Punjab-Haryana High Court
Crl. Appeal No. 1496-Sb Of 2008 vs The State Of Punjab on 14 May, 2010
Crl. Appeal No. 1496-SB of 2008,Crl. Appeal
No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
1. Crl. Appeal No. 1496-SB of 2008
Date of decision. 14.05.2010
Priya wife of Lakha Singh r/o village Jethungal, P.S. Majitha, at
present r/o Kot Mit Singh Colony, Amritsar, at present Fateh Singh
Colony, Gali No. 16, Angarh Nagar, Asr.
....... Appellant
Versus
The State of Punjab
........ Respondent
2. Crl. Appeal No. 1650-SB of 2008
Date of decision. 14.05.2010
1. Charanjit Singh son of Maan Singh, r/o village Chak Bamu, Police
Station Dasuya, District Hoshiarpur.
2. Malkit Singh s/o Manjit Singh r/o Gali No. 4, House No. 4 Mohalla
Gobind Nagar, Sultanwind Road, Amritsar, District Amritsar.
....... Appellants
Versus
The State of Punjab
........ Respondent
and
3. Crl. Appeal No. 2008-SB of 2008
Date of decision. 14.05.2010
Surjit Singh alias Rohit son of Dalbir Singh, r/o Khandwala, Amritsar,
at present r/o village Mannawala, P.S. Jandiala, District Amritsar.
....... Appellant
Crl. Appeal No. 1496-SB of 2008,Crl. Appeal
No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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Versus
The State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. S.S. Majithia, Advocate
for the appellant
in Crl. Appeal No. 1496-SB of 2008.
Mr. S.S. Rangi, Advocate
for the appellants,
in Crl. Appeal No. 1650-SB of 2008.
Mr. Veneet Sharma, Advocate
for the appellant, in
Criminal Appeal No. 2008-SB of 2008.
Mr. T.S. Salana, DAG, Punjab,
for the respondent-State
in all the criminal appeals.
Sham Sunder, J.
This judgment shall dispose of Criminal Appeal No.1496-SB of 2008, filed by Priya, Crl. Appeal No. 1650-SB of 2008, filed by Charanjit Singh and Malkit Singh and Crl. Appeal No. 2008-SB of 2008, filed by Surjit Singh alias Rohit , accused (now appellants), are directed against the judgment of conviction, and the order of sentence dated 30.07.2008, rendered by the Court of Additional Sessions Judge, Amritsar, vide which it convicted and sentenced them as under:-
Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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Name of the The offence for which Sentence awarded accused conviction was (now appellants) recorded. Priya, Charanjit 366-A IPC Rigorous Imprisonment Singh,& Malkiat for 05 years each. Fine Singh of Rs.2000/- each.In default of payment of fine to undergo rigorous imprisonment for six months each. Surjit Singh @U/S. 376 IPC Rigorous Imprisonment for 07 years each. Fine Rohit, Charanjit of Rs.2500/-each.In default of payment of Singh,& Malkiat fine to undergo rigorous imprisonment for one Singh year each. Charanjit Singh, U/S. 363 IPC Rigorous Imprisonment & Malkiat Singh for 05 years each. Fine of Rs.2000/- each. In default of payment of fine to undergo rigorous imprisonment for six months each. Priya U/S. 3(1) of the Rigorous Imprisonment Immoral Traffic for 01 year. Fine of (Prevention) Rs.1000/-. In default of Act,1956 payment of fine to undergo rigorous imprisonment for three months. Priya U/S. 5(1) of the Rigorous Imprisonment Immoral Traffic for 03 years. Fine of
(Prevention) Act Rs.2000/-. In default of 1956 payment of fine to undergo rigorous imprisonment for six months.
Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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The substantive sentences of the accused were ordered to run concurrently.
2. The facts,in brief, are that, on 02.11.2006. Ravinderpal Singh, Sub Inspector, alongwith other Police officials was present in Sohian Khurd, for the purpose of patrol duty, where Joginder Singh son of Bachan Singh, r/o village Mudhal got his statement recorded, to the effect, that he was running a grocery( Kiryana) shop, in the village. He was having three children, out of whom two are his sons and one is daughter, the prosecutrix, aged about 14 years, (whose name is not being mentioned in view of the pronouncement of the Apex Court). She was studying in 8th standard in Senior Secondary School. His wife namely Kulwant Kaur died earlier. At the bus stand of village, Jatinder Sharma @ Ajay Sharma son of Ram Niwas, r/o Nawalgarh, District Jhunjunu, was running an Astrology shop by taking the same on rent. After the death of his wife, about three months ago, for the purity of his house, he got performed the Hawan, in his house from Pandit Jatinder Sharma. On that day, Shamsher Singh s/o Dula Singh, r/o village Mudhal, was also present in his house. Jatinder Sharma @ Ajay Sharma, at that time, was accompanying Sham Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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Lal, his maternal uncle son of Nand Dev. After that day, Jatinder Sharma, used to come to his house to purchase the grocery items as he was running his grocery shop in his house, where his entire family was living. Jatinder Sharma started coming to his house, even in his absence. On 15.10.2006 , Sham Lal, aforesaid came to his house, and asked him that Jatinder Sharma @ Ajay Sharma, was unmarried and he loved his daughter, the prosecutrix. He also told him that he would get his (Joginder Singh's) daughter, engaged with his nephew Jatinder Sharma. The complainant, told that he did not agree to such intercaste love relations. He refused to engage his daughter, the prosecutrix with Jatinder Sharma @ Ajay Sharma. Sham Lal went away in anger.
3. On 16.10.2006, at about 8 AM, when he (complainant) came back to his house, after answering the call of nature, Jatinder Sharma was talking to his daughter. He scolded Jatinder Sharma and told him that he should not come to his shop again. Jatinder Sharma, accused, however, replied that he will see him lateron, and then went away. On 17.10.2006, at about 8.30 AM, the prosecutrix went to the School and did not come back, till the evening. He started searching her. Shamsher Singh son of Rulda Ram, r/o Mudhal, Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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met him, at Bus Stand, Mudhal and he narrated the incident to him. Shamsher Singh replied that at about 4 PM on that date, outside the bus stop, on the road, near the theatre, the daughter of the complainant, Jatinder Sharma and Sham Lal, his maternal uncle were seen by him. He (Joginder Singh ) again started searching the prosecutrix , but could not trace her. The complainant stated that he was sure that his daughter was kidnapped with an intention to perform marriage with Jatinder Sharma. The statement of Joginder Singh, informant, was sent to the Police Station, leading to the registration of the First Information Report.
4. During the course of investigation, the prosecutrix was recovered and her statement was was recorded by the Judicial Magistrate Ist Class,on 06.12.2006,who stated therein,that Jatinder Sharma, continuously committed rape with her for 15 days. She also named Charanjit Singh and Malkiat Singh, accused, who committed rape with her. She also stated that Priya aunti, one of the accused, forced her to have sexual intercourse with the accused. The accused were arrested. After the completion of investigation, the accused were challaned.
5. On their appearance, in the Committing Court, the accused were supplied the copies of all the documents, relied Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 363, 366-A, and 376 of the Indian Penal Code, and 3(1) and 5 (1) of the Immoral Traffic (Prevention) Act, 1956 was framed against the accused, to which they pleaded not guilty, and claimed judicial trial.
6. The prosecution, in support of its case, examined Dr. Ram Singh, Medical Officer, CHC, Majitha, (PW-1), Manjit Singh, Head Constable,(PW-2), Manmohan Singh, Art Craft Teacher, Government High School, Mudhal, (PW-3), prosecutrix, (PW-4), Joginder Singh, complainant, (PW-5), father of the prosecutrix, Shamsher Singh, (PW-6), Dr. Amarbir Singh, Medical Officer, (PW-7), Dr. Seema Gupta, Medical Officer, Civil Hospital, (PW-8), Karunesh Kumar, Judicial Magistrate Ist Class, Amritsar, (PW-9), Avtar Singh, Head Constable, (PW-10), Preetinder Singh, Sub Inspector, (PW-11), Dr. Maninder Singh, Medical Officer, CHC, Majitha, (PW-12), Balbir Singh, DSP, (PW-13), Narinder Singh, DSP, (PW-14), and Ravinderpal Singh, Sub Inspector, (PW-15) Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence.
Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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7. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, did not lead any evidence, in their defence.
8. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.
9. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, have been filed by the appellants.
10. I have heard the Counsel for the parties, and have gone through the evidence and record, of the case, carefully.
11. The Counsel for the appellants, at the very outset, submitted that the prosecutrix and her father did not support the case of the prosecution, but the trial Court was merely swayed by the statement of the prosecutrix under Section 164 of the Code of Criminal Procedure, which was recorded by the Judicial Magistrate Ist Class, and which could be at the most be said to be her previous statement and acting upon the same convicted the accused. They further submitted that the Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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statement under Section 164 Cr.P.C. of the prosecutrix, which was recorded by the Judicial Magistrate Ist Class, could not be treated as a substantive evidence and could only be used for the purpose of contradicting or corroborating her. They further submitted that the trial Court fell into a grave error, in recording conviction, and awarding sentence, to the accused merely on the basis of statement under Section 164 Cr.P.C. of the prosecutrix, which did not constitute the substantive evidence. They further submitted that the judgment of conviction and the order of sentence, being illegal, are liable to be set aside.
12. On the other hand, the Counsel for the respondent- State, submitted that the trial Court could rely upon the statement of the prosecutrix, which was recorded, under Section 164 Cr.P.C., though the same did not constitute the substantive evidence. He further submitted that in her- examination in chief, the prosecutrix supported the case of the prosecution, but during the course of cross-examination, she did not support its case. He further submitted that the trial Court, after taking into consideration the entire evidence, on record, and the facts and circumstances, was right in coming to the conclusion that the accused committed the offences, with Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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which they were charged and rightly convicted and sentenced them. He further submitted that the judgment of conviction and the order of sentence, being legal and valid, are liable to be upheld.
13. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the appeals deserve to the accepted, for the reasons to be recorded hereinafter. The prosecutrix, who appeared as PW-4, no doubt, in her examination-in-chief, supported the case of the prosecution to some extent. However, when she was cross-examined, she in clear-cut-terms, stated that she did not know Charanjit Singh and Malkiat Singh earlier to the alleged occurrence. She further stated that she had not identified Charanjit Singh and Malkiat Singh in the Jail, as the persons, who committed rape with her. She further stated that she could not identify them there properly. Both these accused were also not identified by her, in the Court. She further stated that she could not tell, as to who was Charan Jit Singh and who was Malkiat Singh. She further stated that she did not make any complaint against Charanjit Singh and Malkiat Singh, who were stated to be the Police officials. She further stated in clear-cut-terms, in her cross-examination, that Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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she could not identify the persons, who committed rape with her. She further clarified that none of the persons, who committed rape with her, were present in the Court. She further stated that she did not know Surjit Singh, accused, till the date she appeared in the Court. She further stated that she named Surjit Singh, on the asking of the Police. She further stated that Surjit Singh, did not commit rape with her. She further stated that the lady accused, who was present, in the Court was not Priya. She further stated that she did not know Priya personally. She further stated that the Police had not tutored her to make statement in the Court. She further stated that she had no grievance against the accused, who were present in the Court. She denied that compromise had been effected. She also denied that she had been told by her Counsel that she should resile. Joginder Singh, (PW-5), father of the prosecutrix, and the first informant, stated that his daughter had left the house of her own and remained outside for about one month and thereafter she returned. The evidence of the witnesses, is required to be taken into consideration, as a whole, and not by tearing the same into pieces. It is only during the course of cross- examination, that the veracity of the witnesses can be shattered. No doubt in her statement under Section 164 Cr.P.C., the Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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prosecutrix named the accused as the perpetrators of crime. However, as stated above, the statement under Section 164 Cr.P.C., could only be said to be a previous statement, which does not constitute the substantive evidence and the same could only be used for the purpose of contradicting or corroborating the prosecutrix. Similar principle of law was laid down, in George v. State of Kerala, AIR 1998 (SC) 1376. Merely on the basis of statement under Section 164 Cr.P.C., of a witness, which could be said to be her previous statement, and does not constitute the substantive evidence, conviction of the accused, could not be recorded. It is not known as to how the trial Court forgot this fundamental principle of law, while recording conviction and awarding sentence, only on the basis of the statement of the prosecutrix, which was recorded under Section 164 Cr.P.C. In view of the statement of the prosecutrix, made by her as (PW-4) that the accused were not those persons, who kidnapped and committed rape with her, the evidence of the doctors and of the Investigating Officer, was hardly of any consequence. The evidence of the doctors and of the Investigating Officer could only furnish corroboration to the substantive evidence. This Court after careful and cautious scrutiny of the evidence, comes to the conclusion that the Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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prosecution miserably failed to prove that the accused committed the offences, punishable under Sections 363, 366- A, and 376 of the Indian Penal Code as also Sections 3(1) and 5(1) of the Immoral Traffic (Prevention) Act, 1956. The finding of the trial Court, to the contrary are liable to be reversed.
14. No other point, was urged, by the Counsel for the parties.
15. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court are not based on the correct appreciation of evidence, and law, on the point. The trial Court did not take into consideration the aforesaid infirmities and lacunae, in the prosecution evidence, and, thus, fell into a grave error in recording conviction and awarding sentence to the accused. The judgment of conviction and the order of sentence are, thus, liable to be set aside.
16. For the reasons recorded, hereinbefore, Criminal Appeal No. 1496-SB of 2008, filed by Priya, Crl. Appeal No. 1650-SB of 2008, filed by Charanjit Singh and Malkit Singh , and Crl. Appeal No. 2008-SB of 2008, filed by Surjit Singh alias Rohit, appellants, are accepted. The judgment of conviction, and the order of sentence dated 30.07.2008, are set aside. The Crl. Appeal No. 1496-SB of 2008,Crl. Appeal No. 1650-SB of 2008 & Crl. Appeal No. 2008-SB of 2008
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appellants shall stand acquitted of the charge, framed against them. If, they are on bail, they shall stand discharged of their bail bonds. If, they are in custody, they shall be set at liberty, at once, if not required in any other case.
17. The Chief Judicial Magistrate, shall comply with the judgment promptly.
14.5.2010 ( Sham Sunder ) dinesh Judge