Punjab-Haryana High Court
Radha Mahant & Others vs State Of Punjab & Another on 4 September, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Misc. No.M-26394 of 2010 (O&M) ..1..
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.M-26394 of 2010 (O&M)
Date of Decision : September 4,2012
Radha Mahant & Others
...Petitioners
Versus
State of Punjab & another
...Respondents
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.K.S.Boparai, Advocate, for the petitioners.
Mr.Shilesh Gupta, Additional Advocate General,Punjab.
Mr.S.K.Paruthi, Advocate, for respondent No.2.
***
Naresh Kumar Sanghi, J.
Prayer in this petition is for quashing of order dated 12.06.2009 (Annexure P-6) vide which the petitioners were summoned as additional accused in terms of Section 319, Cr.P.C for committing the offences punishable under Sections 148, 326, 328 and 377, read with Section 149, IPC. Prayer has also been made for quashing of the order dated 22.07.2010 (Annexure P-
14) whereby the petitioners were ordered to be charge-sheeted for the offences punishable under Sections 148, 326, 328 and 377, read with Section 149, IPC.
The brief facts of the case are that respondent No.2- Niki Sharma, aged about 18 years, was resident of Haridwar, Uttrakand. Being annoyed with his parents, he came to Ludhiana and started residing at 'Monu Di Dairy' at Ludhiana. He met Radha Mahant Eunuch (petitioner No.1) who associated him (respondent No.2) as a dancer. Goldy Mahant, Parveen Mahant, Criminal Misc. No.M-26394 of 2010 (O&M) ..2..
Mangat Ram and Renu Mahant (petitioner Nos.2 to 5) were also residing with Radha Mahant (petitioner No.1). On 18.09.2008 at about 10.45 p.m, when Niki Sharma along with the petitioners and others was sitting in the house of Radha Mahant, he sought permission from Radha Mahant to go to his house. Radha Mahant (petitioner No.1) administered some poisonous substance in the tea to the complainant-Niki Sharma, resultantly, he became semi-conscious. At that time, Goldy Mahant and Mangat Ram were taking liquor. Both of them committed carnal intercourse against the order of nature with Niki Sharma. Thereafter, all the petitioners along with their co-accused in connivance with each other emasculated (cut the penis) of Niki Sharma. When he regained consciousness, he found himself on Ferozepur road in the area of Ludhiana, and then he was admitted by a passerby in the Civil Hospital where he was treated upon. The police reached there and recorded his statement, on the basis of which, FIR No.94 dated 20.09.2008, under Sections 148,326, 328 and 377, read with Section 149, IPC was registered at Police Station, Division No.8, Ludhiana.
After investigation, the charge-sheet was filed against Om Parkash and Mohinder Nath. The charges were framed against them and thereafter, the case was fixed for recording of the prosecution evidence. Respondent No.2-complainant-Niki Sharma appeared as PW1. After recording his statement, an application, in terms of Section 319, Cr.P.C, was presented for summoning of the petitioners as additional accused. The said Criminal Misc. No.M-26394 of 2010 (O&M) ..3..
application was allowed and the petitioners were ordered to be summoned as additional accused vide order dated 12.06.2009 (Annexure P-6). After their appearance, the petitioners along their co-accused, who were already facing the trial, were charge- sheeted for the offences punishable under Sections 148, 326, 328 and 377, read with Section 149, IPC. The order of summoning and that of framing of charges against the petitioners are under challenge before this court by way of this petition.
Learned counsel for the petitioners submitted that the learned trial court had passed the impugned summoning order without recording the finding that the persons, sought to be added as additional accused, are likely to be convicted and sentenced. He further submitted that the deposition of Niki Sharma-complainant (PW-1) was not sufficient for passing an order for the summoning of the petitioners as additional accused since the said material was already available on record and no new circumstance had come before the court below which could justify the passing of an order for summoning the petitioners in terms of Section 319, Cr.P.C. He further submitted that mere presence of the petitioners at the spot would not be sufficient to hold that they were privy to the offences committed by their co- accused. He further submitted that the learned trial court had framed the charges as a matter of routine without taking into consideration the fact that there was no material available on record connecting the petitioners with the alleged crime, therefore, the summoning order dated 12.06.2009 (Annexure P- Criminal Misc. No.M-26394 of 2010 (O&M) ..4..
6) as well as the order dated 22.07.2010 (Annexure P-14) whereby the petitioners were charge-sheeted for the offences punishable under Sections 148, 326, 328 and 377,read with Section 149, IPC were liable to be quashed. In support of his contentions, learned counsel for the petitioners has placed reliance upon the following various judgments of different courts:
"1. Paramvir @ Happy vs. State of Haryana, 2009 (1) RCR(Criminal)408;
2. Sarabjit Singh & Anr. vs. State of Punjab & Anr.,2009(3)RCR(Criminal) 388;
3. Kailash vs. State of Rajasthan & Anr., 2008(2) RCR(Criminal)200;
4. Usha Mehta vs. State of Punjab and another, 2009(2)RCR(Criminal)220;
5. Gurpal Singh vs. State of Haryana, 2001(2) RCR(Criminal) 581,
6. Lal Suraj Alias Suraj Singh and another vs. State of Jharkhand, (2009) 2 Supreme Court Cases 696, On the other hand, learned counsel for the State submitted that the presence of the petitioners at the spot at the time of alleged occurrence was fully established from the testimony of Niki Sharma-complainant. He further submitted that after the occurrence, Niki Sharma was thrown on the road and when he regained consciousness in the hospital, his statement was recorded by the police wherein he has specifically named the petitioners as participants in the alleged crime. He further submitted that presence of the petitioners at the odd hours on the day of occurrence would be a sufficient ground to Criminal Misc. No.M-26394 of 2010 (O&M) ..5..
presume that they had the common object with their co-accused to commit the offences for which they had been charged. He further submitted that at the stage when the application under Section 319, Cr.P.C was considered by the learned trial court, the statement of Niki Sharma -complainant was sufficient to pass an order for the summoning of the petitioners as additional accused. While referring to the deposition of Niki Sharma, learned counsel for respondent No.2 vehemently argued that the petitioners were specifically named and their presence at the spot was well established. Learned counsel for the State and learned counsel for respondent No.2 further submitted that the common object of the petitioners for committing the offences for which they have been summoned has prima facie been established. They further submitted that finding a prima facie case learned trial court has framed the charges against the petitioners. They controverted all the submissions made by learned counsel for the petitioners and prayed for dismissal of the petition.
I have heard learned counsel for the parties and perused the material available on record.
The alleged occurrence had taken place on the intervening night of 18/19.09.2008 at about 10.45 p.m when Niki Sharma-complainant was present at the house of Radha Mahant. When Niki Sharma sought permission from Radha Mahant to go to his house then Radha Mahant offered him the tea laced with some poisonous substance as a result of which, Niki Sharma became semi-concious. Goldy Mahant and Mangat Ram- Criminal Misc. No.M-26394 of 2010 (O&M) ..6..
petitioners were taking liquor at that time and they committed sodomy upon Niki Sharma and thereafter, all the persons, namely, Radha Mahant, Renu Mahant, Parveen Mahant, Mangat Ram and Goldy Mahant in connivance with each other cut his penis and threw him on the road. Some unknown persons got him admitted in the hospital, the police arrived there and recorded his statement.
Niki Sharma when appeared as PW-1 before the learned trial court, specifically deposed that in the month of September at about 10.00 p.m when he was present at new Deep Nagar, at that time Mohinder, Sushil, Om Parkash, Mangat Ram, Radha Mahant, Parveen Mahant, Renu Mahant and Goldy Mahant were also present there. Radha Mahant gave him (Niki Sharma) some poisonous substance in the tea and as such, he became semi-conscious and thereafter, Mangat Ram and Goldy Mahant committed unnatural carnal intercourse with him. When Niki Sharma tried to go to his house then all the persons present there forcibly caught him and they emasculated his private part/penis. Perusal of the FIR and the deposition made by Niki Sharma prima facie establishes the presence of the petitioners at the spot and their involvement in the alleged crime.
Undoubtedly, the learned trial court while passing the impugned order had not specifically recorded that the material would be sufficient for holding the accused guilty but that omission could not be sufficient for setting aside the impugned order. If after perusal of the material available on record, this Criminal Misc. No.M-26394 of 2010 (O&M) ..7..
Court finds that there is sufficient material for proceeding against the petitioners, in that eventuality, the arguments raised by the learned counsel for the petitioners would pale into insignificance. Even if the learned trial court failed to record the finding with regard to the ultimate conviction of the petitioners, in so many words, that would not entitle the petitioners to seek quashing of the impugned order on that ground only, provided the material available on record was sufficient for their summoning.
The petitioners were specifically named at the time when the First Information Report was lodged and as well as during the course of the deposition made by Niki Sharma before the learned trial Court. In the given set of facts, Niki Sharma was the best person to depose against the petitioners and his testimony by itself is sufficient for summoning of the petitioners and thereafter, framing of the charges against them. Even otherwise while passing the impugned order (Annexure P-6), the learned trial court observed that perusal of the file shows that the names of those persons figured in the statement of the complainant before the police as well as in the statement of the complainant before the Court below as PW-1 and as such there were sufficient grounds for summoning of the petitioners.
There is no second opinion with regard to the judgments cited by learned counsel for the petitioners. However, the facts and circumstances of those cases were entirely on different footings. Every criminal case has to be decided on its own merits. In the case in hand, the deposition of Niki Sharma Criminal Misc. No.M-26394 of 2010 (O&M) ..8..
(PW1) was by itself sufficient for arriving at a conclusion that prima facie case was made out for the summoning of the petitioners to face trial for the commission of offences punishable under Sections 148, 326, 328 and 377, read with Section 149, IPC. This court is also of the opinion that the learned trial court had rightly summoned the petitioners and thereafter, framed the charges against them for facing the trial along with the principal accused.
In view of the above findings, there is no merit in the petition and the same is hereby dismissed.
September 04,2012 (Naresh Kumar Sanghi) seema Judge
Criminal Misc. No.M-26394 of 2010 (O&M) ..9..