STATE OF PUNJAB v.

CHATINDER PAL SINGH & ORS. (Criminal Appeal No. 352 of 2002)

NOVEMBER 11, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J.  1. Challenge in this appeal is to the

judgment  of  the  Punjab  and  Haryana  High  Court  upholding  the judgment of acquittal passed by learned Additional Sessions Judge, Ropar.  The  respondents  faced  trial  for  alleged  commission  of offences punishable under Sections 376, 366, 363 and 308 of the Indian Penal Code, 1860 (in short IPC).

The background facts as projected by the prosecution during trial are as follows:

The FIR, Exhibit PD-3 in this case was recorded on July 29, 1989 at 9.30 P.M. in Police Station Mohali  under Sections 383 and 378 IPC on the basis of statement (Exhibit PD) made by Kumari Poonam (since deceased) recorded by Head Constable Bishnu Dutt  in PGI Chandigarh at 1.30 P.M. on July 29, 1989. In the said statement it was alleged by Kumari Poonam (since deceased ) aged about 16-1/2 years  that  she  was  a  student  of  9th  Class  in  Senior  Secondary School,  Mohali and that on that date i.e. on July 29,1989 at about 10.15 A.M.  she had committed suicide by putting kerosene oil on her clothes and putting the same on fire on account of misbehaviour by accused Honey who was resident of H.No. 112, Phase II, Mohali. It was alleged that on July 17, 1989 when she was going to the school at  about  7.00 a.m. along with her brother  Anil,  on the way Honey accused met them and he asked her to accompany him, failing which he would not spare her brother and out of fear she went with him and he took her to Rose Garden, Chandigarh in an Ambassador car. It was further alleged that on that previous day i.e. July 28, 1989, in the same manner she was coming to the school at about 7.00 a.m. along with her brother Anil and her friend Rajni when accused Honey along with two others who she could recognise met them in white coloured Ambassador car and they made her brother Anil sit  in the said car

and told her that if she wanted her brother then she should sit with them and out of fear she sat in the car and they also made Rajni sit in the said car.  Thereafter  they took them to a hotel in Sector 22, Chandigarh  and  there  they  forcibly  committed  rape  on  her  and thereafter they left them at Mohali at about 1.00 P.M. on that day. It was further alleged that thereafter she had told the entire occurrence about these two dates to her mother. It was further alleged that on that  day i.e.  July 29,  1989,  the said boy i.e.  Honey came to their house and rang the door bell and went away after giving a signal to her and at that time there was no one else in the house.

Her mother  had stopped her  from going to  the school.  It  was alleged that she put herself on fire as she had been defamed in the eyes of the public and it was useless to live. She further alleged that on hearing her cries, another tenant Darshan Singh who was residing in the adjoining room came there and he put off the fire and he also called her mother and thereafter they brought her to PGI Chandigarh where she was under treatment. She further stated that she had put herself  on  fire  because  of  the  earlier  incident  concerning  Honey accused and hence accused Honey and his friends were responsible for  the  same.  This  statement  Exhibit  PD  was  recorded  by  Head Constable  Bishnu  Dutt  in  the  presence  of  PW3  Dr.  A.S.  Bawa. Further, Head Constable Bishnu Dutt recorded the statement Exhibit PD of Kumari Poonam after  obtaining opinion  Exhibit  PC/1 of Dr. A.S.  Bawa  about  the  fitness  of  Kumari  Poonam  to  make  the statement.

After  recording  the  said  statement,  HC Bishnu  Dutt  sent  the same to  Police  Station  Mohali  as  the  case  pertained  to  the  said Police Station. Thereafter, ASI Avtar Singh of Police Station, Mohali moved  an  application  before  the  SDM  for  making  necessary arrangements  to record dying declaration  of  Kumari  Poonam by a Magistrate.  Thereupon,  Shri  P.K.  Sharma,  Executive  Magistrate, Chandigarh was deputed for this purpose. Shri P.K. Sharma moved application Exhibit  PH to the Doctor in charge about the fitness of Kumari Poonam and the doctor on duty declared her fit to make the statement at 7.30  P.M. on July 29, 1989 vide endorsement Exhibit PH/1. Thereafter  Shri  P.K.  Sharma, Executive Magistrate recorded the statement Exhibit PJ of Kumari Poonam at 8.10 P.M. on July 29, 1989 in PGI Chandigarh in English.

After  completion  of  investigation,  charge  sheet  was  filed.  The accused persons pleaded innocence and therefore trial was held.  

In order to establish the accusations, prosecution examined 17 witnesses.  After  considering  the  materials  on  record,  learned Additional  Sessions  Judge,  Ropar  directed  acquittal  of  the  four accused persons of the various charges. State filed an appeal before the High Court. The stand of the State before the High Court was that even though Pws 13 and 15 i.e. the brother of the deceased (Anil Kumar)  and  her  friend  (Rajni)  had  not  supported  the  prosecution case, the two dying declarations PDI and PJI clearly established the accusations.  The accused  persons  took  the  stand  that  in  the  so- called  two  dying  declarations  there  were  various  inconsistencies which were irreconciliable. Therefore, the trial court was justified in directing  the  acquittal.  The  High  Court  accepted  the  plea  of  the accused persons and upheld the acquittal.  

The stand taken before the High Court by the prosecution and the accused persons have been reiterated in the present appeal.

We  find  that  two  so-called  eye-witnesses  examined  by  the prosecution i.e. Pws 13 and 15 who happen to be the brother and the friend of the deceased did not support the prosecution version and resiled from their statement made during investigation. Therefore, the residual question is the acceptability of the two dying declarations. The trial court did not place any reliance on the dying declarations.

The discrepancy pointed by the trial court is that in Ex. PD there is mention about one incident of rape on her on July 28,1989 in a hotel at sector 22 Chandigarh by Honey and two other accused. She does not state in the dying declaration in Ex PJ that she was raped on July 17th and stated that accused Honey had simply taken her to Rose Garden.  In  ExPJ she does not  mention the date of  the first incident as July 17th but states that her friend Rajni was also with her and they were taken to some unknown hotel while Honey raped her and accused Longowal raped Rajni.  She also did not  mention the second incident to have taken place on 28th July and stated that it was 2/3 days ago and not yesterday, when the boys took them to a hotel  in  Sector  22  and  raped  them.  There  are  several inconsistencies and contradictions in the Ex PD1 and PJI.

Above being  the  position,  when two courts  on analysis  of  the evidence  found  the  respondents  not  guilty,  there  is  no  scope  for interference in this appeal. The reasons indicated by the trial court and affirmed by the High Court discarding the two dying declarations do not suffer from any infirmity. The appeal fails and is dismissed. If the respondents have been released on bail  pursuant to the order dated 20th April, 2001, the bail bonds stand discharged.