CRA-S-3163-SB of 2013 (OM) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-3163-SB of 2013 (OM)
Date of decision : November 27 , 2017
Dheeraj Kumar @ Sonu …Appellant.
Vs.
State of Punjab …Respondent.
CRA-S-3769-SB of 2013 (OM)
Paramjit Kaur @ Sukhi and another …Appellants.
Vs.
State of Punjab …Respondent.
CORAM:- HON’BLE MRS. JUSTICE LISA GILL
Present: Mr. Dinesh Goyal, Advocate
for the appellants (in CRA-S-3769-SB of 2013)
Mr. Amaninder Preet, Advocate
for the appellant (in CRA-S-3163-SB of 2013)
Mr. Saurav Khurana, DAG, Punjab.
***
LISA GILL, J.
This judgment shall dispose of two appeals i.e. CRA-S Nos.
3163 of 2013 and 3769-SB of 2013 as both these appeals arise out of a
common judgment and order.
The learned Additional Sessions Judge, Ludhiana has
convicted all the appellants vide judgment dated 20.07.2013 for the
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offences punishable under Sections 376(2)(g), 506 IPC. By a separate
order of even date, they have been sentenced as under:-
Sr. Name of Sentence Further sentence
No. Convict in case of non
payment of fine
1. Chaman Lal U/s 376(2)(g)IPC : R.I. for ten Six months
years with fine of Rs. 20,000/-
U/s 506 IPC : RI for two years
2. Dheeraj U/s 376(2)(g)IPC : R.I. for ten Six months
Kumar years with fine of Rs. 20,000/-
U/s 506 IPC : RI for two years
3. Paramjit U/s 376(2)(g)IPC read with Six months
Kaur Section 120B IPC : R.I. for ten
years with fine of Rs. 20,000/-
U/s 506 IPC : RI for two years
CRA-S-3163-SB of 2013 has been preferred by the
appellant – Dheeraj Kumar @ Sonu and CRA-S-3769-SB of 2013 has
been preferred by Paramjit Kaur @ Sukhi and Chaman Lal.
It is informed that Chaman Lal – appellant No. 2 in CRA-
S-3769-SB of 2013 has since passed away on 03.01.2016. This fact is
verified by learned counsel for the State, who refers to custody
certificate dated 28.01.2016 verified by Sh. Surinder Pal Khanna, PPS,
Superintendent, Central Jail, Ludhiana, wherein it is mentioned that the
appellant – Chaman Lal was admitted in Rajindra Hospital, Patiala on
31.12.2015 and further referred to PGI, Chandigarh on 03.01.2016.
However, the appellant – Chaman Lal passed away on 03.01.2016
while being taken to PGI, Chandigarh.
Learned counsel for the appellants submits that this appeal
qua appellant No. 2 – Chaman Lal has, thus, abated.
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Ordered accordingly.
The above said appeals, thus, survive qua the appellants –
Paramjit Kaur @ Sukhi and Dheeraj Kumar @ Sonu.
Brief facts of the case are that FIR No. 15 dated 15.01.2008
was registered on the basis of statement of the prosecutrix. The
prosecutrix (PW3) in her statement (Ex.PA) stated that she had studied
up to 2nd standard and she has three sisters, who are married and one
brother. She is the youngest of all siblings. The victim’s mother, it is
stated, was working as domestic help in various houses in the locality
and her father was working as a labourer. The appellant – Chaman Lal
was a resident of their locality and his house was situated in front of
their house. The mother of the prosecutrix is stated to be working in the
house of Chaman Lal as well. The prosecutrix stated that her mother on
14.01.2008 left the house in the morning for doing her work. Her father
and brother had also gone out for work and she was alone in the house.
At about 11.00 a.m. Paramjit Kaur @ Sukhi came to their house and
said that there was some work at her house and asked the prosecutrix to
come alongwith her and do the said work. The prosecutrix
accompanied Paramjit Kaur and went to her house where Chaman Lal –
her husband (since deceased) and son of their brother-in-law (Jeth)
namely Dheeraj Kumar were present. Paramjit Kaur forcibly took the
prosecutrix to a room on the first floor of the house. Dheeraj Kumar
caught hold of the legs of the prosecutrix and they both took her
towards the bed. Chaman Lal removed his clothes and broke the sting
of the prosecutrix’s salwar. When the prosecutrix tried to raise
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alarm, Paramjit Kaur, who was holding the arms of the prosecutrix,
covered her mouth with a shawl to prevent the prosecutrix from
screaming out. Chaman Lal thereafter committed rape upon the
prosecutrix. Thereafter, appellant – Dheeraj Kumar also violated the
person of the prosecutrix. The complainant stated that her condition
became bad. Paramjit Kaur alias Sukhi threatened the prosecutrix not to
reveal the occurrence to anybody as in that situation she would have
the prosecutrix killed while proclaiming that she wields influence at
very high levels. The prosecutrix being very scared came back home.
When the mother of the prosecutrix returned home, the prosecutrix
started weeping loudly and on inquiry she narrated the incident to her
mother. The father and brother of the prosecutrix were called home and
the prosecutrix was taken to the Civil Hospital. The prosecutrix was
admitted in the civil hospital at 10.25 p.m. on 14.01.2008 and
intimation was sent to the police authorities on 14.01.2008 itself and
thereafter a reminder (Ex.PW6/B) on 15.01.2008.
Statement of the prosecutrix was recorded on the next day
i.e. 15.01.2008, on the basis of which formal FIR No. 15 (Ex. PC) was
recorded. Medical examination of the prosecutrix was conducted by
Dr. Surinder Pal Kaur, PW6. Copy of the MLR is Ex. PW6/A, report of
the Chemical Examiner is Ex. PW6/C, the doctor’s opinion is
(Ex.PW6/D). Ossification test and the ultra sound of the pelvis of the
prosecutrix was conducted by Dr. Hitinder Kaur, Medical Officer, PW9
on 15.01.2008. As per report of the ossification test (Ex. PW9/A), age
of the prosecutrix is opined to be 17-20 years. Accused Chaman Lal
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was arrested on 19.01.2008 and Dheeraj Kumar on 18.05.2008. They
were subjected to medical examination.
The appellant – Paramjit Kaur @ Sukhi was found innocent
during investigation and she was placed in column no. 2. Report under
Section 173 Cr.P.C. was presented on completion of the investigation
against Chaman Lal and Dheeraj Kumar. The case was committed to
the court of sessions. Charge was framed on 13.03.2009 against
Chaman Lal and Dheeraj Kumar. The appellant – Paramjit Kaur was
subsequently summoned on an application under Section 319 Cr.P.C.
to face trial as an additional accused. Amended charge was framed on
16.07.2013.
The accused in their statements under Section 313 Cr.P.C.
denied the incriminating evidence put to them. They pleaded innocence
and false implication in this case.
Chaman Lal (since deceased) while pleading false
implication and innocence in his statement under Section 313 Cr.P.C
stated that the father of the prosecutrix had a dispute with Dheeraj,
Mewa Singh, Shano and Vicky. Chaman Lal had supported Dheeraj
due to which father of the prosecutrix was enraged and threw dirty
water in front of the gate of their house (house of the appellant –
Chaman Lal). A complaint was moved by the father of the prosecutrix.
Thereafter, with the help of Charanjit Singh @ Channi, a false case was
registered against him.
Dheeraj Kumar, who was aged 18 years at the time of
occurrence (as mentioned in Ex. PB/10), in his statement under Section
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313 Cr.P.C. specifically stated that he was falsely implicated in this
case being a nephew of Chaman Lal and Paramjit Kaur. There was a
dispute regarding disposal of dirty water between Paramjit Kaur and
the family of the prosecutrix. Before registration of this case, the
accused had beaten one Channi, his neighbour. The father of the
prosecutrix and Channi had moved an application against the accused
and Chaman Lal. The present case was registered against him at the
instance of Channi.
Appellant – Paramjit Kaur pleaded innocence and
specifically stated that she was not present at her residence on the date
of occurrence. She came back to her house in the evening and then
came to know that a dispute had arisen between Dheeraj, Mewa Singh,
Shanu, Vicky and father of the prosecutrix. The accused supported
Dheeraj due to which Charanjit Singh Channi and father of the
prosecutrix got angry and threw dirty water in front of their gate. Father
of the prosecutrix thereafter moved an application before the police in
respect to beating being given to them. It is thereafter that a false case
was registered against her and co-acused. She moved an application
before Senior Superintendent of Police, Ludhiana for an inquiry which
was conducted by Ms. Dhanpreet Kaur, IPS, stationed as SHO Police
Station Sarabha Nagar. Paramjit Kaur was declared innocent.
Two (2) witnesses were examined in defence in order to
project that an altercation had taken place between the family of the
prosecutrix and family of the accused regarding discharge of water.
Learned trial Court on considering the evidence on record,
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facts and circumstances of the case, concluded that the prosecution had
proved its case beyond reasonable doubt qua all the accused persons
and, accordingly, convicted them for the offences as mentioned above
and sentenced them as detailed above.
Aggrieved therefrom, the present appeals have been filed.
Learned counsel for the appellants vehemently argued that
evidence on record does not justify the conviction of the appellants. It
is submitted that the incident in question is alleged to have taken place
at about 11.00 a.m. on 14.01.2008. The mother of the prosecutrix
allegedly came back home at about 12.00 noon. The prosecutrix was
admitted in hospital after considerable delay at 10.25 p.m. on
14.01.2008. However, the mother of the prosecutrix while deposing as
PW4 stated that she took her daughter to the hospital on the next day
i.e. on 15.01.2008. The accused – Chaman Lal specifically requested for
DNA testing on 19.01.2008 itself as reflected in Ex. PF/1. Dr. Jasbir
Singh was even directed to do the needful on 21.01.2008 as is reflected
in the said document. However, no action, it is submitted, was taken in
this regard causing grave prejudice to the defence. Chaman Lal moved
an application as well for conducting his DNA test on 27.10.2009 but
the said application was dismissed by the learned trial Court on
14.11.2009. Moreover, age of the prosecutrix has been wrongly
mentioned to be 13-14 years whereas medical evidence on record
proves that she was 17-20 years of age as on 15.01.2008.
It is vehemently argued that the present case has been
foisted upon the appellants solely because of political rivalry. The
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appellant – Paramjit Kaur was the President of the Bazigar Association,
appellant – Chaman Lal is her husband and Dheeraj Kumar her nephew
being the son of her brother-in-law (Jeth). Paramjit Kaur was found
innocent during investigation and there is no other evidence on record
to prove her complicity in the matter. It is urged that it is impossible for
a wife to have connived and conspired for the commission of said
offence by her own husband and nephew, that too in her own presence.
Moreover, the medical evidence on record, it is submitted, does not
corroborate the version of the prosecutrix. Therefore, reliance solely on
the testimony of the prosecutrix is not justified in the facts and
circumstances of this case. Learned counsel for the appellants submits
that as per report of the Chemical Examiner (Ex.PW6/C), spermatozoa
was found only on the contents of exhibit C i.e. pyjami of the
prosecutrix and not on the contents of exhibit A and B i.e. vaginal
swabs of the prosecutrix. The so-called injuries on the wrist and
shoulder of the prosecutrix in fact corroborate the defence version that
an altercation had indeed taken place during the day on 14.01.2008 in
respect to which a complaint was made by the father of the prosecutrix
as reflected in the entry Ex. DA. In these circumstances, it is submitted
that the present appeal be allowed and the impugned judgment and
order dated 20.07.2013 passed by the learned Additional Sessions
Judge, Ludhiana be set aside thereby acquitting the appellants of the
charges against them.
Learned counsel for the State while refuting the said
averments submits that the prosecutrix has stood by her version. There
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is nothing on record to impugn her credibility. Injuries on the person of
the prosecutrix as well as the medical evidence on record, specifically
the chemical examiner’s report prove the commission of the offence by
the accused persons. Prosecution, it is submitted, has proved its case
beyond the shadow of reasonable doubt against the accused persons.
Therefore, the well reasoned and logical judgment of conviction passed
after consideration of the entire evidence on record as well as the
sentence imposed upon the appellants should be upheld. Thus, it is
prayed that these appeals be dismissed.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
FIR No. 15 dated 15.01.2008 was registered on the basis of
the statement (Ex. PA) by the prosecutrix. The prosecutrix in her
testimony before the Court stated that she is the youngest of four
siblings. Her mother worked as domestic help in the houses of various
people. Her father was a labourer. Her parents had gone out for work
on 14.01.2008 and she was alone at home. Appellant – Paramjit Kaur
alias Sukhi came to their home at about 11.00 a.m. and asked her to
accompany her to her residence as there was some work to be done.
The prosecutrix has reiterated the allegations as narrated in her
statement (Ex. PA). In her cross examination, she stated that she
returned home from the residence of Paramjit Kaur at about 12.30
noon. The prosecutrix called her mother, who was working in another
mohalla (locality) about 4/5 houses away. It is further stated that she
alongwith her parents went to the police station at about 1 o’clock at
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noon but no action was taken. They came back home and thereafter at
about 3.00 p.m. they proceeded to the hospital. There is however no
such evidence on record to show that the police authorities were
approached by the victim or her parents prior to 15.01.2008. The
prosecutrix has denied any knowledge about the quarrel between the
appellant – Dheeraj and their neighbour – Charanjit Singh @ Channi.
She has denied that any complaint was moved by her father against the
accused persons alongwith others in respect to disposal of dirty water
on 14.01.2008. It is, however, admitted that there is a water tank
(howdi) beside their house where they stored waste water. It is stated
that whenever it is full, the same is emptied by taking out water with
buckets and throwing it out.
The mother of the prosecutrix (PW4) revealed that when
she came back home at 12.00 noon, she found the prosecutrix weeping.
She narrated the entire incident on inquiry. Consequent thereto, the
prosecutrix was admitted at the Civil Hospital, Ludhiana. PW4 in her
cross examination has admitted that about 2/3 months after the incident,
a lady police officer accompanied by other police officials had visited
them regarding the occurrence. Inquiries were made but she denied any
knowledge about the appellant – Paramjit Kaur being found innocent in
the said inquiry. It is stated by PW3 and PW4 that they were tutored by
their counsel before recording of their statement.
As per the medical evidence on record, injuries were found
on the person of the prosecutrix as reflected in the MLR (Ex.PW6/A),
which was duly proved by PW6 Surinder Pal Kaur. PW6 stated that on
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external examination of the victim, small abrasions were detected on
her left wrist and below the right shoulder. The victim was complaining
of pain in the vaginal area. No bleeding or discharge was found on
vaginal examination. Hymen was torn, admitting one finger loosely.
Dr. Surinder Pal Kaur, PW6 stated that she was posted as a Medical
Officer at Civil Hospital, Ludhiana on 15.01.2008. The victim was
brought to the emergency with alleged history of rape. She was
accompanied by lady Head Constable Kashmir Kaur and mother
Charno. It is stated by PW6 that after conducting of the medical
examination, vaginal swabs duly sealed in a jar, forwarding letter, black
pyjama (slacks) of the victim duly sealed alongwith sample of the seal
and envelop bearing six seals, were duly handed over by her to the
police officials. As per report (Ex. PW6/D) submitted by PW6, it is
opined that the prosecutrix was subjected to sexual intercourse
especially keeping in view the presence of spermatozoa detected on the
contents of exhibit C. Chemical examiner’s report is Ex. PW6/C. PW6
in her cross examination stated that the victim and her mother did not
disclose either the name of the accused or the place of occurrence.
As per PW9 Dr. Hitinder Kaur, Medical Officer,
Radiologist, Civil Hospital, Ludhiana, radiological bone age of the
prosecutrix was between 17-20 years. It is to be noted that there is no
birth certificate or any other documentary evidence in respect to the age
of the victim at the time of occurrence.
A perusal of the evidence on record, entire facts and
circumstances of the case, the prosecution has indeed proved its case
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beyond reasonable doubt against the appellant – Dheeraj Kumar. It is to
be noted that the prosecutrix has given a consistent version in respect to
the offence committed by the appellant – Dheeraj Kumar. Much stress
has been laid on the absence of spermatozoa on the vaginal swabs.
However, the fact which cannot be lost sight of is the Chemical
Examiner’s report (Ex. PW6/C) wherein spermatozoa was found
present on the pyjama (slacks) of the victim. PW6 has specifically
stated that the said piece of clothing of the victim was handed over by
her to the police after conducting the victim’s medical examination. In
this situation, argument of learned counsel for the appellant that the
victim in her statement mentions that she was wearing a salwar kameez,
therefore, question of pyjama being subjected to chemical examination
does not arise is untenable. It is to be noted that the occurrence took
place in the month of January i.e. extreme winters in North India,
therefore, statement of the victim that she was wearing a salwar
kameez, does not in any manner detract from the prosecution case as it
is a common practice to wear pyjama/slacks underneath the salwar.
Another argument raised is that the defence of the
appellants has been wrongly rejected. Reference is made to Ex. DA i.e.
a copy of an entry in the Register maintained at the police station.
There is an Entry dated 14.01.2008 in respect to a complaint made by
Charanjit Singh and father of the prosecutrix against the appellant –
Paramjit Kaur, her husband – Chaman Lal, Mewa Singh, Shano, Vicky
and 5-6 others in respect to beating and tearing of clothes of the girl. It
was vehemently argued that the said Entry reflected in Ex. DA has been
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admitted by PW5 Inspector Gurpreet Singh, the Investigating Officer.
Moreover, the victim, in this case, has admitted that there is a water
tank beside their house where they store dirty water. Therefore, the
defence version is buttressed and has been wrongly ignored by the
learned trial Court. It is to be noted that the victim PW3 nor her mother
PW4 have not been confronted with Ex. DA though a suggestion has
been put to them that a complaint was moved by the victim’s father
against the appellants and others. This suggestion has, however, been
denied by both the said witnesses. It is pertinent to note that the
application, which was purportedly moved by the victim’s father has
not seen the light of the day. It is further relevant to note that in the
Inquiry report (Ex. D1), the concerned officer has not made any
mention of the said dispute regarding dirty water neither is there any
mention of such an application moved by the victim’s father. It is
opposed to all probabilities that, in case, there was indeed such an
altercation, the same would not have been brought to the notice of the
officer conducting the inquiry at the instance of the accused – Paramjit
Kaur.
Learned counsel for the appellants with great vehemence
argued that the accused – Chaman Lal (since deceased) had made a
specific request for conducting his DNA profiling to show that he was
innocent. However, the investigating agency failed in its duty and DNA
testing was not done. As noted earlier Chaman Lal has since died.
Appeal qua him has abated. The controversy qua Chaman Lal is not
under consideration. Moreover, request by Chaman Lal for DNA
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testing is of no avail to the appellant – Dheeraj Kumar, who has
admittedly not made any such request. The prosecutrix has rendered a
consistent version qua the commission of offence as far as the appellant
– Dheeraj is concerned. There is nothing on record to discredit her
testimony in this regard. Injuries on the person of the victim as well as
the medical evidence on record corroborate her stand. The victim was
admitted to the Civil Hospital on 14.01.2008 at 10.25 p.m. Intimation
was sent to the police by the hospital authorities on 14.01.2008 and
thereafter a reminder on 15.01.2008 pursuant to which the statement of
the victim was recorded and prosecution set in motion. Thus, keeping
in view the entire conspectus of the facts and circumstances, it is held
that the prosecution has proved its case beyond reasonable doubt
against the appellant – Dheeraj Kumar who has been rightly convicted
by the learned trial Court vide impugned judgment dated 20.07.2013.
There is, however, merit in the argument raised by the
appellants for reduction of the sentence imposed upon the appellant –
Dheeraj Kumar, who has been sentenced to undergo rigorous
imprisonment for ten years for the offence punishable under Section
376 (2)(g) IPC.
It is relevant to note that the incident in question relates to
January, 2008 i.e. before the amendment in the relevant provisions
under Section 376 IPC in February, 2013. As per the un-amended
provision a minimum sentence of ten years is provided for an accused
convicted under Section 376 (2)(g) IPC. The Court for adequate and
special reasons to be mentioned in the judgment may, however, impose
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a sentence of imprisonment of either description of less than ten years.
Explanation 1 of the un-amended provision explains that where a
women is raped by one or more in a group of persons acting in
furtherance of their common intention, each of the persons shall be
deemed to have committed gang rape within the meaning of this sub-
section. It is pertinent to mention that appeal preferred by Chaman Lal,
who had raised a specific ground of his DNA test not being conducted
despite requests, stands abated. The merits or otherwise thereof are not
being deliberated upon by this Court. For reasons mentioned in the
subsequent paras, prosecution case against the co-accused Paramjit Kaur
@ Sukhi has been found to be doubtful. It is not in dispute that the
appellant – Dheeraj Kumar had barely attained majority at the time of
the alleged incident. He is not involved in any other criminal case –
either prior or subsequent to the present case. As per the custody
certificate dated 18.11.2017, the appellant – Dheeraj Kumar has
undergone actual imprisonment of seven years, nine months and four
days of the sentence imposed upon him as on 17.11.2017. In case, the
period of remission is included the imprisonment undergone is eight
years, nine months and four days. As noted above, the incident in
question relates to the year 2008 when the un-amended provisions of
the IPC are applicable, there is thus no impediment in reducing the
sentence imposed upon the appellant.
In view of the above said circumstances, I find it a fit case
to reduce the sentence imposed upon appellant – Dheeraj Kumar from
that of ten years to the period already undergone by him.
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However, in respect to the appellant – Paramjit Kaur @
Sukhi, the prosecution has not been able to discharge its burden to
prove its case beyond reasonable doubt. It is relevant to note that the
appellant – Paramjit Kaur was found innocent in an inquiry conducted
by Ms. Dhanpreet Kaur, IPS. As per the said report (Ex.D1), it was
found that the allegations against Paramjit Kaur were not substantiated
by any evidence on record, thus, being found innocent she was placed
in column No. 2. She was summoned to face trial as an additional
accused on an application under Section 319 Cr.P.C. As per inquiry
report (Ex.D1), it was found that Paramjit Kaur was not present at her
residence at the time of the incident. There is nothing on record to
discredit the officer, who conducted the inquiry. Evidence on record
does not lead to an irrefutable inference about complicity of the
appellant – Paramjit Kaur in the commission of the offence. There is
weight in the argument of learned counsel for the said appellant that it
is highly improbable that the other co-accused would have been
facilitated in the commission of such an offence by the appellant. She is
the wife of one of the appellants and an aunt of the other appellant. A
palpable and reasonable doubt is raised regarding the complicity of the
appellant – Paramjit Kaur in this case. The victim PW3 and her mother
PW4 in their testimonies before the learned trial Court stated that they
were duly tutored by their counsel before recording of their statements
before the learned trial Court. In the facts and circumstances of the
case, it is not safe to rely solely on the testimony of the victim to
convict Paramjit Kaur @ Sukhi. A palpable and reasonable doubt is
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cast on the prosecution version qua the appellant – Paramjit Kaur @
Sukhi who is, thus, entitled to the benefit of doubt.
Conviction of the appellant – Dheeraj Kumar @ Sonu is
upheld. However, sentence of ten years imposed upon him is reduced to
that already undergone by him. Fine imposed upon him and the
imprisonment in default is maintained. Accordingly, CRA-S-3163-SB
of 2013 is dismissed with the modification in the sentence imposed
upon the appellant. The appellant – Dheeraj Kumar is in custody. He be
released forthwith, if not required in any other criminal case.
Impugned judgment and order dated 20.07.2013 passed by
the learned Additional Sessions Judge, Ludhiana qua the appellant –
Paramjit Kaur @ Sukhi is set aside. Consequently, the appellant –
Paramjit Kaur @ Sukhi is acquitted of all the charges against her. The
appellant – Paramjit Kaur alias Sukhi is on bail. Bail bonds and surety
furnished by her shall stand discharged.
Accordingly, CRA-S-3769-SB of 2013 qua Chaman Lal
stands abated and is allowed qua Paramjit Kaur @ Sukhi.
(Lisa Gill)
November 27 , 2017 Judge
rts/om
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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