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
1 of 7
04-03-2018 09:38:02 :::
CRM-M No.7535 of 2015 2
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
2 of 7
04-03-2018 09:38:05 :::
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,3 of 7
04-03-2018 09:38:05 :::
CRM-M No.7535 of 2015 4whereas 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
4 of 7
04-03-2018 09:38:05 :::
CRM-M No.7535 of 2015 5complaint 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 the5 of 7
04-03-2018 09:38:05 :::
CRM-M No.7535 of 2015 6lady 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
6 of 7
04-03-2018 09:38:05 :::
CRM-M No.7535 of 2015 7Cr.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
7 of 7
04-03-2018 09:38:05 :::