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Jyoti vs State Of Haryana on 1 October, 2018

CRR No. 2593 of 2014 -1-

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

CRR No. 2593 of 2014 (OM)
Date of decision : 1.10.2018

Jyoti
…………….Petitioner

vs.

State of Haryana
……………..Respondent

Coram: Hon’ble Mr. Justice H. S. Madaan

Present: Mr. Vikas Kumar, Advocate for the petitioner.

Mr. Neeraj Poswal, Assistant Advocate General,
Haryana.

H. S. Madaan, J.

This revision petition is directed against observations

made in judgment dated 2.7.2014 passed by Additional Sessions

Judge, Special Court, Sonepat, for issuance of show cause notice to

petitioner Jyoti for initiating proceedings under Section 344 Cr.P.C.

Briefly stated, facts of the case are that accused Amarpal

faced trial by Additional Sessions Judge, Special Court, Sonepat, for

offences under Sections 498-A/34, 406/34, 376 IPC, read with

Sections 511 and 506 IPC, and vide judgment dated 2.7.2014, he was

acquitted of the charge.

Complainant Jyoti had lodged FIR in question on the

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allegations that she was married with Dharambir s/o accused Amarpal

on 11.12.2012. At that time, her parents had given dowry beyond

their capacity. Her husband was still studying and was not doing any

job. Soon after her marriage, the complainant was harassed and

maltreated by her father-in-law Amarpal, as well as her mother-in-law

and sisters-in-law, in connection with demand of dowry. She was

even given beatings. She was turned out of the matrimonial house,

retaining her istridhan articles. The complainant had submitted a

written complaint to the police on the basis of which formal FIR

under Sections 498-A, 406 and 506 IPC was recorded. Investigation

in the case started, during the course of which, complainant expressed

her desire to return to the matrimonial home and furnished an

affidavit that no action should be taken against her in-laws family. A

cancellation report was prepared on 31.5.2013. On 27.11.2013 the

complainant again submitted a complaint to SHO Kharkhoda, that

after settlement was arrived at between the parties and she had

returned to the matrimonial home, only 5 days thereafter, her in-laws

again started harassing her on account of demand of dowry and on

18.6.2013 when she was sleeping alone in her room and her husband,

mother-in-law and sisters-in-law had gone to Khatu Shyam, then her

father-in-law Amarpal knocked at the door of her room; the time was

about 11-12 P.M. The complainant opened the door. Finding that

intention of the accused was not good, she scolded him and the

accused left her room. On 19.6.2013 at about 12.00 night, when the

prosecutrix was taking rest in her room, then accused suddenly came

there and started outraging her modesty. The complainant pleaded

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with him not to do so, but he did not listen and rather attempted to

commit rape upon her, by removing clothes of complainant and his

own pyjama. The complainant pushed him by giving kicks due to

which he fell down on a side and the complainant managed to run out

of the room. Thereafter, the accused also slipped away. He returned

home in the evening and felt sorry for his behaviour, pleading the

complainant not to disclose the incident to anybody. But the

complainant narrated the entire incident to her husband, mother-in-

law and sisters-in-law, when they came back from Khatu Shyam on

20.6.2013. But they extended threats to her and also gave beatings to

her. On the basis of that complaint offence under Section 376 IPC

read with Section 511 IPC was added.

Statement of the complainant was got recorded under

Section 164 Cr.P.C. before the Magistrate. The accused was arrested

in this case on 27.11.2013. The complainant, as well as accused were

got medically examined.

Dharambir accused was arrested. After completion of

investigation, Amarpal accused was challaned and sent up to face

trial, whereas challan against his co-accused Dharambir who was

found to be a juvenile, was presented before Juvenile Justice Board,

Sonepat.

On presentation of challan copies of documents relied

upon therein were supplied to the accused free of cost, as provided

under Section 207 Cr.P.C. Then the case was committed to the court

of Sessions. The accused was charge sheeted for the offence under

Sections 498-A/34, 406/34, 376 read with Sections 511 and 506 IPC,

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to which he pleaded not guilty and claimed trial.

During the course of its evidence, the prosecution examined

as many as 12 witnesses, namely, PW-1 Constable Kavita, PW-2

complainant -prosecutrix, PW-3 Rajbala, mother of the prosecutrix,

PW-4 Satish Kumar, cousin brother of the prosecutrix, PW-5 Sh.

Ashutosh, Judicial Magistrate Ist Class, Sonipat, PW-6 Inderpal,

Draftsman, PW-7 ASI Daya Nand, PW-8 Shyam Sunder, PW-9 Dr.

Bijender Hooda, PW-10, Inspector Somveer, PW-11 Constable

Naresh, PW-12 P/SI Naveen. Whereas two witnesses had been given

up. With that the prosecution evidence got concluded, after tendering

certain documents.

Statement of the accused was recorded under Section 313

Cr.P.C., in which all the incriminating circumstances appearing

against the accused were put to him, but he denied the allegations,

pleading innocence. The accused did not adduce any defence

evidence.

After hearing arguments, the trial Court acquitted the

accused of the charges framed against him. In the judgment tin

paragraphs 13, 14 and 15, conduct and testimony of the complainant

have been discussed. For ready reference, they are being reproduced

as under:-

“13. Before parting with the judgment; I deem it

necessary to refer again to the testimony and

conduct of prosecutrix. She took a U-turn and did

not implicate the accused in the subject offences in

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her sworn deposition. She admitted her signatures

on Ex. PW2/ A and Ex. PW2/B but denied making

the same and stated that police had obtained her

signatures on blank papers. With regard to her

statement Ex.PW2/C as recorded under section

164 Cr.P.C., she stated that same had been made

under the threat of SI Naveen and HC Ashok. She

however stated that she did not make any

complaint of the said police officials to their

superior officers. It is quite common nowadays

that witnesses while supporting the prosecution

version at the investigating stage of the case by

giving a version there, take a complete U-turn at

the trial by not supporting the prosecution, thereby

making the case to fall for want of evidence. This

practice has become a menace in the criminal

judicial system. The Hon’ble Apex Court had dealt

with this practice very heavily in case of ‘Zahira

Habibulla Sheikh (1) Vs. State of Gujarat 2004

(4) SCC 158 by making following observations:

” Serious questions arise as to the role’ played by

witnesses who change their versions more frequently,

than chameleons. Zahira’s role in the whole case

is an eye-opener for all concerned with the

administration of criminal justice. As

highlighted at the threshold, the criminal justice

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system is likely to be affected if persons like

Zahira are to be left unpunished. ”

The Hon’ble Supreme Court held, Zahira guilty

of perjury. and sentenced her to undergo simple

imprisonment for one year and to pay a fine of

Rs. 50,000/-, in case of default of payment of

fine within two months, she was ordered to

further undergo imprisonment of one year.

15. The provisions of section 344 have been

enacted in the Code of Criminal Procedure to

further arm the court with a weapon to deal with

more flagrant cases and not to take away the

weapon already in its possession and to eradicate

the evil of perjury. For exercising the power

under section 344 Cr.P.C., the court at the time

of delivery of judgment or final order must at the

first instance express the opinion to the effect

that the witness before it has either intentionally

given false evidence or fabricated evidence. The

second condition is that the court must come to

the conclusion that in the interest of justice, the

witness concerned should be punished

summarily by it for the offence which appears to

have been committed by the witness. The third

condition is that before commencing the

summary trial for punishment, the witness must

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be given reasonable opportunity of showing

cause why she/he should not be so punished. All

these conditions are mandatory. The object of the

provision is to deal with the evil of perjury in a

summary way. In Mahila Vinod Kumar’s case

(Supra) , the Hon’ble Apex Court further

observed that section 344 should be used

effectively and frequently to stop the menace of

perjury which has bearing on alarming rise. The

trial court can not be mute spectator to the

statement of these witnesses when the witnesses

are intentionally giving false evidence. Action

should be taken under the relevant provisions of

law against such witnesses, so that the

administration of criminal Justice does not

suffer. Similar observations were made by our

Hon’ble High Court in case titled as Krishan

and others Vs. State of Haryana, 2005(2) RCR

(Criminal) 109 wherein the law was set into

motion on the registration of the FIR by PW-8 At

the trial, this witness supported the case of” the

prosecution. His cross examination was deferred

and when cross-examined subsequently, he

resiled from his statement oil the basis of which

FIR Was registered.”

Paragraph 17 is also quite relevant and is being

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reproduced as under:-

“17. Now, coming back to this case. In the

present case, the prosecutrix took a somersault in

the course of her statement which was recorded

in the court by stating that she did not move

complaint Ex.PW2/A and Ex.PW2/B to the

police and made statement Ex. PW2/C under the

pressure of the police officials. It is, however,

clear from the testimony of PW -5 Shri

Ashutosh, Judicial Magistrate Ist Class, Sonipat,

that he had ensured that the prosecutrix was

making a’ voluntary statement. She stated that SI

Naveen and HC Ashok threatened her to give

such statement. However, there is nothing on

record to show that she had reported this fact to

the higher police authorities or made any

complaint in this regard. There is nothing on

record to show as to why these police officials

would falsely implicate the accused unless it was

the version of complainant/prosecutrix. Thus,

placing reliance upon the above stated

authorities, it is held that prosecutrix PW-2 had

tendered a false and fabricated evidence against

the accused with an intention that such evidence

shall be used in the proceedings. It is in the

interest of justice that PW-2 prosecutrix should

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be punished summarily by this court for the.

offence which she appears/happened to have.

committed. Therefore, it is directed that

cognizance of offence in terms of section 344

Cr.P.C. be taken against her for the purpose of

eradication of evil of . perjury as well as notice

to PW -2 prosecutrix for showing cause as to

why. she should not be punished is ordered to be

issued. Separate proceedings in this regard are

ordered to be initiated accordingly. Ahlmad is

directed to place a copy of this judgment on the

file concerned for initiating separate proceedings

under section 344 Cr.P.C. After due compliance

file be consigned to records.”

Feeling aggrieved by such observations and issuance of

notice under Section 344 Cr.P.C., the complainant has preferred the

present revision petition, which is being opposed by the State

counsel.

I have heard learned counsel for the petitioner, learned

State counsel, besides going through the record.

Section 344 Cr.P.C. deals with summary procedure for

trial for giving false evidence. For ready reference, the same is

reproduced below:-

“Summary procedure for trial for giving false

evidence

1) If, at the time of delivery of any judgment or

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final order disposing of any judicial proceeding, a

Court of Session or Magistrate of the first class

expresses an opinion to the effect that any witness

appearing in such proceeding had knowingly or

willfully given false evidence or had fabricated

false evidence with the intention that such

evidence should be used in such proceeding, it or

he may, if satisfied that it is necessary and

expedient in the interest of justice that the witness

should be tried summarily for giving or

fabricating, as the case may be, false evidence,

take cognizance of the offence and may, after

giving the offender a reasonable opportunity of

showing cause why he should not be punished for

such offence, try such offender summarily and

sentence him to imprisonment for a term which

may extend to three months, or to fine which may

extend to five hundred rupees, or with both.”

Here in the present case, though the complainant is not

shown to have supported the case of prosecution, but while directing

issuance of notice under Section 344 Cr.P.C. , the trial Court has not

recorded any satisfaction that it is necessary and expedient in the

interest of justice that the witness should be tried summarily for

giving or fabricating, false evidence. Unless, it was so done, notice

under Section 344 Cr.P.C. could not have possibly being issued to the

complainant. Merely resiling from earlier statement, does not call for

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action being taken under Section 344 Cr.P.C.

It being so, the revision petition calls for acceptance and

portion of the judgment with regard to issuance of notice to the

petitioner for initiation of proceedings under Section 344 Cr.P.C. is

found to be untenable and against the law. Therefore, the same is set

aside by way of acceptance of the revision petition.

( H.S. Madaan )
1.10.2018 Judge
chugh

Whether speaking / reasoned Yes / No

Whether reportable Yes / No

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