Punjab-Haryana High Court
Karam Singh Alias Karma vs State Of Haryana on 29 August, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.S-467-SB of 1998
Date of Decision: August 29, 2013
Karam Singh alias Karma
...Appellant
VERSUS
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.R.S.Longia, Advocate
for the appellant.
Mr.Anil Kumar Malik, Deputy Advocate General, Haryana
for the respondent-State.
****
INDERJIT SINGH, J.
The present appeal has been filed by the appellant against the judgment of conviction dated 22.04.1998 and order of sentence dated 27.04.1998, passed by the learned Addl. Sessions Judge, Kurukshetra, whereby, he was held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 200/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one month under Section 367 IPC and further convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 200/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one month under Section 377 IPC. Both the sentences were ordered to run concurrently. Gulati Vineet 2013.09.10 10:14 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-467-SB of 1998 -2-
The brief facts of the prosecution case are that on 04.07.1994 at about 8.00 P.M., when there was no electricity, prosecutrix aged about three years daughter of Om Wati was playing in the street in Ladwa. She did not come in the house. Then at about 12.00 midnight, accused had brought prosecutrix to complainant Om Wati. Prosecutrix was weeping at that time and her both legs were in one part of nicker and there was some blood on the anus and the accused was suspected to have committed unnatural offence with the prosecutrix. When the husband of Om Wati returned, then she made statement Ex.PD on 05.07.1994 to the police, on the basis of which FIR was registered. Prosecutrix was medico legally examined. Accused was arrested and he was also medico legally examined on 09.07.1994. Statement of witnesses were recorded. On interrogation, accused made disclosure statement and demarcated the place of occurrence. Site plan was prepared. After necessary investigation, challan was presented against the accused-appellant.
On presentation of challan against accused-appellant, copies of challan and other documents were supplied to him under Section 207 Cr.P.C. Finding prima facie case, the accused-appellant was charge-sheeted under Section 367 IPC and Section 377 read with Section 511 IPC, to which he pleaded not guilty and claimed trial.
In support of its case, prosecution examined PW-1 Dr.D.V.Saini who medico legally examined prosecutrix on 05.07.1994 vide MLR Ex.PB. The doctor also stated that there were two reddish laceration each ¼ cm x ½ cm on outer side of external anal sphincter Gulati Vineet 2013.09.10 10:14 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-467-SB of 1998 -3- at 5 and 7 O'clock position. No pus or blood clot or any other foreign particle was present on and around the anus. No mark of external injury to body was present. PW-2 Om Wati, complainant mainly deposed the same facts as stated in her statement Ex.PD. PW-3 Suresh Kumar Sharma, Accountant, Municipal Committee mainly proved the birth certificate Ex.PE. PW-4 Head Constable Sat Pal Singh, PW-5 Head Constable Sita Ram and PW-6 Constable Mem Singh, are the formal witnesses, who tendered into evidence their affidavits Ex.PF, PG and PH respectively. PW-7 Constable Surinder Singh mainly deposed regarding delivering of Special Report to the Illaqa Magistrate. PW-8 Lachhman Singh, Lamberdar deposed that in the month of July at about 8.30 A.M, accused came to him and stated that he has committed a sin with a girl of about three years. He further deposed that accused told him that firstly he wanted to kidnap her but subsequently his intention changed and he committed sexual intercourse with that girl by taking behind the sheller of one Karam Chand. Accused requested him to produce him before the police as he was running from 5/7 days. He further deposed that he enquired about the Investigating Officer and then he produced the accused before ASI Bant Ram. PW-9 Mukesh Kumar, Draftsman mainly deposed regarding preparing of site plan Ex.PJ. PW-10 ASI Bant Ram, is the Investigating Officer. He mainly deposed regarding investigation conducted by him in the present case. PW-11 Dr.Pankaj Aggarwal proved MLR Ex.PQ of the accused and his endorsement Ex.PP/1 on the police application.
Gulati Vineet2013.09.10 10:14 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-467-SB of 1998 -4-
At the close of prosecution evidence, the accused- appellant was examined under Section 313 Cr.P.C. and he denied the correctness of the evidence and pleaded himself as innocent. He further pleaded that there was a dispute some transaction between him, Om Wati and her husband and on that account a false case has been got registered by Om Wati against him.
No witness was examined in defence.
On the basis of the evidence produced by the prosecution, accused-appellant was convicted and sentenced as stated above by the learned Addl. Sessions Judge, Kurukshetra.
At the time of arguments, learned counsel for the appellant argued that there is no evidence against the accused to prove the offence and he has been falsely implicated. He next argued that there is no eye witness to the occurrence and there is also no last seen evidence. Learned counsel for the appellant further contended that the only evidence as per PW-2 Om Wati, complainant is that the accused brought the girl back at about 12.00 midnight. He next argued that this conduct itself shows that appellant could not be an accused. Otherwise, why he would bring back the girl after committing the offence. He further contended that appellant was not apprehended on the spot. Learned counsel for the appellant next argued that minor child has not been examined in the court as PW. He further argued that the semen found on the underwear of the prosecutrix cannot be connected with the accused-appellant because the mother of the prosecutrix PW-2 has stated in chief-examination Gulati Vineet 2013.09.10 10:14 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-467-SB of 1998 -5- that she changed the clothes of the minor and clothes produced in the Court are not the same which prosecutrix was wearing at the time of occurrence. He next contended that witness regarding extra judicial confession cannot be believed. Learned counsel for the appellant, therefore, argued that there being merit in the appeal, the same should be allowed and appellant should be acquitted.
On the other hand, learned Deputy Advocate General, Haryana for the respondent-State argued that case of the prosecution has been duly proved by the PWs. PW-2 Om Wati has duly supported the case of the prosecution. He further contended that statement of PW-2 Om Wati is duly supported and corroborated by medical evidence and investigation of the case. Learned State Counsel, therefore, argued that there being no merit, the appeal should be dismissed.
I have gone through the record minutely and carefully and have heard learned counsel for the appellant as well as learned Deputy Advocate General, Haryana for the respondent-State.
From the evidence on record, I find merit in the arguments of the learned counsel for the appellant. No last seen evidence has been produced on the record by the prosecution. There is no eye witness in the present case. Nobody has seen the accused with the prosecutrix when she was taken away. Accused-appellant was not apprehended on the spot by the police along with the prosecutrix. The only evidence against the accused-appellant is that he brought the prosecutrix by carrying her on his shoulder at 12.00 midnight. Gulati Vineet 2013.09.10 10:14 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-467-SB of 1998 -6- Only from this evidence, it cannot be concluded that accused- appellant is the culprit and he has committed unnatural offence with the prosecutrix. If the accused-appellant would have been the culprit, then why he would bring back the prosecutrix to the complainant. In the present case, minor prosecutrix is stated to be of three years age but she has not been brought to the witness box. She could easily tell some of the facts in the Court but she has not been produced in the Court. PW-2 Om Wati, complainant has stated that Puran Halwai has seen one boy taking away the prosecutrix but this Puran Halwai has also not been examined in the Court to support the prosecution version. PW-2 Om Wati was confronted with her statement given in police station Ex.PD where these facts regarding Puran Halwai etc. were not found mentioned. Therefore, it also amounts to material improvement in the version of the complainant.
As regarding witness of the extra judicial confession, I find that PW-8 Lachhman Singh, Lamberdar has not told the name of the prosecutrix. He has also not told any fact that from where the minor child was kidnapped and whose daughter was that prosecutrix. A general statement has been made regarding extra judicial confession by this witness. In cross-examination this witness has stated that he knows father of the prosecutrix. He further stated that he did not visit police station. He stayed in his farm house. There is no evidence to show that why the accused-appellant would go to this witness to make extra judicial confession. The perusal of the statement of PW-8 Lachhman Singh does not repose confidence.
Gulati Vineet2013.09.10 10:14 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-467-SB of 1998 -7-
As regarding FSL report, I find that semen was found on the underwear of the prosecutrix but PW-2 Om Wati in chief- examination has stated that she has changed the clothes of the prosecutrix at the time of medico legal examination and clothes which were produced were not the same which the prosecutrix was wearing at the time of occurrence.
Therefore, from the above, I find that there is no cogent evidence on record to connect the accused-appellant with the crime. A reasonable doubt exists in the prosecution version and benefit of doubt is to go to the accused-appellant. Hence, giving benefit of doubt, the accused-appellant is acquitted of the charges framed against him. The judgment of conviction and order of sentence passed by learned Addl. Sessions Judge, Kurukshetra are set aside. Since, the appellant is on bail, his bail bond stand discharged.
Resultantly, the present appeal stands allowed.
(INDERJIT SINGH)
August 29, 2013 JUDGE
Vgulati
Gulati Vineet
2013.09.10 10:14
I attest to the accuracy and
integrity of this document
Chandigarh