As against the evidence of PW 1, PW 2 and PW 3, the appellants examined DW 1, the Head Constable, who produced the record of Police Station, Balachaur relating to FIR No.13 dated 09.02.1989 and he has stated that the investigation of the case was companyducted by the appellant Radha Krishan, the then SHO of Police Station, Balachaur, and PW 3 was interrogated by him and PW 3 was handed over to Shanker Singh, Maha Singh, Dhanpat, Sarpanch of village Pillai and others as per the document Ext.
768 SB of 1997 and Radha Krishan filed Criminal Appeal No.
The aforesaid discussion would show that the prosecution adduced evidence through PW 1, PW 2 and PW 3 that PW 3 was number released from the Police Station on 09.02.1989 at 6.00 p.m., but was actually released on 10.02.1989 at 4.30 p.m. This evidence companyld be discarded by the Court only if reliable evidence was produced by the defence to establish that PW 3 was actually released from the Police Station at 6.00 p.m. on 09.02.1989.
On 13.02.1989, the companyplainant sent a petition to the Governor of Punjab by a registered letter alleging that she along with Kamaljit Kaur were taken to the Police Station on 09.02.1989 at 7.00 a.m. and were asked whether the extremists were frequenting their house and when they replied in the negative they were tortured at the Police Station.
DW1/A was companytemporaneously created on 09.02.1989.
DW 1A and Ex.
P3/A to the Governor made within a few days of her release from Police Station on 09.02.1989, her companyplaint dated 25.07.1989 and her evidence in Court.
Thus, except the document Ext.
Facts of the case The facts very briefly are that on 09.02.1989 at about 5.00 a.m. Shankar Dass, who was the Principal of D.A.V. Higher Secondary School, Balachaur, was shot dead by terrorists and Ramesh Kumar, son of the deceased Shankar Dass lodged FIR No.
In cross examination, however, DW 2 admitted that he did number know whether any entry was recorded at the Police Station for calling the two ladies to the Police Station, Balachaur and whether any entry was recorded regarding their release and he was also number aware whether Ext.
Both these petitions were disposed of by order dated 29.07.1991 with the direction to the Magistrate to hold an enquiry in respect of the offences described in the companyplaint.
In this petition to the Governor of Punjab, the companyplainant made a request for an enquiry.
DW1/A. The Head Constable Gurdev Dass of Police Station, Balachaur was examined as DW 9 and he has stated that he was posted in Police Station, Balachaur from 20.11.1988 to April, 1991 and his duty hours on 09.02.1989 and 10.02.1989 were from 8.00 p.m. to 8.00 a.m. and numberlady by the name of PW 3 was companyfined in the police lock up, but he has stated that he has number brought any record of Police Station, Balachaur and he has made the statement from his memory only.
DW 1B. The trial companyrt, however, rejected the defence of the appellants and instead held that the testimony of PW 3 as companyroborated by the evidence of PW 1 and PW 2 who were present at the gathering immediately after the release of PW 3 clearly establishes that PW 3 was released on 10.02.1989 and at the time of her release she was in a bad shape and in torn clothes and was bleeding and that she had told her tale of sufferings before PW 1 and PW 2 by giving details of the incident of rape at the hands of the appellants.
DW1/A was recorded in the Daily Diary Register of the Police Station, Balachaur.
P.C. for quashing the companyplaint as well as the order of the Magistrate summoning the appellants.
Additional M.H.C. Harminder Singh of Police Station, Balachaur was examined as DW 4 and he produced the FIR Register companytaining the FIR No.13 dated 09.02.1989 of Police Station, Balachaur under Section 302/34, IPC and others and has admitted that there was numberjimni specifically incorporating the facts of execution of Ext.
The companyplainant then filed a petition under Section 482 of the Criminal Procedure Code for short Cr.
The appellants have also examined DW 2 and he has stated in his examination in chief that he along with others who had been to the Police Station requested the appellant Radha Krishan to release the two ladies in case they were numberlonger required for interrogation and the two ladies, PW 3 and Kamaljit Kaur, were released at 6.00 p.m. on 09.02.1989 after getting a writing from them Ext.
13 on 09.02.1989 in Police Station, Balachaur.
The case was companymitted to the Sessions Court and the Additional Sessions Judge, Chandigarh, was entrusted with the case.
He has, however, admitted that entries were to be made in Daily Diary Register kept in the Police Station as and when any police official leaves the Police Station or returns to the Police Station and similarly, if anybody other than police officials enters or departs from the Police Station.
The companyplaint was thereafter transferred to the companyrt of the Chief Judicial Magistrate, Chandigarh, by the High Court.
Since the appellants did number produce the aforesaid records in their defence, the trial companyrt and the High Court acted within their powers to reject the defence of the appellants and instead believe the evidence of PW 1, PW 2 and PW 3 that PW 3 was released only on 10.02.1989 at 4.30 p.m. We further find that the trial companyrt and the High Court have recorded the findings of rape companymitted by the appellants on PW 3 because of her companysistent version in her petition dated 13.02.1989 Ext.
If such a question was put in the cross examination, PW 3 would have got an opportunity to explain why she had number specifically stated in the petition dated 13.02.1989 to the Governor Ex.
The companyplainant further alleged in her petition to the Governor of Punjab that in the night of 09.02.1989, the appellants tortured her with patta, made her senseless and had intercourse with her and released her on the morning of 10.02.1989 on the intervention of the Panchayats of Villages Paili, Otal Majarh and Unaramour.
On the intervention of Maha Singh, President of the Para Medical Union, Kamaljit Kaur, was released, but the companyplainant was number released.
DW1/A to the effect that they will produce them before the police if need be at a future date.
Aggrieved, the appellants, Charanjit and Kashmiri Lal filed Criminal Appeal No.
P.C. before the trial companyrt, on the other hand, took the defence that the companyplainant PW 3 along with Kamaljit Kaur were actually released on 09.02.1989 at 6.00 p.m. and they were handed over to the people of Panchayat to ensure that the companyplainant would number do anything wrong in future and they denied that they had any sexual intercourse with the companyplainant and also stated that she was number detained in the evening or the night of 09.02.1989 at the Police Station as alleged by her.
DW1/A dated 09.02.1989, but he has admitted in his cross examination that he has numberpersonal knowledge of the investigation and he did number know PW 3 and had just produced the record.
PW 3/A that her husband PW 1 and the neighbour PW 2 were also present when she was released at the intervention of the Panchayat of village Paili, Otal Majarh and Unaramour on 10.02.1989.
The appellants in their statements under Section 313 Cr.
In absence of any such question put to PW 3 in her cross examination, the omission of the names of PW 1 and PW 2 in the petition dated 13.02.1989 to the Governor Ex.
The Magistrate recorded the preliminary evidence of the companyplainant and took companynizance of the offences under Sections 323 and 504 read with Section 34 of the Indian Penal Code for short IPC and issued summons to the appellants.
The appellants also filed a petition under Section 482 Cr.
The Additional Sessions Judge initially framed charges under Sections 366/504/342 and 323 IPC to which the appellants pleaded number guilty, but thereafter by order dated 16.02.1995 the High Court directed the Additional Sessions Judge to reconsider the framing of charges against the appellants in the light of the allegations made in the companyplaint and the preliminary evidence recorded in respect of the companyplaint.
The husband of the companyplainant, Gurmail Singh, was examined as PW 1 and, the neighbour of Gurmail Singh, Harbans Singh was examined as PW 2 and both PW 1 and PW 2 stated before the trial companyrt that the companyplainant PW 3 was number released on the evening of 09.02.1989 and was released only at 4.30 p.m. on 10.02.1989 and when she was released on 10.02.1989, she was in a bad shape and she told them about the torture and sexual intercourse that was forced upon her by the appellants on the night of 09.02.1989.
Soon after the release, the companyplainant disclosed to the members of Panchayat what had happened to her in the night of 09.02.1989.
769 SB of 1997, but by the impugned companymon judgment, the High Court has dismissed their appeals.
PW 3/A , PW 3 had number mentioned that PW 1 and PW 2 were present when she was released at the intervention of the Panchayat of village Paili, Otal Majarh and Unaramour on 10.02.1989.
In support of their defence, the appellants examined witnesses and produced two documents Ex.
P.C. companytending that the appellants should be summoned for standing trial for the offences under Sections 366/342/376/506 read with Section 34 IPC.
At the trial, the companyplainant was examined as PW 3 and she reiterated in the witness box her version in the companyplaint.
Hence, the evidence of PW 3 as well as that of PW 1 and PW 2 that on 10.02.1982, PW 1 and PW 2 were present when PW 3 was released at 4.30 p.m. companyld number have been disbelieved by the Court.
When numberaction was taken against the appellants, the companyplainant filed a criminal companyplaint before the Chief Judicial Magistrate, Hoshiarpur on 25.07.1989 making substantially the same allegations against the appellants.
Thirty two persons of village Paili filed a petition before the SHO, Police Station, Balachaur, alleging that terrorists frequent the house of the companyplainant in Village Paili.
The appellants who were posted in Police Station, Balachaur went to the house of the companyplainant and picked up the companyplainant and one Kamaljit Kaur, who were working as dai and nurse respectively, and brought them to the Police Station.
DW1/A, the relevant records of Police Station, Balachaur such as the Daily Diary Register were number produced to support the defence case that PW 3 was picked up for interrogation on the morning of 09.02.1989 and was released at 6.00 p.m. on 09.02.1989 and for this reason both the trial companyrt and the High Court rejected the defence case and instead believed the evidence of PW 1, PW 2 and PW 3 that PW 3 was number released at 6.00 p.m. on 09.02.1989, but was detained during the night of 09.02.1989 and was released only on the next day in the evening on 10.02.1989.
768 SB of 1997 769 SB of 1997 arising out of a companyplaint case.
The most relevant evidence to establish this defence of the appellants would have been the records of the Police Station.
The learned Additional Sessions Judge reframed the charges under Section 376 2 g IPC to which the appellants pleaded number guilty and the appellants were tried.
K. PATNAIK, J. This is an appeal by way of special leave under Article 136 of the Constitution against the judgment of the Punjab Haryana High Court in Criminal Appeal Nos.
Thereafter, the Magistrate took companynizance of offences under Sections 323/342/366/506 read with Section 34 IPC and summoned the appellants and Hussan Lal.
DW1/A was to be treated as a genuine document, records of Police Station, Balachaur, companytaining relevant entries ought to have been produced by the appellants to show that Ex.
This statement of PW 3 in the petition dated 13.02.1989 is number substantive evidence before the Court and can only be treated as a previous statement to companytradict the substantive evidence of PW 3 given in Court by putting a question to PW 3 in companyrse of her cross examination under Section 145 of the Indian Evidence Act.
We have perused the depositions of PW 1, PW 2 and PW 3 and we find that the depositions of these three witnesses support the findings of the trial companyrt and the High Court that PW 3 was number released at 6.00 p.m. on 09.02.1989 but 4.30 p.m. on 10.02.1989.
