IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Date of Decision: 31.03.2018
Boota Singh …Appellant
State of Punjab …Respondent
CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR
Present:- Mr. Amaninder Preet, Advocate
for the appellant.
Mr. I. P. S. Doabia, Addl. A.G., Punjab.
JAISHREE THAKUR, J. (Oral)
Appellant-Boota Singh assailed the judgment of conviction
dated 29.09.2011 and order of sentence dated 30.09.2011, passed by the
Additional Sessions Judge, Bathinda, whereby he was convicted for
Indian Penal Code and was sentenced as under:
Under Section 376 IPC To undergo rigorous imprisonment
for a period of 07 years and to pay a
fine of Rs. 50,000/- and in default of
payment of fine, to further undergo
rigorous imprisonment for 1 ½ years.
Under Section 323 IPC To undergo rigorous imprisonment
for a period of 01 year.
All the substantive sentences were ordered to run concurrently
and it was also ordered that the amount of fine i.e. `50,000/-, if recovered,
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would be paid to the victim as compensation.
In brief, the facts as per prosecution are that on 26.12.2010 at
about 01.30 PM, ASI Gurmeet Singh along with other police officials from
Police Station City Kotakpura was present at the Traffic Lights Chowk,
Kotapura when the prosecutrix along with her sister and brother met the
police party and made her statement Ex. PF. In her statement, the
prosecutrix stated that she was residing at Devi Wala Road near Power
House, Street No. 06, Kotakpura and was aged around 36 years and that in
the year 2003, her husband had died. She also stated she was living along
with her two children and was working as a maid in various houses for
livelihood. She further alleged that on 24.12.2010 around 11.00 AM, she
was coming after working at the house of Khiba Singh and was returning to
her house. When she reached outside her home near Pulli (small bridge), her
neighbour Boota Singh was standing there and told her that his mother had
called her to their house and when the prosecutrix entered into the house of
the accused, the accused pushed her into a room and bolted the door from
inside. When the prosecutrix tried to raise raula, he threatened her and
started beating her with a stick as a consequence of which, the prosecutrix
received injuries. Eventually, the accused committed rape upon her against
her wishes. It was further alleged by the prosecutrix that at that time she did
not see the mother of the accused in the house and out of fear, she did not
disclose the incident to anyone. However, after calling her relatives, she
narrated the incident to her sister and brother who firstly took her to Civil
Hospital, Kotakpura on 25.12.2010 and since there was no lady doctor, she
was referred to Medical Hospital, Farikot on the same day, however, the
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lady doctor, who was available there, did not admit her and told her to bring
the police. On account of night time, her relatives took her back and on
26.12.2010, the incident was brought to the notice of the police. On the
statement of the prosecutrix, a formal FIR was registered and all the
necessary investigation was carried out. After completion of the
investigation, challan was presented against the accused. Finding a
framed against the accused to which he pleaded not guilty and claimed trial.
Both the parties led their respective evidence and after hearing
both the parties and appraising the entire material and evidence on record,
learned trial Court convicted appellant-Boota Singh as mentioned in the
earlier part of this judgment. Aggrieved against the said judgment, the
appellant preferred the instant appeal.
During the pendency of the appeal before this Court, the
appellant moved an application bearing CRM-120-2013 seeking suspension
of his sentence, however, on 08.01.2013, the same was dismissed as
withdrawn with liberty to move the same at a later stage. Again on
12.02.2014, the appellant moved another application bearing CRM-4305-
2014 seeking suspension of his sentence, however, by an order dated
12.08.2014, this Court dismissed the said application too and the main
appeal was ordered to be fixed for hearing on 10.09.2014.
On 23.09.2017, the appeal was taken up for hearing, on which
date, a custody certificate was filed by the counsel for the respondent-State.
In the said custody certificate, it was submitted that the appellant was
released on four weeks’ parole on 02.01.2015 and was directed to surrender
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on 31.01.2015 by an order dated 02.02.2015 by the District Magistrate,
Faridkot, however, till date neither has he surrendered nor has he taken in
custody. In such a situation, the respondent-State was directed to make
every effort to secure the presence of the appellant. However, he has not
been arrested nor has he surrendered so far. The appeal has been taken up
for hearing today and the situation is the same.
Learned counsel for the respondent-State argues that since the
appellant is voluntarily absconding and not making himself available to the
judicial process, it shows that he has no faith in justice delivery system,
hence, his appeal should be dismissed by this Court.
I have heard learned counsel for the parties and have also
perused the record of the case.
The present appeal has been preferred against the judgment and
order passed by the trial Court wherein the appellant has been convicted for
Indian Penal Code. Offence under Section 376 IPC is a grievous offence
and considered as an offence against the society. The appellant was released
on four weeks’ parole on 02.01.2015 and was directed to surrender on
31.01.2015, however, till date neither has he surrendered nor has he been
arrested. His act in escaping from jail is a wilful, deliberate and gross
violation of the judicial process and it amounts to a defiance of the system
of criminal administration of justice and he is, therefore, not entitled to any
indulgence from this Court. Sine qua non for the hearing of the appeal is
that the accused-appellant is not absconding and the accused must be
available either before Court or before the jail. This Court does not want to
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encourage the absconding accused for continuing to abscond by hearing his
criminal appeal on merits. It can encourage convicts, who are in jail, to
jump bail or furlough.
Counsel for the respondent-State has filed custody certificate
which shows that the appellant has undergone 04 years, 08 months and 12
days of his sentence including remissions. However, since the appellant has
misused the concession of parole allowed to him and has not surrendered,
his appeal itself is likely to be dismissed on the ground that he is not keen
on its adjudication.
In view of the above facts and circumstances, the instant appeal
is hereby dismissed. However, in case the appellant surrenders to the jail or
he is taken in custody, it will be open to him to move an application for
restoration of this appeal, which shall be considered in accordance with law.
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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