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STATE OF HARYANA versus HOSHIAR SINGH SON OF PREM SINGH, RESIDEN

High Court of Punjab and Haryana, Chandigarh

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State of Haryana v. Hoshiar Singh son of Prem Singh, residen - CRM-290-MA-2006 [2006] RD-P&H 10060 (7 November 2006)

Crl.Misc.A.No.290-MA of 2006 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl.Misc.A.No.290-MA of 2006

Date of Decision: October 11, 2006

State of Haryana

.....Appellant

VERSUS

Hoshiar Singh son of Prem Singh, resident of Village Dhan, Bhoj Koti, Tehsil and District Panchkula

.....Respondent

CORAM:- HON'BLE MR.JUSTICE K S GAREWAL
HON'BLE MR.JUSTICE R S MADAN

PRESENT: Mr.PS Sullar, Deputy Advocate General, Haryana for the appellant.

R S MADAN, J.

State of Haryana has filed this Criminal Misc.Appeal No.290-MA of 2006 under Section 378(3) of the Code of Criminal Procedure where it has sought leave to appeal against the order dated 14-12-2005 passed by the Court of the Additional Sessions Judge, Panchkula in Sessions Case No.19 of 19-8-2004.

In brief, the facts of the case are that a criminal case under Section 376 of the Indian Penal Code read with Section 3 of the Scheduled Castes and Scheduled Tribes Act, 1989 bearing FIR No.244 dated 18-8-2003 of Police Station Chandimandir was registered against Crl.Misc.A.No.290-MA of 2006 2

Hoshiar Singh-accused. As per the case of the prosecution, Chameli Devi-prosecutrix used to tether her cattle in the forest about one year before the registration of the case where accused-Hoshiar Singh came to her and enticed her to marry with him. He took her behind the bushes and raped her.

Thereafter, whenever she used to go to the forest for tethering cattle, Hoshiar Singh used to come and have sexual intercourse with her. After about a months of this incident, the prosecutrix realized that she has developed pregnancy. She informed Hoshiar Singh-accused about her pregnancy. He promised to marry her but gave her medicines 2-3 times to get the pregnancy aborted. After four months, the mother of the prosecutrix found that stomach of Chameli Devi was swelling and she had started vomiting. On her inquiry, she told her mother the entire occurrence. Her mother then informed her father Sita Ram and brother Jaspal. The matter was referred to a joint Panchayat of Village Kangad and Village Dhan, which was attended by Chain Singh Namberdar, Kanshi Ram Namberdar and Phool Singh resident of Village Kangad and Suvidha member panchayat of village Ghati. It was suggested in the Panchayat that the family memebrs of Hoshiar Singh will pay expenses for her marriage but after about 4-5 days, they refused to honour their commitment before the Panchayat. It is thereafter that her statement Ex.PA was recorded by the police on the basis of which the present case was registered against accused-Hoshiar Singh.

On appearance before the Court, a prima facie case under Section 376 of the Indian Penal Code and Section 3 of the Scheduled Castes and Scheduled Tribes Act, 1989 was made out against the accused and he was charge-sheeted thereunder. The accused denied the charge and claimed trial.

Crl.Misc.A.No.290-MA of 2006 3

The prosecution in all examined 16 witnesses. The star witnesses of the prosecution were PW1-Chameli Devi, the prosecutrix, who did not support the case of the prosecution and made a complaint go bye from her statement Ex.PA suffered before the Police; PW2-Tara Devi wife of Sita Ram is mother of the prosecutrix; PW3-Sita Ram son of Balak Ram is father of the prosecutrix and PW4-Yashpal is the brother. These witnesses being the family members of the prosecutrix did not support the case of the prosecution. PW5-Phool Singh, who was one of the members of Panchayat of Village Kangad, which was alleged to have been convened soon after the incident, categorically stated that no writing was done in the Panchayat nor Hoshiar Singh and Chameli Devi appeared in person with respect to the contentions that the family members of Hoshiar Singh agreed to bear expenses of marriage of Chameli Devi. Therefore, the decision taken by the Panchayats remain in abeyance. Besides, there is a testimony of PW8 Dr.Rajiv Kapoor, Radiologist, who gave opinion about the pregnancy of Chameli Devi. PW14-Dr.Yogesh Kumar, Medical Officer had medico legally examined Hoshiar Singh. The testimonies of the other witnesses are formal.

After the evidence of the prosecution was closed, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which entire incriminating evidence against him was put to him in the form of questions to which he replied in negative and pleaded innocence and false implication. However, no evidence was led in defence.

After going through the entire evidence of the prosecution witness, the learned Additional Sessions Judge, Panchkula Crl.Misc.A.No.290-MA of 2006 4

acquitted the accused.

We have heard the learned Deputy Advocate General, Haryana and have carefully gone through the record of the case.

It is a case in which the star witnesses of the prosecution i.e. prosecutrix-Chameli Devi (PW1), her mother-Tara Devi(PW2), father Sita Ram (PW3) and brother Yashpal (PW4) have not supported the case of the prosecution with respect to the incident alleged to have taken place in which the prosecutrix was raped by the accused and developed pregnancy.

They made a complaint go bye from the statements recorded by the Police vide Ex.PA, Ex.PB, Ex.PC and Ex.PD respectively. As per the statement of PW5-Phool Singh, member of Panchayat of Village Kangad is concerned, he too has given clean chit to Hoshiar Singh and Chameli Devi. He, however, admitted the factum of pregnancy of Chameli Devi but stated that neither Hoshiar Singh nor Chameli Devi came present before the Panchayat in person. Therefore, the question of their entering into any negotiation before the Panchayat did not arise. He has categorically stated that no writing was done.

The learned Additional Sessions Judge, Panchkula while relying on Baldhari Ohdar Vs. State of Bihar reported as 2001(3) RCR 183 has observed that even if the accused has committed intercourse with the prosecutrix on false promise that he would marry her and also gave birth to a son, it can be a case of breach of contract for which other legal remedies are available but the offence under Section 376 of the Indian Penal Code was not made out. Similar proposition of law was also laid down in Rajesh Kumar @ Raju Vs. State of Haryana reported as 2002(1) RCR 43.

Keeping in view the dictum laid down in the aforesaid Crl.Misc.A.No.290-MA of 2006 5

Authorities, the learned Additional Sessions Judge, Panchkula rightly observed that the prosecution has failed to prove any of the charges against accused beyond all shadows of reasonable doubts and thus by giving the benefit of doubt, acquitted the accused.

We see no reason to differ with the observations made by the learned Additional Sessions Judge, Panchkula in her impugned order.

For the reasons recorded above, no case for leave to appeal is made out and the same is hereby dismissed.

( R S MADAN )

JUDGE

( K S GAREWAL )

October 11 , 2006 JUDGE

jt


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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