution. In authority Kunji vs. State of Rajasthan RLW 2008 (1) Raj 145 Rajasthan High Court has held that in case the co-accused is acquitted with similar allegations, in that case, the appellant has to be given a benefit of doubt.
12. It is further contended that the charge of gang rape cannot be said to be proved in any manner as the co-accused has been acquitted. According to the prosecution there were only two persons who committed rape on the prosecutrix and in case one accused is acquitted then other accused cannot be convicted under Section 376(2)(g) of the IPC.
13. It is further submitted that appellant has undergone incarceration for a period of five years two months and sixteen days as on 14.1.2013 meaning thereby he has already undergone incarceration for a period of five years six months and sixteen days and as such his sentence in the alternative be reduced to the period already undergone. Criminal Appeal No. S.293 SB of 2006 6
14. Learned counsel for the appellant has further submitted that the trial Court has given much importance to the statement of the prosecutrix recorded under Section 164 of the Cr. P. C. The statement under Section 164 of the Cr. P. C., is not a substantial evidence and the same can be used only for the purposes of confrontation.
15. It is further contended that even if the factum of rape is established beyond a reasonable doubt, the accused cannot be convicted unless there is a reliable and acceptable evidence to come to the conclusion that it was the accused, who committed the rape. To fortify his contention, learned counsel for the appellant has relied upon authority Prahlad Singh vs. State of Madhya Pradesh reported in 1998 SCC (Cri) 123.
16. In reply to the above said submission, counsel for the State has supported the judgment of the trial Court. It is submitted that prosecutrix has supported the case of the prosecution against the appellant. She has been won over. The Division Bench of this court in authority Krishan and others vs. State of Haryana reported in 2005 (2) RCR (Criminal ) page 109 held that when a witness resiled from his previous statement made in Court, his testimony can be relied upon.
17. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case.
18. The factual position which merges out from the record is that the prosecutrix has supported the case of the prosecution in examination-in- chief but in the cross-examination she has demolished the case of the Criminal Appeal No. S.293 SB of 2006 7 prosecution. She has stated in the cross-examination that on the previous date she was not feeling well and on that account she could not properly identify the accused. The accused (appellant) was not the person who has committed rape upon the prosecutrix. Father of the prosecutrix has not supported the case of the prosecution.
19. It is also not disputed that Satpal is the co-accused against whom also there are charges under Section 376(2)(g) of the Act for raping prosecutrix. It is also not disputed that said Satpal was put to trial before Principal Magistrate, Juvenile Justice Board and vide judgment Ex.AX produced in the appeal file dated 6.3.2006, said Satpal had been acquitted. From the judgment dated 6.3.2006, it is revealed that prosecutrix has not supported the case of the prosecution at all against accused Satpal. Father of the prosecutrix has also not supported the case of the prosecution before Principal Magistrate, Juvenile Justice Board. Principal Magistrate, Juvenile Justice Board, Sonepat has acquitted Satpal in respect of the offence in question. Rajasthan High Court in case Kunji's case (supra) has held that in case the co-accused is acquitted in respect of the same allegations, in that case, the other accused cannot be convicted on the same set of allegations.
20. There is no doubt to the proposition of law that accused can be convicted on the basis of testimony made by witness in the examination-in-chief in respect of a solitary witness and this view is supported by judgment of Hon'ble Apex Court in authority Nisar Khan @ Guddu and others vs. State of Uttaranchal reported in 2006 (1) RCR (Criminal ) page 818 and Krishan and others' case (supra) relied upon Criminal Appeal No. S.293 SB of 2006 8 by the learned State counsel.
21. However, from the perusal of these authorities, it is revealed that evidence of witness in examination-in-chief should inspire confidence of the Court. In the present case, the prosecutrix is the sole witness who has supported in the examination-in-chief but has totally demolished the case of the prosecution in cross-examination. She has categorically stated in the cross-examination that appellant is not the person who has committed rape upon her. The prosecutrix and her father before Principal Magistrate, Juvenile Justice Board have categorically not supported the case of the prosecution against accused Satpal. There is judicial verdict in favour of Satpal-accused against whom the allegations are same as that of appellant.
22. The learned trial court has relied upon the testimony of the prosecutrix in statement under Section 164 of the Cr.P.C., ignored the basic principles of law that statement of the witness under Section 164 Cr.P.C., is not a substantive evidence and accused cannot be convicted on the basis of statement under Section 164 of the Cr.P.C. So, the trial Court has committed error by passing the conviction on the appellant on the basis of statement of the prosecutrix under Section 164 Cr.P.C. Hon'ble Apex Court in authority Brij Nath Sah vs. State of Bihar reported in 2010 (3) RCR (Criminal ) page 434 held that statement of witness recorded under Section 164 of the Cr. P. C. is not a substantive piece of evidence.
23. So, in view of the above discussion, the order of conviction recorded by the trial Court does not sustain the test of legal scrutiny and the same has to be set aside.
Criminal Appeal No. S.293 SB of 2006 9
24. In view of the above discussion, the appeal stands accepted. The judgment and order of the trial court stand set aside. The accused stands acquitted from the charges levelled against him by giving him benefit of doubt. The accused is stated to be in custody, he be released in case he is not required in any other case.
25. A copy of this judgment be sent to the trial Court for strict compliance.
May 20 , 2013 (K. C. PURI) sv JUDGE