Full Judgment
CRA No.340-SB of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.340-SB of 2011 Date of Decision :
17. 5.2013 Gurpreet Singh .......Appellant Versus State of Punjab .......Respondent CORAM:- HON'BLE Mr.JUSTICE JITENDRA CHAUHAN Present: Mr.Naveen Sharma, Advocate for the appellant.
Mr.Ashish Sanghi, DAG, Punjab.
**** JITENDRA CHAUHAN, J.
The present criminal appeal has been preferred by the appellant, namely, Gurpreet Singh, challenging the judgment and order dated 3.1.2011, passed by the Additional Sessions Judge (Fast Track Court).Bathinda, (hereinafter as 'the trial Court').convicting the accused (herein the appellant) for committing offence under Sections 376 and 366 of the Indian Penal Code, (for short, 'the IPC') and sentencing him as under:- Offence under Sections Sentence 376 IPC Seven years rigorous imprisonment with fine of Rs.1,000/- and in default of payment of fine to undergo RI for three months.
366 IPC Three years rigorous imprisonment with fine of Rs.1,000/- and in default of payment of fine to undergo RI for three months.
CRA No.340-SB of 2011 -2- The brief facts of the case in hand, as recorded by the learned trial Court in the impugned judgment, are reproduced as under:- “2.
Adumbrated in brief, the facts necessary for the disposal of the present case are that on 17.10.2009 ASI Parsan Singh alongwith other police officials was present at Bus-stand of V.
Kot Shamier in connection with patrolling.
There complainant Khajan Singh got recorded his statement to the effect that he is labourer by profession and has five children.; His daughter (here-in-after referred to as prosecutrix so as to prevent her social victimization, her name has been kept secret in view of the observations rendered by the Hon'ble Apex Court in Premia @ Prem Prakash versus State of Rajasthan, reported in 2008(5) Law Herald (SC).Page-3473).the prosecutrix, is aged 17 yeaRs.who is learning stitching at V.
Bhagi Wander and she daily goes on bus to V.
Bhagi Wander.
Gurpreet Singh accused used to follow prosecutrix, to whom complainant stopped many a times from not doing so.
But to no effect.
On 10.10.2009 the prosecutrix went at about 10:00 a.m.to Stitching Centre, but when she did not reutrn till evening, complainant started searching for prosecutrix.
Manga Singh son of Bhan Singh told the complainant, that he had seen accused and prosecutrix boarding the bus from bus stand of V.
Kot Shamir.
He has further deposed that accused has CRA No.340-SB of 2011 -3- kidnapped prosecutrix by alluring her for marriage.
Statement of the complainant was recorded, who put his signatures after admitting its correctness.
The copy was endorsed to police station.
On ruqa being sent, formal FIR came into being.
Police visited the place of occurrence and prepared site plan with correct marginal notes.
Statements of the witnesses under Section 161 of the Cr.P.C.were recorded.
Accused Gurpreet Singh was arrested in the present matter after disclosing him the ground of arrest.
Prosecutrix was also recovered from his possession.
Her statement was also recorded.
Medical examination of prosecutrix was conducted and also that of the accused person from Civil Hospital, Bathinda.
After completion of necessary investigation and other formalities, challan was presented against the accused.”
Charges under Sections 363, 366 and 376 IPC were framed against the accused-appellant to which, he pleaded not guilty and claimed trial.
In order to substantiate the charges against the accused, the prosecution examined as many as fourteen witnesses, viz., Dr.
Monika Gupta as PW1, Dr.
Satish Kumar Goyal as PW2, HC Raj Singh as PW3, the prosecutrix as PW4, Khazan Singh as PW5, HC Ajaib Singh as PW6, ASI Parsan Singh as PW6, Jayant Kumar as PW7, Mewa Singh as PW8, Pritam Singh as PW9, Paramjit Singh as PW10, Jaswant Singh as PW11, HC Malkit Singh as PW12, ASI Balraj Singh as PW13 CRA No.340-SB of 2011 -4- and Harbans Singh as PW14.
PW1 Dr.
Monika Gupta, MO, Civil Hospital, Bathinda, who has tendered her affidavit as Ex.PD, vide which she has deposed that she has examined the prosecutrix vide MLR Ex.PA.
She has further deposed that on receipt of chemical examiner report Ex.PB, on police request Ex.PC, she gave her opinion vide Ex.PC/1 that possibility of sexual intercouRs.cannot be ruled out.
PW2 Dr.
Satish Kumar Goyal has tendered his affidavit as Ex.PF, vide which he has examined the accused vide MLR Ex.PE and found the accused fit to perform the sexual intercourse.
PW3 HC Raj Singh has tendered his duly sworn affidavit as Ex.PW3/A.
PW4 is the prosecutrix, who was turned hostile on the request of Addl.
Public Prosecutor for the State and was subjected to cross-examine by the Addl.
Public Prosecutor.
PW5 is Khazan Singh, complainant/father of the prosecutrix, who was also turned hostile on the request of Addl.
Public Prosecutor for the State and was subjected to cross-examine by the Addl.
Public Prosecutor.
PW6 HC Ajaib Singh has tendered his duly sworn affidavit as Ex.PW6/A.
PW6 ASI Parsan Singh, Investigating Officer of the case, has deposed that on 17.10.2009, he has on patrol duty in V.
Kot Shamier, where complainant Khazan Singh along with Surjit Singh came there and got recorded his statement Ex.PW6/A, which was read over to CRA No.340-SB of 2011 -5- him, who put his thumb impression on the same in token of its correctness.
Investigating Officer made his endorsement Ex.PW6/B and sent the same for registration of the case.
On the basis of which, formal FIR Ex.PW6/C was recorded.
Investigating Officer visited the place of occurrence and prepared rough site-plan Ex.PW6/D.
He has further deposed that on 19.10.2009 after including the complainant he has raided V.
Chhaipian Wali,where accused alongwith prosecutrix was seen coming.
The accused was arrested vide ground of arrest Ex.PW6/E.
Site- plan Ex.PW6/F was prepared.
The accused as well as prosecutrix were medically examined.
Doctor handed over one parcel containing clothes of the prosecutrix, which was taken into possession vide memo Ex.PW6/G.
Birth certificate of the prosecutrix was taken into possession vide memo Ex.PW6/H.
He has also proved parcel of cloth as MO1.
PW7 Jayant Kumar, ARK, Judicial Record Room, Mansa has proved the copy of complaint as Ex.PW7/A and statement of prosecutrix as Ex.PW7/B.
PW8 Mewa Singh, Clerk, Tehsildar Office, Mansa has deposed that as per Marriage Register maintained with him, there is no record marrying of accused with prosecutrix.
PW9 Pritam Singh - photographer has proved the photographs Mark-A to C.
PW10 Paramjit Singh, Granth of Dumwala Gurudwara has deposed that in the month of October, 2009 accused alongwith prosecutrix had come to Gurudwara for performing marriage.
But, he told them to bring their parents if they want to marry.
Thereafter, CRA No.340-SB of 2011 -6- they did not come back.
PW11 Jaswant Singh, Superintendent, Moga has proved the date of birth of the prosecutrix as 5.10.1992 vide Ex.PW11/A.
He has also proved the primary certificate as PW11/B.
PW12 HC Malkiat Singh has proved the copy of DDR as Ex.PW12/A vide which the offence under Section 376 of the IPC was enhanced.
PW13 ASI Balraj Singh has deposed that in the year 2009, he was posted at PS Sadar, Bathinda.
Investigation of this case was entrusted to him.
During investigation, he made request Ex.PC to doctor of Civil Hospital, Bathinda for obtaining the opinion regarding sexual intercourse, who gave his opinion vide Ex.PC/1.
PW14 Harbans Singh, Reader, in the Court of Addl.
District & Sessions Judge, Bathinda has deposed that on 23.10.2006, he was posted as Reader to Sh.
Baljinder Singh, the then ACJM, Bathinda.
Investigating Officer Parsan Singh produced prosecutrix for recording her statement under Section 164 of the Cr.P.C., which was recorded by ACJM, which is Ex.PW4/A.
He has identified the signatures of the then ACJM, Bathinda.
Thereafter, learned Additional Public Prosecutor for the State closed the prosecution evidence.
In his statement under Section 313 Cr.P.C., the accused-appellant denied all the allegations of the prosecution case and pleaded false implication in the case.
Accused-appellant did not lead evidence in his defence.
CRA No.340-SB of 2011 -7- The learned trial Court convicted and sentenced the accused as stated in para No.1 of this judgment.
Feeling aggrieved against the same, the appellant has come up in this appeal which was admitted on 7.2.2011.
Learned counsel for the appellant argued that there is delay of seven days in lodging the FiRs.Information Report which was not satisfactorily explained.
He further argued that the prosecutrix admitted that she was having an affair with the appellant.
PW5 Khazan Singh, complainant did not support the prosecution story.
The learned counsel for the appellant laid stress on the argument that the prosecutrix herself was a consenting party.
At the end he concluded that the conviction is based on the statement under Section 164 of the Code of Criminal Procedure which cannot be relied upon because the prosecutrix stated on oath in Court that the statement was under pressure of the police.
The learned State counsel argued that PW4, the prosecutrix, during her cross-examination admitted the statement recorded under Section 164 Cr.P.C.by the Magistrate, she admitted her signatures on statement Ex.PW4/A.
It was also admitted that the police took her to different places where, she was kept by the appellant.
She also admitted that the Magistrate has recorded the statement after putting questions to her and that the Magistrate did not put any pressure upon her and recorded her statement under Section 164 of Cr.P.C.like a child.
While relying upon the cross-examination of the prosecutrix, the learned State counsel argued that there is a corroboration to the statement under CRA No.340-SB of 2011 -8- Section 164 of Cr.P.C.and the prosecution has proved its case beyond reasonable doubt.
This Court has considered the rival contentions of both the parties and carefully perused the evidence with their able assistance.
It is a case where the prosecutrix did not fully support the case of the prosecution.
In her opening lines of examination-in-chief she has stated that appellant Gurpreet Singh never did anything wrong physically with her.
In her cross-examination by the learned APP, she admitted the recording of her statement under Section 164 Cr.P.C., but she alleged that her statement was recorded by the Magistrate when she was produced by the police under pressure.
She further stated in cross- examination that she had an affair with the accused and that it was correct that the accused did nothing to her against her wishes.
Similarly, PW5 father of the prosecutrix did not support the prosecution case and stated in his examination-in-chief that he had gone to the police station, where the police obtained his thumb impressions on blank papeRs.It is a well settled law that a statement recorded under Section 164 of the Code of Criminal Procedure is not a substantive piece of evidence as truth of facts.
It can only be used either for contradiction or for corroboration purposes.
Statement of the prosecutrix is generally recorded under Section 164 of the Code when it is feared that she may resile afterwards.
Where prosecutrix resiles from her earlier statement under Section 164 of the Code, the Court has to use that statement very cautiously against the accused unless it is corroborated by other evidence.
CRA No.340-SB of 2011 -9- This Court could not find any corroboration to the statement of the prosecutrix recorded earlier under Section 164 of the Code.
The prosecutrix when examined as PW4 in Court damaged the statement under Section 164 of the Code.
In Ram Kishan Singh Versus Harmit Kaur and another, (1972) 3 Supreme Court Cases, 280 it has been held that: “A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence.
It can be used to corroborate the statement of a witness.
It can be used to contradict a witness”.Similar view was taken in Brij Nath Sah Versus State of Bihar, 2010(3) Recent Criminal Reports (Criminal) 434.
In Ram Charan and others Versus The State of U.P., AIR 196.Supreme Court 1270, it was observed as under: “If a statement of a witness is previously recorded under Section 164, Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under Section 164 will not be sufficient to discard it.
The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon”.CRA No.340-SB of 2011 -10- In another case titled Phool Chand and etc.Versus State of U.P., 2004 Criminal Law Journal 1904(Allahabad).it was held as under: “Statement of a witness under Section 164 Cr.P.C.is one where the accused have hardly any occasion to cross examine him and if it is to be treated as substantive piece of evidence, it should be duly tendered before trial Court and then a witness should be produced by the prosecution for his cross examination.
Where witnesses themselves did not support their version, their statements earlier recorded under Section 164 Cr.P.C.could not be available to the prosecution for their corroboration.
It could, to the maximum, be used by the prosecution for their contradiction.
It is obvious that it would be a fallacy of a legal approach to have reliance upon the statement of a witness recorded under Section 164 Cr.P.C.and thereby to record conviction of the accused persons on that basis”.The argument of the learned counsel for the appellant that there was a delay in lodging the FiRs.Information Report is of no consequence in rape cases because sometimes the family takes decision very late in lodging the FIR because the honour of the family is involved.
The star witnesses of the case PW4 the prosecutrix and PW5 the father of the prosecutrix resiled and did not support the prosecution case.
The case is solely based upon the statement of the prosecutrix under Section 164 of the Code which is not an admissible piece of evidence because there is no corroboration from any side to it.
The learned trial Court in para No.32 of the judgment held that “In the CRA No.340-SB of 2011 -11- case in hand, concededly she is less than 18 years of age”.The finding of the learned trial Court that it is clear on record that the rape was committed against her wishes is factually incorrect when this Court scrutinized the statement of prosecutrix in its entirety, it is found that she has stated in clear terms that the appellant did nothing wrong physically to her, and that she had a little bit affairs with the accused/appellant.
She denied the suggestion that the accused during the nights used to rape her.
Rather she denied making any statement before the police.
The father of the prosecutrix took a U-turn and did not support the prosecution case.
The cumulative effect of all the circumstances, is that, the prosecution has failed to prove the case against the appellant beyond reasonable doubt, the benefit of which must go to the accused-appellant.
The learned trial Court has legally erred in convicting and sentencing the accused-appellant on the basis of untrustworthy and unreliable evidence.
Consequently, the present appeal is allowed.
The judgment of conviction and order of sentence dated 3.1.2011, passed by the learned Additional Sessions Judge (Fast Track Court).Bathinda, is set aside; and the appellant is acquitted of the charge framed against him.
The appellant is stated to be in custody.
He be released forthwith, if not required in any other case.
( JITENDRA CHAUHAN ) 17.5.2013 JUDGE Brij Note: Whether to be referred to reporter ?.
Yes