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Jagan Nath vs State Of Haryana And Ors on 9 February, 2018

CRM-M No.7535 of 2015 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRM-M No.7535 of 2015
Decided on: 09.02.2018

Jagan Nath (since deceased) represented through his LRs

….Petitioner
Versus

State of Haryana and others
….Respondents

CORAM: HON’BLE MR JUSTICE ARVIND SINGH SANGWAN

Present : Mr. R.S. Mamli, Advocate
for the petitioner.

ARVIND SINGH SANGWAN, J.

Prayer in this petition is for quashing the order dated

10.12.2013 passed by the trial Court (Annexure P2) dismissing the

criminal complaint No.87-I of 2011 filed by the petitioner under

Sections 420, 379, 392, 365 and 511 of the Indian Penal Code (in short

‘IPC’) as well as the order dated 20.11.2014 (Annexure P4) passed by

the Additional Sessions Judge, Fatehabad, dismissing the revision.

Brief facts of the case are that the petitioner/complainant –

Jagan Nath has filed a criminal complaint before the trial Court against

respondents No.2 to 4 with the allegation that marriage of the son of the

petitioner namely Naresh Kumar was solemnized with respondent No.4

– Savita Rani. On the very next date of the marriage, he found his son

to be in a depressed state and on enquiry, it was disclosed that

respondent No.4 – Savita Rani is not a normal female and her

secondary sexual genital is not developed and, therefore, the marriage

between them was never consummated. The respondent No.4 was

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medically examined and her ultrasonography was done at Medical

College, Agroha on 26.02.2012 and it was found that uterus and ovaries

of respondent No.4 is very small and there is absence of menstrual

cycle. It is further stated in the complaint that respondent No.4 – Savita

Rani left for her parental home and then served a legal notice on

18.03.2010 to the son of the petitioner. Thereafter, the son of the

petitioner filed a petition under Section 12(1) of the Hindu Marriage

Act for declaring the marriage as nullity which is pending before the

District Courts at Fatehabad. The respondent No.4 got an FIR No.89

dated 25.03.2012 registered against the petitioner and his family at

Police Station Tilak Nagar (West) Delhi on account of demand of

dowry. It is further alleged that in pursuance to the FIR, on 03.11.2011

Delhi Police arrived at the house of the complainant and took away the

complainant, his son and his two daughters-in-law namely Meenakshi

and Kanchan. The accused persons have snatched some money and

gold jewellery and thus, have committed the offence punishable under

Sections 420, 379, 392, 365 and 511 IPC.

The complainant in his preliminary evidence examined

himself as CW1 and deposed on the line of the allegations made in the

complaint. He also tendered legal notice dated 18.03.2010 as Ex.P1,

copy of reply dated 21.04.2010 as Ex.P2 and the notice issued by the

Delhi Police under Section 160 Cr.P.C. as Ex.P3. The complainant

further examined Amrik Singh as CW2 who stated that the complainant

has purchased gold ornaments from him as per bill Ex.CW2/A. CW3 –

Dr. R.K. Bishnoi, Professor, Department of Radiology, Medical College

Agroha proved the ultrasonography report of Sita Devi wife of Naresh

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CRM-M No.7535 of 2015 3

as Ex.CW3/A.

Thereafter, the trial Court called for a report under Section

202 Cr.P.C. from the police and the report was submitted on

29.10.2013. The trial Court, thereafter, vide order dated 10.12.2013

refused to issue process against the accused persons for the following

reasons:-

“5. After hearing the contentions advanced by
learned counsel for the complainant, perusing the
complete evidence of preliminary stage, in juxtaposition of
the report filed by the local police under section 202 of
Cr.P.C., I reach a conclusion that it is not a fit case to
issue process against the accused. The reasons for my
opinion are as under:-

(i) The main grievance of the complainant appears
to be abnormality of the accused no.3, allegedly connected
with sexual capability as a female. The complainant
alleges that she was found to be an eunuch instead of a
female, as a result of which his son Naresh failed to enjoy
the matrimonial life. In this regard, the complainant has
got examined Dr. R.K.Bishnoi, Professor, Medical College,
Agroha as CW3, who has proved the ultrasonography
report as Ex.CW3/A. But this report does not reflect
anything to conclude that the said person examined by her
on dt. 26.02.2010 was an eunuch. Though, there was
observation recorded regarding smaller size of the uterus
and both ovaries, but it is not sufficient to conclude the
person examined was an eunuch, nor such opinion has
been given by CW3 Dr. R.K.Bishnoi. As such, without the
opinion of an expert, the complainant has failed to prove
that the accused no.3 was a female so abnormal as
incapable of performing sexual act. Besides that, CW3 has
stated that the said person was Sita Devi wife of Naresh,

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CRM-M No.7535 of 2015 4

whereas the allegations have been advanced against
Savita Rani daughter of Rajender and a connectivity
between the two identities has not been established by the
complainant and as such, the preliminary evidence is
fatally discrepant on a major issue involved in the present
lis.

(ii) The complainant has then alleged that on dt.
03.04.2011, the accused tried to abduct his son Naresh
Kumar and two daughters-in-law, namely Meenakshi and
Kanchan, whereby they were successful to abduct Naresh
Kumar, with the help of police of Police Station Tilak
Nagar (West), Delhi. But it is admitted on the part of the
complainant that an FIR no. 89 dt. 25.03.2011 was lying
registered with the said police station. In pursuance of the
same, any illegal act on the part of police, cannot be made
an issue to be challenged vide the present proceedings.
Besides that, none of the two daughters-in-law, namely
Meenakshi and Kanchan has entered the witness-box to
support the allegations of the complainant, what to talk of
getting examined an independent witness to that effect. In
this scenario, the allegations of the complainant appear
false and frivolous.

(iii) Last, but not the least, the conclusion derived
by the local police vide its report under section 202 of
Cr.P.C. has also negated the allegations of complainant.
No evidence was led by the complainant after filing of the
said report, to allege anything against the proceedings
conducted by the police under section 202 of Cr.P.C. As
such, this Court has nothing to deviate from the
conclusion derived by the local police. At the cost of
repetition, the evidence of the complainant has been so
inherently deficient and materially discrepant, as not to
make a case for issuance of process against the accused.

5. In view of whole of my above discussion, the

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complaint in hand is found devoid of merits. The same is
dismissed.”

Thereafter, the petitioner filed a revision before the

Additional Sessions Judge and the Additional Sessions Judge, vide its

order dated 20.11.2014 after issuing notice to the respondents dismissed

the revision petition. Hence, the present petition has been filed

challenging the aforesaid orders passed by the Courts below.

Counsel for the petitioner has submitted that from the

preliminary evidence led by the petitioner, it has come on record that

the respondents have committed the offence punishable under Sections

420, 379, 392, 365 and 511 IPC, as it is proved that respondent No.3

has not developed the secondary sexual characters of being a female

and she is incapable of performing sexual intercourse. It is further

stated that in fact the respondent No.3 is not a female and is rather an

Eunuch and, therefore, by concealing the status of respondent No.3, the

accused persons have cheated the complainant and his son.

Counsel for the petitioner has further submitted that as per

the ultrasonography report Ex.CW3/A proved by CW3 – Dr. R.K.

Bishnoi, it is observed in the report that the uterus and both ovaries

were of smaller size. It is also stated that while the Delhi Police took

the petitioner, his son and his family members in custody, the accused

persons have taken away some cash and gold articles.

After hearing counsel for the petitioner, I find no merit in

the present petition for the following reasons:-

1. Firstly, the perusal of the report Ex.CW3/A
nowhere suggest that by mere reporting of the smaller size
of the uterus and both ovaries, it can be concluded that the

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lady who was examined was incapable of performing
sexual intercourse. In fact, no specific opinion has been
given by CW3 – Dr. R.K. Bishnoi and rather this witness
has not examined Savita Rani himself on 26.02.2010. No
expert opinion from any Gynecologist was obtained in this
regard and, therefore, both the Courts below have rightly
concluded that there is no evidence on record to prove that
in fact respondent No.3 is not a female and is an Eunuch
as stated by the complainant.

2. It may also be noticed that as per the
statement of CW3, the report Ex.CW3/A, relates to a lady
named Sita Devi wife of Naresh whereas as per the array
of respondents in the complaint and as per the statement
of CW1, wife of Naresh Kumar is Savita Rani daughter of
Rajinder and, therefore, the Courts below have rightly
held that even the identity of the lady who was examined
for ultrasonography as per the report Ex.CW3/A is not
proved and the evidence of the prosecution in this regard
is shaky.

3. Admittedly, an FIR No.89 dated 25.05.2011
was registered in Police Station Tilak Nagar (West) Delhi
at the instance of Savita Rani and police had arrested the
petitioner, his son and his family members and, therefore,
the allegation that while arresting them the police or the
complainant party have taken the cash and gold articles is
not at all proved from the statement of the complainant.

4. Even, as per the version of the complainant,
when Delhi Police came to arrest him, the police has taken
her two other daughters-in-law namely Meenakshi and
Kanchan along with the complainant and his son.
However, none of these two ladies entered into the witness-
box to support the allegation of the complainant and no
other independent witness was examined.

5. Even the police report under Section 202

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CRM-M No.7535 of 2015 7

Cr.P.C. based, on verification, found the allegation of the
complainant to be false. The complainant has failed to
prove that he has taken any action subsequent to the
report submitted by the police under Section 202 Cr.P.C.
and therefore, the said report has attained finality.

In view of the above, I find that both the Courts below

have rightly held that the complainant has failed to lead any cogent and

reliable evidence against the accused persons to make out a case for

issuance of process against them. Therefore, finding no illegality or

irregularity in the orders passed by the Courts below, the present

petition is dismissed.

09.02.2018 (ARVIND SINGH SANGWAN)
yakub JUDGE

Whether speaking/reasoned Yes/No
Whether reportable: Yes/No

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