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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CRR No. 2593 of 2014 -5-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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CRR No. 2593 of 2014 -9-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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CRR No. 2593 of 2014 -10-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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