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2015 DIGILAW 456 (RAJ)

Nisar v. State of Rajasthan

2015-02-18

KANWALJIT SINGH AHLUWALIA, R.S.CHAUHAN

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JUDGMENT : Kanwalijit Singh Ahluwalia, J. On 04th December, 2014, in pursuance of the order passed by Hon'ble Apex Court in Special Leave to Appeal (Cri.) 2009/2014 decided on 28th February, 2014, we had ordered that the D.B. Criminal Appeal No.963/2012 be posted for final hearing and disposal. D.B.Criminal Appeal No.963/2012 was taken up for hearing on 16th December, 2014. During the course of the arguments, Shri Suresh Sahni, counsel for the appellant, prayed for an adjournment to file an application under Section 391 Cr.P.C. 2. The present appellant Nisar s/o Ayub was tried by the Court of Additional Sessions Judge No.2, Deeg District Bharatpur, and by impugned judgment dated 25th September, 2012, he has been convicted for offences under Sections 366, 368, 376 and 506 IPC. 3. Having convicted the appellant for the above said offences, by a separate order dated 26th September, 2012, the appellant was sentenced as under :- For offence under Section 376 IPC Life imprisonment, and a fine of Rs.1,00,000/-, in default thereof, to further undergo one year simple imprisonment. For offence under Section 366 IPC Five years' rigorous imprisonment, and a fine of Rs.10,000/-, in default thereof, to further undergo three month's simple imprisonment. For offence under Section 368 IPC Three years' rigorous imprisonment, and a fine of Rs.5,000/-, in default thereof, to further undergo one month simple imprisonment. For offence under Section 506 IPC One years' rigorous imprisonment, and a fine of Rs.5,000/-, in default thereof, to further undergo one month simple imprisonment. All the above sentences were ordered to run concurrently. 4. The prosecutrix (name withheld to protect her identity) had appeared in the Court as P.W.-4. It is not denied that due to alleged rape committed upon her, she had become pregnant. 5. A perusal of testimony of prosecutrix reveals that it was suggested to her that she had filed a petition before the Punjab & Haryana High Court under Section 482 Cr.P.C., she herself appeared in the Court, along with Satish Chaudhary, Advocate. And thereafter, Punjab & Haryana High Court provided her security on 10th November, 2010 to facilitate her appearance before Superintendent of Police, Mewat. The prosecutrix has denied these suggestions. 6. During the course of the arguments on the last date, counsel for the appellant referred to Criminal Misc. And thereafter, Punjab & Haryana High Court provided her security on 10th November, 2010 to facilitate her appearance before Superintendent of Police, Mewat. The prosecutrix has denied these suggestions. 6. During the course of the arguments on the last date, counsel for the appellant referred to Criminal Misc. No.32979/2010 (Ex.D/11) preferred by the prosecutrix along with the present appellant under Section 482 Cr.P.C. before Punjab & Haryana High Court wherein they had sought directions against the respondents. In the petition, it was pleaded, and prayed that the prosecutrix, and her husband be not impleaded in a false case. The prosecutrix further prayed that her matrimonial life should not be disturbed. 7. A perusal of contents of the petition filed under Section 482 Cr.P.C. by the prosecutrix, reveal that prosecutrix herself was petitioner No.1, whereas the present appellant, being her husband, was impleaded as petitioner No.2. In the said petition it was averred that the prosecutrix had performed marriage with the present appellant according to her own freewill, and volition. 8. A single Judge of Punjab & Haryana High Court (Ms. Justice Nirmaljit Kaur), as Her Lordship was then Judge of Punjab & Haryana High Court, had passed the following order : - "Coram : Hon'ble Ms Justice Nirmaljit Kaur Present : Mr. Satish Chaudhary, Advocate for the petitioners. - . - 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? Nirmaljit Kaur, J.(Oral) - This is a petition under Section 482 of the Code of Criminal Procedure for issuance of directions to the official respondents not to harass the petitioners. The petitioners along with their counsel are present in Court in person. (emphasis supplied) The present petition is disposed of with a direction to the Superintendent of Police, Mewat to look into the grievances of the petitioners and, if found necessary, take appropriate measures in accordance with law. sd/- Nirmaljit Kaur Judge 10.11.2010." During the course of the arguments on the last date, the learned Public Prosecutor stated that the counsel who had identified the prosecutrix as a petitioner in the Court was not examined by the defence, and, therefore, it cannot be said that the prosecutrix is the one, who had appeared in Punjab & Haryana High Court. 9. 9. To controvert this, Shri Suresh Sahni, counsel for the appellant, urged that the prosecution has withheld an important witness Assistant Sub Inspector, Jagdish Chandra, Police Station, Punhana, District Nooh Mewat (Haryana) from the Court. For he was not examined as witness, even though his statement was recorded by the investigating agency under Section 161 Cr.P.C. to the effect that he had accompanied, the prosecutrix, on her asking, along with appellant to Delhi. 10. Having heard counsel for the parties, we are of the view that journey of the Court is to arrive at truth, and dispense justice. An important feature of the case that the prosecutrix had appeared in the Court of Punjab & Haryana High Court, and had herself stated that she had married appellant according to her own freewill, and volition was not inquired into by the trial Court. 11. In Rajendra Prasad v. Narcotic Cell, Delhi (1999) 6 SCC 110 while considering the scope of Section 311 Cr.P.C. Hon'ble Apex Court has observed as under : - "8.--------------------------------------No party in a trial can before-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. 9. The very same decision Mohanlal Shamji Soni v. Union of India (supra) which cautioned against filling up lacuna has also laid down the ratio thus: "It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examined any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case." (emphasis supplied) 10. Dealing with Corresponding Section in the old Code Section 540. Dealing with Corresponding Section in the old Code Section 540. Hidyatullah J. (as the learned Chief Justice then was) speaking for a three-judge bench of this Court had said in Jamatraj Kewalji Govani v. The State of Maharashtra as follows: "It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage or the trail to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercise the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case." 11. Chinnappa Reddy, J. has also observed in the same tone in Ram Chander v. State of Haryana." 12. Having heard counsel for the parties, we are of the view that trial Court ought to have called for the record of Punjab & Haryana High Court, and ought to have inquired whether the prosecutrix had appeared in Punjab and Haryana High Court or not ? It will be great embarrassment that in one judicial proceedings the prosecutrix claimed that she herself had married the appellant, and in another Court proceedings, she projected that she was subjected to rape. The order passed by Punjab & haryana High Court is an important piece of evidence which cannot be brushed aside. Therefore, examination of the counsel who was present, along with the prosecutrix, before the Single Judge of Punjab & Haryana High Court is necessary to identify the prosecutrix as the one, who had appeared in the Punjab & Haryana High Court or not ? Similarly, examination of Jagdish Chandra, Assistant Sub- Inspector, Police Station, Punhana, District Nooh Mewat (Haryana), who in consonance of the request of the prosecutrix, had accompanied the prosecutrix, and the appellant to Delhi is also necessary. 13. We would have ourselves undertaken this exercise, but we are informed that the co-accused of the appellant, who were summoned under Section 319 Cr.P.C., have now appeared before the trial Court, and a separate trial has commenced qua them. 13. We would have ourselves undertaken this exercise, but we are informed that the co-accused of the appellant, who were summoned under Section 319 Cr.P.C., have now appeared before the trial Court, and a separate trial has commenced qua them. Therefore, any observation made by us at this stage, is likely to prejudice both the prosecution, and the defence in respect of the trial which is going on before the Court below. To ward off such an eventuality, and to balance the equities, we set aside the impugned judgment dated 25th September, 2012, and impugned order dated 26th September, 2012 passed by Additional Sessions Judge No.2, Deeg Distt. Bharatpur, and remit the matter to the trial Court to record statements of Satish Chaudhary, Advocate, Jagdish Chandra, Assistant Sub-Inspector, Abdul Rahim, Pawan Kumar Pareek, Dr. Babulal Meena, and Shri Naresh Yadav as Court witnesses under Section 311 Cr.P.C. The trial Court may summon record of Punjab & Haryana High Court, and if necessary may compare the signature. 14. We clarify that the prosecution, and defence evidence earlier recorded by the trial Court qua appellant shall remain intact, and after recording statement of the above witnesses as Court witnesses, the Court shall afford an opportunity, if necessary, to the prosecution, and the defence to lead further evidence, to rebut evidence of the court witnesses. 15. The Court shall also record additional statement of the accused-appellant under Section 313 Cr.P.C. qua the incriminating evidence, which may emerge in the deposition of Court witnesses. 16. After the needful is done, the trial Court shall pass a fresh judgment, considering evidence of Court witnesses. 17. Since we are informed that trial is going on against the co-accused, the trial Court shall deliver a judgment in this case, and in the case of co-accused separately but simultaneously by concluding both the trials within six months. 18. Since the appellant was in custody during the course of trial, and was not granted bail, and as on today, also the appellant continues to be in custody, we transpose him, to same situation as he was during the course of trial. We order that the appellant shall remain in custody till the judgment is delivered by the trial Court. 19. In view of the above, D.B.Crim. Misc. Application No. 255/2015, and D.B.Criminal Appeal No.963/2012 stand disposed of. Appeal Disposed of with Above Directions.