Punjab-Haryana High Court
Joginder Singh And Others vs State Of Haryana on 25 March, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 222-DB of 2007
DATE OF DECISION : 25.03.2010
Joginder Singh and others
.... APPELLANTS
Versus
State of Haryana
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. T.S. Sangha, Senior Advocate, with
Mr. Ashok Bhardwaj, Mr. J.S. Lally and
Mr. H.S. Sangha, Advocates, for appellant No.2.
Mr. H.S. Sullar, Advocate, for appellants No.1 and 3.
Mr. S.S. Randhawa, Addl. A.G., Haryana.
***
SATISH KUMAR MITTAL , J.
1. Appellants Joginder Singh, Jai Bhagwan and Surinder Singh have directed this appeal against the judgment dated 31.1.2007, passed by the court of Additional Sessions Judge, Kaithal, whereby they have been convicted under Sections 366, 342, 376 (2) (g) and 506 read with Section 34 IPC; and against the order of sentence dated 3.2.2007, whereby they have been sentenced as under :
Under Section Sentence 366/34 IPC To undergo rigorous imprisonment for a period of five
years and to pay a fine of Rs. 5,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for a period of three months.
Crl. A. No. 222-DB of 2007 -2-342/34 IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for a period of one month.
376(2)(g)/34 IPC To undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for a period of three years.
506/34 IPC To undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 5,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for a period of three months.
All the fine levied upon the appellants was ordered to be given to Pooja and Ankit, the children of Anita, the prosecutrix, in the form of compensation in equal shares and the said amount was ordered to be deposited in any of the nationalized bank for the period till they attain the majority. All the sentences were ordered to run concurrently.
2. In the present case, all the three appellants were tried by the court of Additional Sessions Judge, Kaithal, for commission of the offences of abduction, illegal confinement and rape of Anita alias Sunita (hereinafter referred to as `the prosecutrix'), a married woman, aged about 25-26 years, having two children of the age of 7 years and 5 years. She was married to Mohinder Singh (DW.1), an agriculturist, about 11 years prior to the day of occurrence. Her husband and children were residing in village Serdha.
3. As per the prosecution version, on 21.4.2005, in the noon time, when the prosecutrix was going to her fields, then accused Joginder Singh, a resident of village Serdha, forcibly took her inside a Kotha existing in his Crl. A. No. 222-DB of 2007 -3- fields and committed rape on her against her wishes, giving threat to kill her son, in case she raised any noise. Thereafter, accused Surinder Singh, a resident of the same village, was pushed inside the Kotha of accused Joginder Singh. Then he also committed rape on the prosecutrix against her wishes. Thereafter, the prosecutrix was taken to Gurgaon in a vehicle. She was kept in a room as hostage, where accused Jai Bhagwan, a resident of village Dumarkhan, District Jind, owner of a transport company, who was residing at Gurgaon in connection with his work, committed rape on her against her consent. After two days, she was taken by the accused in another room in a Basti at Gurgaon, where all the three accused under the threat had regularly committed rape on her without her consent. They were not leaving the prosecutrix alone in that room. On 14.5.2005, members of her family, namely Pala Ram (PW.1), Nasib Singh (PW.2) and Ramesh (PW.3) reached in that Basti at Gurgaon in her search and on seeing them, all the three accused had left her and ran away from the spot. Then the aforesaid family members brought her to Rajound, where she made statement (Ex.PO) to ASI Raj Mal (PW.11), on the basis of which formal FIR (Ex.PO/2) was registered in Police Station Rajound against all the three accused.
4. It is to be mentioned here that after disappearance of the prosecutrix from the village on 21.4.2005, her husband Mohinder Singh lodged a missing report on 4.5.2005 with the police of Police Station Rajound, on the basis of which DDR No. 45 (Ex.PD) was recorded. In the said DDR, it was got recorded by Mohinder Singh that his wife Anita Crl. A. No. 222-DB of 2007 -4- (prosecutrix) aged about 25 years, having two children of the age of 7 years and 5 years, was missing since the morning of 21.4.2005. He enquired from the neighbourers, but they did not tell any thing about her. Then he also enquired from his in-laws, but she did not reach there. He stated that till the day of reporting the matter, he had searched her in his relations, but he could not find any clue about her, therefore, she may be traced. It is specifically mentioned here that in his report (Ex.PD), he did not raise any suspicion on any one.
5. On 14.5.2005, the prosecutrix was medico legally examined by Dr. Renu Chawla (PW.10). She did not find any mark of injury on the body of the prosecutrix. Vagina admitted two fingers easily. Two slides with secretion from posterior fornix were taken for semen analysis. The clothes worn by the prosecutrix were taken into possession and were sent for chemical examination. As per the FSL report (Ex.PN), no semen was detected on any of the clothes and the glass slides. However, in the opinion of the Doctor, the possibility of rape could not be ruled out. In cross- examination, she had stated that when the rape is forcibly committed on a woman without her consent, then there is possibility of abrasion and contusion on various parts of the body of the lady. She further stated that she had given the opinion that possibility of rape could not be ruled out, because the prosecutrix was a married lady.
6. After two days i.e. on 16.5.2005, statement of the prosecutrix under Section 164 Cr.P.C., was recorded by Smt. Bimlesh Tanwar (PW.16), Crl. A. No. 222-DB of 2007 -5- Additional Chief Judicial Magistrate, Kaithal, wherein she made the similar statement, as was made by her before the police on 14.5.2005.
7. During investigation, accused Joginder Singh was arrested on 20.5.2005. On 21.5.2005, during interrogation, he suffered disclosure statement (Ex.PH) and in pursuance of the same, he identified the places, where he along with his co-accused committed rape upon the prosecutrix. Accused Jai Bhagwan and Surinder Singh were arrested on 11.6.2005 and 2.8.2005, respectively. They also suffered their disclosure statements and identified the places, where they along with their co-accused committed rape upon the prosecutrix. All the three accused were got medico legally examined and in the opinion of the Doctor, there was nothing to suggest that the accused were incapable of performing sexual inter-course.
8. After completion of investigation, the challan was filed against all the three accused. Before the case could be committed to the court of Sessions, the prosecurix expired on 29.8.2005, due to heart problem (as stated by her husband Mohinder Singh DW.1). Thereafter, the case was committed to the court of Sessions. Charges under Sections 376 (g), 366, 342 and 506 read with section 34 IPC were framed against all the accused, to which they did not plead guilty and claimed trial.
9. In support of its case, the prosecution examined 17 witnesses.
10. PW.1 Pala Ram, PW.2 Nasib Singh and PW.3 Ramesh are relatives of the prosecutrix, who traced the prosecutrix in Gurgaon and rescued her and brought her to village Rajound. They did not support the Crl. A. No. 222-DB of 2007 -6- case of the prosecution. In the court, they stated that on 14.5.2005, they received a telephone message from one Rameshwar (maternal uncle of the husband of the prosecutrix) from village Chatter, to the effect that the prosecutrix was present in his house, as she had come from Beas Dera. On receiving the said information, all these three witnesses went to village Chatter in a car and brought the prosecutrix to their village. Thereafter, some villagers took her to the police station, where her signatures were obtained on some blank papers. These witnesses were declared hostile and were cross-examined. In cross-examination, they stated that they did not make statements (Ex.PA, Ex.PB and Ex.PC) to the police. They further stated that the prosecutrix was mentally disturbed since long and earlier also, due to that disease, she had left her house for two/three times. They also stated that accused Joginder Singh was running a Karyana shop in the village and accused Surinder Singh is also a resident of the village. They further stated that from 21.4.2005 to 14.5.2005, both these accused were seen by them in the village, many times.
11. PW.4 HC Rajbir Singh proved DDR No. 45 dated 4.5.2005 (Ex.PD) regarding the missing of the prosecutrix, lodged by her husband. PW.5 Lady Constable Sunita stated that the medical examination of the prosecutrix was conducted by Dr. Renu Chawla in her presence and the Doctor handed over to her one parcel of envelope, forwarding letter along with MLR and the sample seal. The Doctor also handed over to her one sealed parcel of the clothes and one parcel of slide sealed with the seal of Crl. A. No. 222-DB of 2007 -7- Doctor and one sample seal. The parcels were handed over by this witness to Raj Mal ASI, the Investigating Officer of the case. PW.6 Dilbag Singh Patwari is the formal witness, who prepared scaled site plan (Ex.PG) of the place of occurrence. PW.7 HC Rattan Singh is the attesting witness of the disclosure statement (Ex.PH) made by accused Joginder Singh and memos of identification (Ex.PJ and Ex.PK). PW.8 Dr. Ajit Pal Singh conducted medical examination of accused Jai Bhagwan and proved the MLR of accused Jai Bhagwan (Ex.PK/1). PW.9 Mohinder Singh Constable is the attesting witness to the disclosure statement (Ex.PL) made by accused Surinder Singh and the memo of identification (Ex.PL/1). PW.10 Dr. Renu Chawla conducted medical examination of the prosecutrix and proved the MLR of the prosecutrix (Ex.PM). PW.11 Raj Mal ASI is the Investigating Officer of the case. PW.12 Dr. Amarjit Singh conducted medical examination of accused Surinder Singh and proved the MLR of the said accused (Ex.PR). PW.13 EHC Dhoop Singh is the formal witness, who tendered into evidence his affidavit Ex.PS. PW.14 Mahabir Parshad ASI and PW.15 Rajinder Singh SI are also the Investigating Officers, who partly investigated the case. PW.16 Smt. Bimlesh Tanwar, Addl. Chief Judicial Magistrate, Kaithal, stated that on 16.5.2005, on an application (Ex.PCC) moved on behalf of the police, she recorded the statement of the prosecutrix under Section 164 Cr.P.C., (Ex.PDD). PW.17 Dr. Hambir Masoomdar stated that on an application (Ex.PY) moved by the police, he opined that the external genitalia of accused Joginder Singh were developed and other Crl. A. No. 222-DB of 2007 -8- sexual character was also developed. He further stated that there was no evidence to suggest that Joginder Singh was not capable of sexual intercourse.
12. In their statements recorded under Section 313 Cr.P.C., the accused denied all the allegations appearing against them in the prosecution evidence. They pleaded innocence and false implication in the case. In defence, they examined DW.1 Mohinder Singh, husband of the prosecutrix, who stated that the prosecutrix was his wife. She died on 29.8.2005 due to heart problem. She was mentally disturbed from the very beginning. On 21.4.2005, in the night at about 9.00 PM, she left the house due to mental problem. They searched her in their relations, but could not trace her. Thereafter, he lodged the missing report in Police Station Rajound. On 14.5.2005, they received telephonic information from village Chattar, where the maternal uncle of this witness was residing, that the prosecutrix was at his house. Thereafter, cousin of this witness went there and brought her back to his village. She was taken by the villagers to the Police Station, without his consent, as she was mentally disturbed.
13. The trial court, after considering the evidence available on record, primarily while relying upon the statement (Ex.PDD) of the prosecutrix made by her under Section 164 Cr.P.C., before the Judicial Magistrate, convicted and sentenced the appellants, as indicated above. It has been held by the trial court that the said statement of the prosecutrix is relevant and admissible, as a substantive evidence against the accused under Crl. A. No. 222-DB of 2007 -9- Section 33 of the Indian Evidence Act, 1872 (hereinafter referred to as `the Evidence Act'). While coming to the said conclusion, the trial court has relied upon the judgments of the Hon'ble Supreme Court in Sitaji v. Bijendernarain, AIR 1954 SC 601, State of Maharashtra v. Damu, AIR 2000 SC 1691 and PV Radhakrishna v. State of Karnataka, AIR 2003 SC 2895. The trial court found the statement of the prosecutrix made by her under Section 164 Cr.P.C., as wholly reliable and trust-worthy, as the same was made by her before her un-natural death, which according to the trial court had taken place under mysterious circumstances. It has been further observed that statement of the prosecutrix made under Section 164 Cr.P.C., before the Judicial Magistrate on 16.5.2005, is not only trust-worthy, but it stands on high pedestal as the same is having the evidentiary value of a dying declaration, because the said statement was her last statement before her death given in the court. Primarily, on the aforesaid reasoning, the trial court convicted and sentenced all the accused.
14. Shri T.S. Sangha, Senior Advocate, assisted by Shri Ashok Bhardwaj, Shri J.S. Lally, Shri H.S. Sangha, and Shri H.S. Sullar, Advocates, appearing on behalf of the appellants, argued that in the instant case, the trial court has committed grave illegality while convicting the appellants for the offences under Sections 366, 342, 376 (2) (g) and 506 read with Section 34 IPC, without there being any legal evidence against them. He argued that from the medical evidence led by the prosecution, neither it is established beyond a reasonable doubt that all the three accused Crl. A. No. 222-DB of 2007 -10- forcibly committed repeated rape on the prosecutrix nor the semen of the accused was noticed on the clothes. He further argued that none of the family members or relatives or even husband of the prosecutrix has supported the prosecution case. According to them, due to the mental problem, the prosecutrix left the house on 21.4.2005 and in this regard, a missing report was lodged by her husband on 4.5.2005. Subsequently, on 14.5.2005, they received information that the prosecutrix had reached the house of the maternal uncle of her husband at village Chattar, from where they brought her back to the village. PW.1 Pala Ram, PW.2 Nasib Singh, PW.3 Ramesh and DW.1 Mohinder Singh categorically stated that the prosecutrix did not tell them that she was illegally abducted by the accused or was raped by them. They further categorically stated that accused Joginder Singh and Surinder Singh, who are residents of village Serdha, were seen in the village from 21.4.2005 to 14.5.2005. Thus, except the statement of the prosecutrix under Section 164 Cr.P.C., made by her on 16.5.2005 before the Judicial Magistrate, there is no evidence, which connects the accused with the commission of the crime. Learned counsel, while referring to the various judicial precedents, vehemently argued that the said statement of the prosecutrix under Section 164 Cr.P.C., is not a substantive piece of evidence, on the basis of which conviction of the accused for the alleged serious offences can be recorded and upheld. Learned counsel argued that the said statement of the prosecutrix is not relevant and does not have any evidentiary value either under Section 33 or Crl. A. No. 222-DB of 2007 -11- Section 32 of the Evidence Act, and the learned trial court has gravely erred in law while taking the said statement as a substantive evidence against the accused. Learned counsel argued that conviction of the appellants without there being any evidence is nothing but a moral conviction, by taking sympathy on the ground that after about four months of the occurrence, the prosecutrix died an un-natural death in mysterious circumstances, though there is no such evidence or even allegation on the record. Learned counsel argued that a moral conviction regarding the guilt of an accused has no place in the criminal jurisprudence. An order of conviction can be based only on legal evidence and not on hypothetical propositions or unwarranted inferences. According to him, suppositions cannot take the place of legal proof in a criminal trial, therefore, in the instant case, conviction of the appellants and the sentence awarded to them by the trial court is wholly illegal and unsustainable.
15. On the other hand, Shri S.S. Randhawa, learned Additional Advocate General, Haryana, appearing for the State of Haryana, vehemently argued the case in support of the prosecution on the same reasoning, as given by the trial court, while convicting the appellants. However, he could not dispute that the judgments relied upon by the trial court are not applicable to the facts and circumstances of the case.
16. We have considered the various submissions made by learned counsel for the parties and perused the record of the case.
17. From the evidence led in this case, it has been established that Crl. A. No. 222-DB of 2007 -12- the prosecutrix, who was a married woman having two children, aged about 7 years and 5 years, went missing from the village since the morning of 21.4.2005. No body had seen her going out of the village with any of the accused. From the said day, she was searched by her husband Mohinder Singh (DW.1) and other family members in the village Serdha, and also in the villages of her parents and other relatives. When she could not be traced, on 4.5.2005, a missing report vide DDR No. 45 (Ex.PD) was lodged by her husband Mohinder Singh at Police Station Rajound, wherein it was stated by him that his wife (prosecutrix) was missing from the house since the morning of 21.4.2005. On enquiry from neighbourers, her parents and other relatives, she could not be traced. No clue with regard to her disappearance was found, therefore, she may be traced. In the said report, the husband did not raise any suspicion on any one, regarding the disappearance or missing of his wife.
18. On 14.5.2005, the prosecutrix was found in Gurgaon. She was brought back to the village by her relatives, namely PW.1 Pala Ram, PW.2 Nasib Singh and PW.3 Ramesh. Then her statement (Ex.PO) was recorded by ASI Raj Mal (PW.11), on the basis of which formal FIR (Ex.PO/2) was registered against all the accused. In that statement, the prosecutrix stated that she was abducted by accused Joginder Singh from the village; he and Surinder Singh committed rape on her without her consent. Thereafter, she was illegally confined in a room at Gurgaon, where all the three accused committed rape on her without her consent. On 14.5.2005, her aforesaid Crl. A. No. 222-DB of 2007 -13- family members reached at Gurgaon in her search and on seeing them, all the accused left her and ran away. Then her family members brought her to the village. On 14.5.2005 itself, the prosecutrix was medico legally examined by Dr. Renu Chawla (PW.10). No mark of injury was found on her body. Her vagina admitted two fingers easily. Doctor gave the opinion that possibility of committing rape on her could not be ruled out. However, in cross-examination, she stated that she had given the said opinion because the prosecutrix was a married lady. Therefore, the medical evidence does not clearly indicate that the forcible repeated rape was committed on the prosecutrix without her consent. The link evidence led by the prosecution to establish that the repeated rape was committed by the accused on the prosecutrix also does not help the prosecution, because as per the FSL report (Ex.PN), no semen was detected on any of the clothes of the prosecutrix as well as the glass slides of the vagina swab taken by the Doctor during the medical examination.
19. The prosecution version, about abduction, illegal confinement and committing of rape under threat, is based upon the statement of the prosecutrix, which she had made before the police on 14.5.2005 and was reiterated by her before the Judicial Magistrate on 16.5.2005, when her statement under Section 164 Cr.P.C. was recorded. It has come on record that the prosecutrix died on 29.8.2005, before she could be examined in court. In order to prove the above said version, the prosecution has examined three material witnesses, namely Pala Ram (PW.1), Nasib Singh Crl. A. No. 222-DB of 2007 -14- (PW.2) and Ramesh (PW.3). According to the version of the prosecutrix, these persons came to Gurgaon in her search. On seeing them, the accused ran away from the spot. Thereafter, these persons brought her to the village. None of these three witnesses supported the prosecution version. According to them, on 14.5.2005, they received a telephonic message from maternal uncle of the husband of the prosecutrix from village Chatter, to the effect that the prosecutrix was present in her house, as she had come from Beas Dera. On receiving the said information, they went to village Chatter and brought the prosecutrix to the village. None of these three witnesses had stated that they had rescued the prosecutrix from the clutches of the accused or on seeing them, the accused had run away from the spot, where the prosecutrix was kept confined. Except these three witnesses, the prosecution did not examine any other witness to prove that the prosecutrix was abducted from the village by the accused and was illegally kept confined at Gurgaon, where repeated rape was committed on her without her consent, or that during the period from 21.4.2005 to 14.5.2005, she was seen in the company of the accused. All the aforesaid three witnesses were declared hostile and were cross examined by the prosecution. In their cross- examination, they have categorically stated that they did not make statements (Ex.PA, Ex.PB and Ex.PC) to the police. They further stated that the prosecutrix was mentally disturbed since long and on earlier occasion also, she had left the house for two/three times. These witnesses have further stated that from 21.4.2005 to 14.5.2005, accused Joginder Singh and Crl. A. No. 222-DB of 2007 -15- Surinder Singh, who are residents of village Serdha, were seen in the village many times. They further stated that the prosecutrix did not tell them that any rape was committed on her by the accused in her village or she was illegally confined at Gurgaon by them, where they had committed rape on her. In addition to the statements made by these three witnesses in the court, it is pertinent to mention that Mohinder Singh, the husband of the prosecutrix, who lodged the missing report on 4.5.2005, appeared in the court as a defence witness for deposing against the prosecution case. According to him, his wife was mentally disturbed. On 21.4.2005, she left the house due to mental problem. He further stated that when she could not be traced, a missing report was lodged by him. He further stated that subsequently, on 14.5.2005, they received telephonic information from village Chattar that the prosecutrix was at the house of his maternal uncle. Thereafter, his cousin went there and brought the prosecutrix back to the village. He further stated that some villagers had taken the prosecutrix to the Police Station, where she made the aforesaid statement without his knowledge.
20. Thus, in our opinion, the aforesaid evidence led by the prosecution does not prove beyond a reasonable doubt that the accused had committed rape on the prosecutrix in a kotha of the village, and then abducted her from the village, and thereafter she was taken to Gurgaon and was kept in illegal confinement, where she was repeatedly raped by the accused under a threat to kill her. However, perusal of the judgment of the Crl. A. No. 222-DB of 2007 -16- trial court reveals that all the accused have been convicted for the alleged offences only on the basis of the statement (Ex.PDD) made by the prosecutrix under Section 164 Cr.P.C., before the Judicial Magistrate on 16.5.2005. The trial court has observed that during the pendency of the case, the prosecutrix had died an un-natural death under mysterious circumstances, therefore, her statement under Section 164 Cr.P.C., can be taken as a substantive evidence against the accused, not only under Section 33 of the Evidence Act being a statement made by her in judicial proceedings, but also under Section 32 of the Evidence Act as her dying declaration. In this regard, the trial court has observed as under :
"14. ... Prosecutrix Anita had died under mysterious circumstances on 29.8.2005 after the incident of gang rape committed on her person by all the accused. Now, her presence cannot be procured in the Court because she has died. Her statement before Judicial Magistrate/ACJM, Kaithal is admissible as per the landmark authorities laid down by Hon'ble Supreme Court in case State of Maharashtra versus Damu, AIR 2000 SC 1691 in which it has been held that under section 164 Cr.P.C statement given before Judicial Magistrate is per se admissible and is mandatory having no exception. This view finds further corroboration and support from another landmark authority laid down in case of Sawmin versus State, 1939 RAN 96 in which it has been held that statement under section 164 Cr.P.C is relevant and admissible in evidence. This view further finds fortification from another landmark authority laid down in case Lekal versus Crown ILR (1927-8) Lahore 57 in which it has been held that statement of witness taken Crl. A. No. 222-DB of 2007 -17- before Magistrate is admissible in evidence, at subsequent stage, if the witness is dead at that time. There was no previous enmity of prosecutrix Anita whatsoever with accused. Immediately after when she was brought back on 14.5.2005 after her wrongful confinement by the accused in Gurgaon w.e.f. 21.4.2005 to 14.5.2005, the next following day 16.5.2005 she has given the statement before the learned Additional Chief Judicial Magistrate, Kaithal in which she has narrated the entire incidents of her repeated gang rape committed by all the accused namely Joginder, Surinder @ Sinda and Jai Bhagwan.
15. Statement of Anita prosecutrix under section 164 of Cr.P.C is cogent, consistent and coherent. As such, statement of Anita under section 164 of Cr.P.C carries a great evidentiary value and no independent corroboration is required because the rule requiring corroboration in such case when the aforesaid circumstance is merely a rule of prudence. For this reliance can be placed on the authority laid down by Hon'ble Supreme Court in case PV Radhakrishna versus State of Karnataka AIR 2003 Supreme Court 2895.
xxx
18. In the present case, after being gang raped by all the three accused, namely, Joginder, Surinder @ Sinda and Jai Bhagwan, prosecutrix Anita died of an un-natural death till mysterious circumstances on 29.8.2005 and in these circumstances, statement given by her under section 164 Cr.P.C before learned Additional Chief Judicial Magistrate, Kaithal stands on a much higher footing and on a high pedestal as is the evidentiary value of a dying declaration because this statement under section 164 Cr.P.C was her last statement Crl. A. No. 222-DB of 2007 -18- before her death given in the Court before Smt. Bimlesh Tanwar, the learned Additional Chief Judicial Magistrate, Kaithal."
The trial court, while finding the said statement of the prosecutrix as trust- worthy, convicted the appellants for the alleged offences, solely on the basis of the statement of the prosecutrix recorded by the Judicial Magistrate under Section 164 Cr.P.C.
21. Before we discuss the relevancy of the said statement of the prosecutrix as substantive evidence against the accused, we found that the finding recorded by the trial court, to the effect that on 29.8.2005, the prosecutrix had died an un-natural death under mysterious circumstances, is wholly without any evidence and is based on conjectures. The prosecution did not lead any evidence to show the cause of death of the prosecutrix. DW.1 Mohinder Singh in his statement had stated that the prosecutrix had died on 29.8.2005 due to heart problem. There is absolutely no evidence on record to show that the deceased had died an un-natural death under mysterious circumstances. According to the evidence available on record, she has died due to heart problem. Therefore, in absence of any evidence, it cannot be held at all that the deceased had died an un-natural death under the mysterious circumstances. Rather, as per evidence on record, she died a natural death due to heart problem.
22. Now the question for consideration is whether the statement made by the prosecutrix under Section 164 Cr.P.C., more than three months Crl. A. No. 222-DB of 2007 -19- before her death, is a substantive piece of evidence and is admissible against the accused under Section 33 of the Evidence Act. Section 33 of the Evidence Act reads as under :
"33. Relevancy of certain evidence for proving, in subsequent proceedings, the truth of facts therein stated - Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable :
Provided -
that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in the second proceeding."
A bare perusal of the aforesaid provision reveals that this section makes relevant certain evidence for proving, in subsequent proceeding, the truth of facts stated therein. According to this section, evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be Crl. A. No. 222-DB of 2007 -20- found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. The use of the evidence, conceived by Section 33 of the Evidence Act, is, however, subject to the following three provisos, namely (a) that the proceeding was between the same parties or their representatives in interest; (b) that the adverse party in the first proceeding had the right and opportunity to cross-examine, and (c) that the questions in issue were substantially the same in the first as in the second proceeding. In other words, the evidence of a person (1) who is dead, or (2) cannot be found, or (3) is incapable of giving evidence, or (4) is kept out of the way by the adverse party, or (5) whose attendance cannot be procured without an amount of delay or expense, which the Court considers unreasonable is relevant under Section 33 of the Evidence Act. Such evidence must have, however, been given (i) in a judicial proceeding, or (ii) before any person authorised by law to take such evidence. Moreover, the evidence so tendered earlier by the persons enumerated above is admissible (1) in an entirely new judicial proceeding, or (2) in a subsequent stage of the same proceeding. But in order to admit the evidence as aforesaid (a) the previous statement must have been recorded between the same parties or their representatives in-interest, (2) the adversary must had a right and opportunity to cross-examine that witness, and (3) the points at issue in the two proceedings, present and past, must be substantially the same. The Crl. A. No. 222-DB of 2007 -21- adversary must have had a right and opportunity to cross-examine the witness. In short, one of the prime requisites for making a statement admissible in evidence by taking recourse to Section 33 of the Evidence Act is that the adversary must have had a right and opportunity to cross-examine the witness, whose statement is sought to be admitted into evidence.
23. Undisputedly, in the present case, when statement of the prosecutrix under Section 164 Cr.P.C. was recorded by the Judicial Magistrate on 16.5.2005, neither the accused were entitled to cross-examine the prosecutrix nor as a fact, an opportunity was provided to the accused to cross-examine her. Therefore, in our view, the statement made by the prosecutrix before her death under Section 164 Cr.P.C., which was not subject to cross-examination by the accused, is neither relevant nor admissible in evidence against the accused. It is settled law that the statement of a witness under Section 164 Cr.P.C is not a substantive evidence and it can be used only to corroborate or contradict that witness, as has been held by the Hon'ble Supreme Court in State of Delhi v. Shri Ram Lohia, 1960 Criminal Law Journal 679. In this regard, the Hon'ble Supreme Court held as under :
"13. ... This inference finds support from the fact that in his statement under S. 164, Criminal Procedure Code, made on 20th Crl. A. No. 222-DB of 2007 -22- October, 1951, he stated that he was still in the employment of Messrs. Iron and Hardware (India) Company, while has now asserted in Court that he had been already dismissed by Sri Ram accused because of Sri Ram's differences with Tara Chand accused". It is clear therefore that the learned Judge relied on some statement of Aggarwal recorded under S. 164 of Criminal Procedure Code. The statement under S. 164 referred to was not specifically put to Aggarwal even to contradict him. Statements recorded under S. 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under S. 164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive evidence in the case."
The relevancy and admissibility of a statement made by a witness in the previous proceeding and its relevancy in the subsequent proceeding, when the said witness is not available due to his death, was considered in detail by the Hon'ble Supreme Court in Mulkh Raj Sikka v. Delhi Administration, 1974 Criminal Law Journal 1171. The said case was pertaining to the incident prior to 1973 and was governed by the provisions of the Code of Criminal Procedure, 1908. Before the new Code, at the committal stage, the prosecution evidence was being recorded by the Magistrate. In that case, a witness was examined by the prosecution in support of its version before the committing Magistrate and the opportunity was given to counsel for the accused to cross-examine him, but the defence counsel, instead of cross- examining him, reserved his right to cross-examine the witness before the Crl. A. No. 222-DB of 2007 -23- Sessions Court. In that situation, the Hon'ble Supreme Court had held that the previous statement made by the witness before the committing Magistrate was relevant and admissible in evidence in the subsequent proceeding, when the said witness could not be produced due to his death, because the adverse party was having both the right and the opportunity to cross-examine him. In this regard, the following observations were made :
24. Counsel is right that as stated in Dal Bahadur Singh v. Bijali Bahadur Singh, AIR 1930 PC 79, the true reading of Section 33 of the Evidence Act is that the adverse party must have had both the right and the opportunity of cross-examining. Mere opportunity without the right of cross-examination cannot bring the case within the terms of Section 33. But Sections 207 and 207A of the Criminal Procedure Code show that the accused has the right to cross-examine the witnesses examined by the prosecution in the committing court. Section 207 (a) provides that in every inquiry before a Magistrate where the case is triable exclusively by a Court of Session etc. the Magistrate shall in any proceeding instituted on a police report, follow the procedure specified in Section 207A. Section 207A (4) provides that the Magistrate shall take the evidence of such persons as may be produced by the prosecution as witnesses to the actual-commission of the offence alleged. Sub-section (5) of Section 207A provides : "The accused shall be at liberty to cross-examine the witnesses examined under Sub-section (4)". Thus the appellant had the right to cross-examine Dhan Bahadur but his counsel, as is usually done, preferred not to cross-examine the witness at that stage and reserved the cross- examination for the Sessions Court."
Crl. A. No. 222-DB of 2007 -24-
24. In Sashi Jena and others v. Khadal Swain and another, 2004 Criminal Law Journal 1394, the Hon'ble Supreme Court had considered the relevancy of the statement made by the solitary prosecution witness during the course of enquiry under Section 202 Cr.P.C., when subsequently after making the statement he had died. On the above said principle, it was held that such statement is not admissible under Section 33 of the Evidence Act before the trial court in the subsequent proceeding, as the accused was not having any right and opportunity to cross-examine the said witness, and conviction on the basis of such statement cannot be sustained. In this regard, the Hon'ble Supreme Court observed as under :
"From a bare perusal of S. 33 of Evidence Act it would appear that evidence given by a witness in a judicial proceeding or before any person authorized to take it is admissible for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states in its evidence given in earlier judicial proceeding or earlier stage of the same judicial proceeding, but under proviso there are three pre-requisites for making the said evidence admissible in subsequent proceeding or later stage of the same proceeding and they are (i) that the earlier proceeding was between the same parties; (ii) that the adverse party in the first proceeding had the right and opportunity to cross- examine; and (iii) that the questions in issue in both the proceedings were substantially the same, and in the absence of any of the three pre-requisites aforestated, Section 33 of the Act would not be attracted. The question then arises for consideration as to whether accused has any right to cross-Crl. A. No. 222-DB of 2007 -25-
examine a prosecution witness examined during the course of inquiry under Section 202 of the Criminal Procedure Code. It is well settled that the scope of inquiry under Section 202 of the Code is very limited once and that is to find out whether there are sufficient grounds for proceeding against the accused who has no right to participate therein much less a right to cross- examine any witness examined by the prosecution, but he may remain present only with a view to be informed of what is going on. As during the course of inquiry under Section 202 of the Code an accused has no right much less opportunity to cross-examine a prosecution witness, statement of such a witness recorded during the course of the inquiry is not admissible in evidence under Section 33 of the Act, and consequently, the same cannot form the basis of conviction of an accused."
In this judgment, one more question was considered and answered, as to whether such a statement made by a witness without there being any right and opportunity by the adverse party to cross-examine the witness can be used under Section 157 of the Evidence Act to corroborate the evidence of other witnesses. In this regard, it was held as under :
"11. ... Language of Section 157 of the Act is very clear and the same lays down that "in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact may be proved". A plain reading of the Section would show that previous statement of a particular witness can be used to corroborate only his own evidence during trial and not Crl. A. No. 222-DB of 2007 -26- evidence of other witnesses. In the case of Moti Singh & Anr. v. The State of Uttar Pradesh, AIR 1964 SC 900, similar question had arisen before a 4-Judge Bench of this Court wherein though the evidence in Court of two witnesses, namely, Ram Shankar and Jageshwar, during trial was disbelieved in relation to the manner of occurrence by the trial Court as well as the High Court, their statements made before a Magistrate under Section 164 of the Code were relied upon to corroborate the other evidence adduced by the prosecution during trial. The aforesaid procedure was deprecated by this Court and it was laid down that such previous statement could be used to corroborate the evidence of that very witness examined during the course of trial and not evidence of other witnesses examined before the trial Court."
Thus, from the aforesaid legal position, it is clear that statement of the prosecutrix made under Section 164 Cr.P.C., on 16.5.2005, before her death, is neither relevant nor admissible in evidence against the accused. The said statement is not relevant even to corroborate the other prosecution witnesses or the evidence. In the instant case, it is not the position. The accused were neither having any right to cross-examine the prosecutrix, when her statement under Section 164 Cr.P.C. was recorded, nor as a fact any opportunity was given to them to cross-examine her at that time. Thus for non fulfillment of this condition precedent alone, it is sufficient to hold that a statement of a witness recorded under Section 164 Cr.P.C., is not a statement which can be admitted into evidence at the trial under Section 33 of the Evidence Act.
Crl. A. No. 222-DB of 2007 -27-
25. In addition to the statement of the prosecutrix made by her on 16.5.2005 under Section 164 Cr.P.C., there is another statement made by her on 14.5.2005 under Section 161 Cr.P.C.. It is well established proposition that the statement of a witness recorded under Section 161 Cr.P.C., which is neither on oath nor bears signatures of the witnesses, cannot be used even for corroboration of the testimony of the said witness in the court. The said statement can only be used to contradict the statement, which he makes before the court. Only a statement made by the complainant or a witness under Section 154 Cr.P.C., can be used for corroboration, because such statement is signed by the witness. It is not the case here. In the judgments, which have been relied upon by the trial court i.e. State of Maharashtra versus Damu, AIR 2000 SC 1691, Sawmin versus State, 1939 RAN 96, Lekal versus Crown ILR (1927-8) Lahore 57 and PV Radhakrishna versus State of Karnataka AIR 2003 Supreme Court 2895, admissibility of the statement of a witness recorded under Section 164 Cr.P.C. before her death, by taking recourse to Section 33 of the Evidence Act, was not under consideration. Therefore, those judgments are not applicable to the facts and circumstances of the case.
26. Now the question arising for consideration is as to whether the aforesaid statement made by the prosecutrix on 16.5.2005 under Section 164 Cr.P.C., before her death, can be used as dying declaration against the accused under Section 32 of the Evidence Act. The trial court has observed that this piece of evidence is relevant and admissible against the accused as Crl. A. No. 222-DB of 2007 -28- dying declaration. Section 32 of the Evidence Act provides that statements of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are relevant, in case when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. In P.V. Radhakrishna v. State of Karnataka, AIR 2003 Supreme Court 2859, the Hon'ble Supreme Court held that statement of a person can be used as relevant and admissible evidence if the said statement pertains to the cause of his death or as to the circumstances of the prosecutrix resulting in his death. Before relying upon such statement, the court has to satisfy that the deceased was in fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, it can base its conviction without any further corroboration. But in the instant case, the issue involved is not about the cause of death of the deceased. The statement made by the prosecutrix before the Judicial Magistrate was not relating to the cause of her death and the circumstances under which she had died subsequently. There is no evidence on record that due to the excessive rape committed upon the prosecutrix by the accused during the period of her illegal confinement, she died later on. There is no post mortem report of the deceased, which reveals Crl. A. No. 222-DB of 2007 -29- cause of her death. Her husband Mohinder Singh (DW.1) and three relatives, who appeared as PW.1, PW.2 and PW.3, specifically stated that she died due to heart problem. In these circumstances, the statement made by the prosecutrix regarding her abduction, illegal confinement and commission of rape, is not relevant and admissible as dying declaration and cannot be used against the accused, on the principle incorporated in Section 32 of the Evidence Act. Thus, in our opinion, there is no legal evidence available on the record, on the basis of which all the accused could have been convicted for the alleged offences.
27. From the reading of the judgment of the trial court, it appears that while taking a sympathetic view on account of the fact that no prosecution witness has supported the prosecution version and the fact that the prosecutrix died later on, the trial court has ordered the moral conviction of the accused, without there being any legal evidence. A moral conviction regarding the guilt of an individual has no place in criminal jurisprudence. A court of law is to get at the truth from the legal evidence placed before it by either side and is not to be guided by a moral conviction or influenced by the gravity of the crime. An order of conviction can be passed only on legal evidence and not on hypothetical propositions or unwarranted inferences. Surmises and suppositions cannot take the place of legal proof in a criminal trial, and suspicion, however grave, cannot sustain a criminal charge. In absence of any legal evidence and proof, there can be no legal criminality. Thus, in our opinion, the judgment of the trial court convicting all the Crl. A. No. 222-DB of 2007 -30- accused for commission of the offences of abduction, illegal confinement and rape, is not sustainable.
28. In view of the above, the appeal is allowed; the impugned judgment of conviction and order of sentence is set aside and the appellants are acquitted of the charges. The appellants, who are in custody, be set at liberty forthwith, if not required in any other case.
( SATISH KUMAR MITTAL )
JUDGE
March 25, 2010 ( JORA SINGH )
ndj JUDGE
Refer to Reporter