Punjab-Haryana High Court
Madan Lal And Others vs State Of Haryana on 13 December, 2010
Author: A.N.Jindal
Bench: A.N.Jindal
Criminal Appeal No.1962-SB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1962-SB of 2002
Date of Decision : 13.12.2010
Madan Lal and others
...... Appellants
VERSUS
State of Haryana
...... Respondent
CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL
Present: Mr.Atul Lakhanpal, Senior Advocate,
with Mr.Vikrant Advocate,
for the appellants.
Mr.J.S.Rattu, Deputy Advocate General, Haryana,
for the respondent-State.
*****
A.N.JINDAL, J:
Krishan, Khem Chand, Nand Lal, sons of Pritam Singh and their cousin Madan Lal were tried for the offences under Sections 453, 323/34, 365/511 IPC and accused Khem Chand was also tried for the offence under Section 376 IPC. On trial vide judgment dated 22/26.11.2002, passed by the Addl. Sessions Judge, Hisar, they were convicted and sentenced as under:-
Offence Sentence
453 IPC R.I. for a period of one year and to pay a
fine of Rs.500/- each.
365/511 IPC R.I. for a period of 3½ years and to pay a
fine of Rs.2,000/- each.
323 IPC R.I. for a period of six months each.
Sito Devi, real niece of complainant Thakur Singh was married to the accused Nand Lal and a matrimonial dispute was going on between Criminal Appeal No.1962-SB of 2002 2 them which resulted into divorce.
The accused and the complainant Thakur Singh (herein referred as 'the complainant') are the residents of the same village i.e. Mangali and residing in the same vicinity. Complainant had two sons namely Kuldeep Singh and Lachhman. Kuldeep Singh is residing at Gurgaon with his uncle (brother of the complainant) whereas Lachhman is residing alongwith his wife Manglo Devi at village Mangali.
On 04.06.1997 at about 5:00 a.m., the complainant was lying on the cot whereas his daughter in law Manglo Devi was sweeping the house. On hearing the cries of Manglo Devi 'bachao bachao' when he went outside, he saw that all the accused were dragging her from the house with the intention to kidnap her in the jeep standing nearby. He intervened and saved her but Khema took out a Barchhi (spear) from the jeep and tried to inflict a blow on him but he caught hold of barchhi whereupon Nand Lal, Krishan and Madan took out the sticks from the jeep and inflicted injuries on his head. In the meantime, Khema, after leaving barchhi, brought a stick from the jeep and inflicted stick blows on both of his arms; Madan Lal inflicted a stick blow on his left leg while Krishan inflicted a stick blow on his right foot. Manglo Devi raised alarm which attracted his son Lachhman Singh and his brother Tara Chand. Nand Lal was having a pistol. The complainant had snatched the holster of the pistol, resultantly, the cartridges had fallen down which were picked up by Lachhman. Then the accused fled away saying that they would kidnap and kill her later.
On the aforesaid statement Ex.PD, FIR Ex.PD/2 was registered and the case was investigated. Scaled site plan Ex.PE and rough site plan Ex.PF were prepared; the holster of the pistol 38 bore and a naked photo of Criminal Appeal No.1962-SB of 2002 3 Manglo Devi Ex.PC were taken into possession vide recovery memo Ex.PG. The accused were arrested and on submission of the report under Section 173 Cr.P.C., the case was committed. Consequently, the accused were charged for the offences under Sections 453, 323/34 and 365/ 511 IPC.
However, lateron on the statement of Manglo Devi wherein she had levelled allegations of rape against accused Khem Chand, charged him under Section 376 IPC also.
In order to substantiate the charges, the prosecution examined Dr.R.J.Bishnoi (PW1), who while examining Thakur Singh, found seven injuries on his person and proved the MLR Ex.PA; Manglo Devi (PW2), wife of Lachhman Singh, who had allegedly been kidnapped by the accused and saved by the complainant; Thakur Singh (PW3) is the eye witness to the occurrence and Girish Kumar, Draftsman (PW4) has proved the scaled site plan Ex.PE of the place of occurrence.
When examined under Section 313 Cr.P.C., the accused denied all the allegations and pleaded their false implication in the case. No evidence was led in defence.
The trial resulted into conviction.
Learned counsel for the appellants, in order to prove the innocence of the accused, has assailed the judgment urging that neither Manglo Devi (PW2) nor Thakur Singh in their statements before the police have uttered a word about the allegations of rape prior to the day of main occurrence. The subsequent statements, made by them in the Court, are nothing but an afterthought with a motive to exaggerate the offence, in an anxiety to penalize the accused to the maximum. No medical evidence has been led by the prosecution that Manglo Devi (PW2) was ever raped by the Criminal Appeal No.1962-SB of 2002 4 accused. Even after Khem Chand was arrested he was also not got medically examined. The specific allegations were lodged against him that he obtained the nude photograph of Manglo Devi but neither the camera nor the photographs much less negatives were recovered from Khem Chand.
It has been further urged by the counsel that there is no evidence of house tresspass. Though, the allegations are that Manglo Devi was lifted by the accused but she was neither got medically examined nor she has stated having suffered any injuries during resistance. No recovery of the pistol was effected from the accused. Similarly, the complainant or Lachhman have not produced the cartridges which had come in their hands at the time of incident. It was also contended that since the parties were at a daggers drawn as the niece of Thakur Singh has been divorced by Nand Lal, therefore, there was no question for the accused to summon Manglo Devi, a mother of three children and rape her. Such allegations could be levelled by any lady to have the revenge.
To the contrary, Mr.J.S.Rattu, Deputy Advocate General, Haryana, has urged that though there is no evidence of rape on the record yet sufficient evidence has been led by the prosecution in order to prove that the accused came armed, tried to forcibly lift Manglo Devi in the jeep and in that process they caused injuries to the complainant Thakur Singh. However, she was saved with the timely intervention of complainant Thakur Singh (PW3). The FIR is prompt one, as such the judgment deserves to be upheld.
Having heard the rival contentions and having perused the records of the case, first of all, it would be appropriate to observe that the trial Court has rightly observed that Manglo Devi had levelled false Criminal Appeal No.1962-SB of 2002 5 allegations with regard to rape. Manglo Devi as well as the accused Khem Chand were not medically examined and no reasons were disclosed by Manglo Devi for not disclosing the act of rape forthwith particularly when she was a married lady and she could come out with such a version forthwith. She also did not disclose about this factum of rape at the time of lodging the FIR, even Thakur Singh in his statement under Section 161 Cr.P.C. also does not disclose about the said fact. Thus, the story with regard to rape, as unfolded by her only at the time of her statement in Court, is a complete deviation from the earlier version and amounts to material improvement. It may further be observed that no challenge has been made to the acquittal of the accused under Section 376 IPC. The trial Court, with regard to naked photograph of Manglo Devi, has observed that the same appears to have been got prepared by the complainant in order to implicate Khem Chand in the serious offence like rape. Here it may be observed that the said photograph was neither recovered from the accused nor it was disclosed by the husband of Manglo Devi as to how he came in possession of the same. Lachhman Singh, husband of Manglo Devi, has not been examined to explain the source of photograph. On examination of photograph Ex.PC, it transpires that it exposes all the private parts of Manglo Devi and the same appears to have been got prepared intentionally while exposing all her body parts. Had such photograph been taken by the accused Khem Chand then the same would have expressed some symptoms of fear, shyness or hesitation but the said photograph indicates no such expression, as such, it appears that the photograph was got prepared by the complainant and his son Lachhman Singh with a motive to implicate the accused in a serious case of rape.
Criminal Appeal No.1962-SB of 2002 6
Now coming to the offence under Section 453 IPC, it may be observed that not a word has been uttered by the complainant Thakur Singh that the accused ever entered his house to lift or kidnap Manglo Devi. His statement is only that when he went outside then he saw that the accused were dragging Manglo Devi towards the jeep. Even Manglo Devi has not stated that the accused had entered the house to kidnap her. The story appears to be concocted one. Occurrence is stated to have taken place on 04.06.1997 at 5:00 a.m. whereas FIR was lodged on the same day at 1:50 p.m. Manglo Devi, having been in fit state of mind on the day of occurrence, could easily disclose about the occurrence before the police and it has also come in evidence that there is a police post in the village Mangali. Under these circumstances, there could be no delay in recording the statement of Manglo Devi regarding the occurrence and no such explanation has been made by the prosecution in recording the statements of the witnesses after a pause of 8½ hours. Thus, this unexplained delay of 8 ½ hours takes this Court in the realm of doubt about the occurrence.
The other circumstance which creates a doubt in the mind of the Court is that when the accused came to the house of complainant in the jeep and tried to pick up Manglo Devi then she must have resisted and when she was being dragged she must have suffered injuries or the dragging marks over the body, her clothes must have been effected but the Investigating Officer neither got medically examined Manglo Devi nor her clothes were taken into possession.
Now coming to the oral testimonies of Manglo Devi (PW2) as well as complainant Thakur Singh (PW3), these two star witnesses appear to be liars and over jealous to implicate the accused in the case. Manglo Devi Criminal Appeal No.1962-SB of 2002 7 (PW2), being the mother of three children and belonging from a poor strata, appears to have no respect or regard for her modesty.
Having examined all the aspects of the case, this Court observes that Manglo Devi in order to bring the accused into the net of a serious offence punishable for heavy rigorous imprisonment got herself photographed in a nude position and tried to support the allegations of blackmailing, levelled by her against Khema. If she could go to this extent then her such testimony that the accused tried to lift her also cannot be believed. She has stated that on the day of occurrence, the accused Nand Lal had a pistol but the said pistol was not recovered by the police. The testimonies of these two witnesses that it was only Thakur Singh, who had saved Manglo Devi, also appears to be improbable. Had there been any truth in the allegations, as levelled by the prosecution then it is not probable that an old man of sixty years would be able to save Manglo Devi from the four accused, who were duly armed with Barchhi and sticks. The evidence further reveals that Lachhman and Tara Chand had also come there but the accused did not cause any injury to them which also improbablizes the prosecution version.
According to the medical evidence, Dr.R.J.Bishnoi (PW1) observed seven injuries on the person of complainant Thakur Singh (PW3). All injuries, except injury No.1 are on the non-vital part of his body. Injury No.1 appears to be superficial in nature as the doctor did not record depth of the said injury. As a matter of fact, Dr.R.J.Bishnoi (PW1) did not record the depth of any of the injuries, therefore, in the absence of depth of the injuries, the same could be said to be superficial. From the evidence of Dr.R.J.Bishnoi (PW1), it appears that Manglo Devi was not present at the Criminal Appeal No.1962-SB of 2002 8 time when injuries were suffered by Thakur Singh. He states during the cross-examination that injured was accompanied by his brother only. Had Manglo Devi been present then Dr.R.J.Bishnoi (PW1) would have mentioned about her name also. Dr.R.J.Bishnoi (PW1) further states that Thakur Singh did not disclose the name of assailants. Had the injuries been suffered by Thakur Singh at the hands of accused then there was no difficulty for him to disclose the names of assailants to the doctor if he had asked him about the same. Both the witnesses have also tried to conceal the motive. In the first statement made by Manglo Devi (PW2), she has admitted that Sito Devi, the niece of Thakur Singh was divorced by Nand Lal but Thakur Singh appears to have concealed everything and stated as under:-
"Sito Devi of Abu Sahar is not related to me. Again said she is married to Nandu. I do not know whether said Sito Devi was divorced or not. However, she does not reside with him."
None of the villagers or the persons from the vicinity have been examined. At the same time, even Lachhman Singh or Tara Chand, who had arrived at the time of occurrence, have also been withheld. The children of Manglo Devi, who were admittedly present in the house, have also not been examined to corroborate the prosecution version.
From the conjoint reading of the statements of witnesses, it transpires that the niece of Thakur Singh was married to Nand Lal, who was divorced, therefore, Thakur Singh and Tara Singh having developed annoyance against the accused, had concocted the false version in order to have the revenge from them. The trial Court has not appreciated the evidence in the right perspective. The aforesaid aspects were not discussed by it, therefore, interference at my end has become inevitable. Criminal Appeal No.1962-SB of 2002 9
Resultantly, this appeal is accepted; impugned judgment is set aside and the accused are acquitted of the charges framed against him. They are directed to be set at liberty forthwith. Bail bond and surety bond furnished by them stand discharged. Fine, if any deposited, be refunded.
(A.N.Jindal) Judge 13.12.2010 mamta-II