Before proceeding further, it would be relevant to note the law laid down in regard to the admissibility of recorded conversation and allowing the application for taking voice samples of the parties. As early as 1956, in Rup Chand vs. Mahabir Prasad AIR 1956 Punj. 173 it has been categorically held that a tape recorded version of a former statement of a witness is admissible in Evidence to shake the credit of the witness. Hon’ble Supreme Court in S. Pratap Singh vs. State of Punjab, AIR 1964 SC 72 held that the tape recorded version of a conversation was admissible in evidence to corroborate the evidence of witness who had stated that such a conversation had taken place.

“23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape-record. A contemporaneous tape- record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae.

Thus, in view of the above discussion it is clear that if an accurate tape-recorded version of the statement is produced in evidence, the same is relevant and admissible in evidence in case the recording is not tempered with and the voice is properly identified.

As the tape-recorded conversation is admissible under the law of evidence, the question before this Court is whether the Court can compel a person to give his/her voice samples for identification. Reliance on Rakesh Bisht (Supra) by the learned APP for State is misconceived, as in that case the application for taking voice samples for identification was allowed by the learned Trial Judge at the stage of investigation which is not the case in the present petition. The Petitioner’s application was dismissed after recording of Prosecution evidence.


 

     IN THE HIGH COURT OF DELHI AT NEW DELHI

+        Crl. Rev. P. 577/2009 & Crl. M.A. No. 12520/2009(Stay)

%                                                   Reserved on: 19th April, 2012
                                                    Decided on: 5th July, 2012

VINOD KUMAR @ VINOD KUMAR HANDA           ..... Petitioner
                 Through: Mr. Ram Lal, Advocate

                        versus

STATE GOVT. OF N.C.T. OF DELHI                 ..... Respondents

Through: Mr. Mukesh Gupta, APP for the State with SI Sunil Kumar, PS Tulghlak Road, Delhi.

Mr. Jaiveer Chaudhary, Advocate for Respondent No. 2.

Coram:

HON’BLE MS. JUSTICE MUKTA GUPTA

1. As the relief was sought against the prosecutrix who had not been impleaded as a party initially, this Court vide order dated 30 th September, 2011 directed the Petitioner to implead the prosecutrix as a party. Accordingly she was impleaded as Respondent No.2.

2. The Petitioner is facing trial for offence under Sections 313/493/495/306/376/494/120B IPC in case FIR No. 251/2001 registered at P.S. Tughlak Road. The allegations as set out by the prosecutrix who has been examined in the Court are that she got married to the Petitioner at Ambala whereafter he made relations with her. The Petitioner under the influence of liquor had sexual intercourse with the prosecutrix and he represented that he had divorced his earlier wife which fact was later found to be incorrect.

3. The defence of the Petitioner is that the prosecutrix of her free will was having a live-in-relationship with him. To prove his defence, the Petitioner during the cross-examination of the prosecutrix on 25th February, 2008 produced tape-recorded conversation of the prosecutrix wherein she had conceded her love affair with the Petitioner knowing fully well of his earlier marriage. The prosecutrix denied the voice recorded in the tape-recorded conversation to be her voice during cross-examination on 25th February, 2008. Thus, on 21st April, 2009 when the prosecution evidence was still going on, the Petitioner moved an application under Section 45 of the Evidence Act before the learned Trial Court seeking directions to record voice sample of the prosecutrix and to send the same to CFSL for identification of the voice. In the application, the Petitioner alleged that he was falsely implicated in this case and during the pendency of the trial, the prosecutrix used to make telephone calls and she also called the Petitioner to meet her at Gurudwara Bangla Sahib, Delhi on 31st July, 2004. During the conversation, she admitted having an affair with co-accused Vinod Kumar. He, thus, sought directions to record the voice sample of prosecutrix and to send the same for scientific identification. This application was kept pending and only on conclusion of the defence evidence on 1st October, 2009 it was noted that this application was pending. The learned Trial Court, after hearing the arguments, dismissed the application primarily on the ground that the prosecutrix has been cross- examined at length on different counts and no single question has been asked about the conversation. The learned Trial Court also observed that the application was filed only to delay the trial.

4. Aggrieved by the impugned order, the Petitioner filed the present petition seeking directions as prayed before the learned Trial Court. The contention of the Petitioner is that by denying the voice sample, fair trial as enshrined by the Constitution is denied to him. The tape-recorded conversation is a primary evidence duly admissible in law. It is like any previous statement which can be used to contradict the evidence given before the Court as well as to test the veracity of the evidence and to impeach the credibility of the witness.

5. Reliance is placed on the decision of the Constitution Bench in N. Sri Rama Reddy & Ors. Vs. The Attorney-General of India, AIR 1971 SC 1162 relying upon Yusufalli Esmail Nagree vs. State of Mahrashtra, AIR 1968 SC

147. It is contended that the conversation between the accused and the Complainant which is tape-recorded, is a contemporaneous evidence and is relevant under Section 8 Evidence Act. Further like a photograph of a relevant incident, a contemporaneous tape recording of a relevant conversation is a relevant fact under Section 7 of the Evidence Act. Relying on Dial Singh Narain Singh vs. Rajpal, AIR 1969 Punjab and Haryana 350 it is contended that for use of an earlier tape-recorded statement, the identification of the taped voice is crucial and indeed such proper identification of the voices is the sine qua non for the use of the said tape- recorded evidence. Where the voice is denied by the alleged maker thereof, a comparison of the same becomes inevitable and the proper identification of voices must be proved by a competent witness.

6. Learned APP for the State relying upon Rakesh Bisht vs. CBI, MANU/DE/0338/2007 contended that though there is no provision under the Indian Evidence Act, 1972 to deal with taking of voice sample, however, the investigating agency is permitted to take the same for the purpose of identification though an accused cannot be compelled to give the sample in case the conversation is incriminatory in nature. Thus, the learned Trial Court has rightly rejected the application of the Petitioner. The petition has no merit and is liable to be dismissed.

7. Learned counsel for Respondent No. 2, the prosecutrix contends that the application submitted by the petitioner for taking the voice samples of the prosecutrix contained no such telephone numbers with which the petitioner and the prosecutrix had conversations. It is further stated that during her cross-examination also no question in regard as to what conversation was made or in what manner it was made has been put to the prosecutrix. Thus the present petition has no merit and is liable to be dismissed.

8. I have heard learned counsel for parties. The main issue raised by the learned counsel for Petitioner is that the learned Trial Court has denied a fair trial to him by dismissing the application for recording the voice samples of the Prosecutrix. The Trial Court while dismissing the application has observed that the Prosecutrix was cross-examined at length and nothing as regard to the tape-recorded conversation was put to her and the application was nothing more than a method to delay the proceeding. This observation of the learned Trial Court is contrary to the record.

9. Before proceeding further, it would be relevant to note the law laid down in regard to the admissibility of recorded conversation and allowing the application for taking voice samples of the parties. As early as 1956, in Rup Chand vs. Mahabir Prasad AIR 1956 Punj. 173 it has been categorically held that a tape recorded version of a former statement of a witness is admissible in Evidence to shake the credit of the witness. Hon’ble Supreme Court in S. Pratap Singh vs. State of Punjab, AIR 1964 SC 72 held that the tape recorded version of a conversation was admissible in evidence to corroborate the evidence of witness who had stated that such a conversation had taken place.

In RM Malkani vs. State of Maharashtra, AIR 1973 SC 157 their Lordships observed:

“23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape-record. A contemporaneous tape- record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae.

29. It was said that the admissibility of the tape recorded evidence offended Arts. 20(3) and 21 of the Constitution. The submission was that the manner of acquiring the tape recorded conversation was not procedure established by law and the appellant was incriminated. The appellant’s conversation was voluntary. There was no compulsion. The attaching of the tape recording instrument was unknown to the appellant. That fact does not render the evidence of conversation inadmissible. The appellant’s conversation was not extracted under duress or compulsion. If the conversation was recorded on the tape it was a mechanical contrivance to play the role of an eavesdropper. In R.V.Leatham, (1861) 8 Cox C.C. 198 it was said “It matters not how you get it if you steal it even, it would be admissible in evidence” as long as it is not tainted by an inadmissible confession of guilt: evidence even if it is illegally obtained is admissible.”

Thus, in view of the above discussion it is clear that if an accurate tape-

recorded version of the statement is produced in evidence, the same is relevant and admissible in evidence in case the recording is not tempered with and the voice is properly identified.

10. As the tape-recorded conversation is admissible under the law of evidence, the question before this Court is whether the Court can compel a person to give his/her voice samples for identification. Reliance on Rakesh Bisht (Supra) by the learned APP for State is misconceived, as in that case the application for taking voice samples for identification was allowed by the learned Trial Judge at the stage of investigation which is not the case in the present petition. The Petitioner’s application was dismissed after recording of Prosecution evidence.

11. The Hon’ble Supreme Court in Vikas Kumar Roorkewal vs. State of Uttarakhand, 2011 (2) SCC 178 has held:

“22. The necessity of fair trial hardly needs emphasis. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases. The learned Judge has failed to take participatory role in the trial. He was not expected to act like a mere tape recorder to record whatever has been stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confers vast and wide powers on Court to elicit all necessary materials by playing an active role in the evidence collecting process. However, the record does not indicate that the learned Judge presiding the trial had exercised powers under Section 165 of the Evidence Act which is in a way complimentary to his other powers.”

12. Section 165 of the Evidence Act reads as under:

“165. Judge’s power to put questions or order production.- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, The Orient Tavern cross-examine any witness upon any answer given in reply to any such question.

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.

Provided also that this Section shall not authorize an Judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.”

13. This section is intended to arm the Judge with the most extensive power for the purpose of getting at the truth. The effect of this section is that in order to go to the root of the matter before it, the court has to look at and enquire into every fact before it. The exceptions to this wide power of judge are that the witness cannot be compelled to answer any question or produce any document contrary to Section 121 to 131 Evidence Act or any question contrary to Sections 148 or 149 Evidence Act and the Judge shall not dispense with primary evidence of any document except as provided before.

14. The Hon’ble Supreme Court in Zahira Habibulla H. Sheikh and another vs. State of Gujarat and others, 2004 (4) SCC 158 observed:

“43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.

44. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e.

(i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Courts to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India this Court has observed, while considering the scope and ambit ofSection 311, that the very usage of the word such as, “any Court” “at any stage”, or “any enquiry or trial or other proceedings” “any person” and “any such person” clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case – ‘essential’, to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice andpublic interest. It is done with an object of getting the evidence in aid of a just decision and to upheld the truth.

45. It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in.”

15. An accused has an indefeasible right to a fair trial and equal opportunity to prove his innocence. It is settled law that the right of accused to adduce defence evidence is not a mere formality but an essential part of a criminal trial where every opportunity must be given to the accused to adduce his defence.

16. Hon’ble Supreme Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258 has held as under:-

“12….The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. “Fair trial” includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them….”

17. In the case in hand the defence of the petitioner is that he has been falsely implicated in this case and the Prosecutrix has accepted having an affair with co-accused Vinod in the tape recorded conversation. He has placed the transcripts of the conversation which took place between him and the Prosecutrix along with the present petition. Prosecutrix when cross- examined on the point of conversation has denied the fact that the voice recorded in the tape recorder was her voice. A perusal of the transcripts shows that it has statements exculpatory to the Petitioner.

18. In my opinion it would be just and fair to grant an opportunity to the Petitioner to prove his innocence. In view of the discussion above the present petition is allowed. The Trial Court will direct the prosecutrix to give her voice samples, the same be sent for scientific analysis and appropriate action thereafter be taken in accordance with law.

19. Petition and application are disposed of.

(MUKTA GUPTA) JUDGE JULY 05, 201

Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached toSection 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.

The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

————————————————————————–

 IN THE HIGH COURT OF DELHI AT NEW DELHI

       Date of Decision: 20th May, 2015
+        CRL.M.C. 3589/2014

         PRIYANKA
                                                             ..... Petitioner
                             Through:   Mr Vinay Jaidka and Mr Ankit
                                        Batra, Advs.
                             versus
         STATE & ANR
                                                            ..... Respondent
                             Through:   Ms. Ritu Gauba, Additional Public
                                        Prosecutor for the State alongwith
                                        WASI Sushma Police Station Uttam
                                        Nagar, Delhi
                                        Mr Vimal Puggal, Adv. for
                                        respondent no.2.

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
                           JUDGMENT

: SUNITA GUPTA, J.

1. This is a petition u/s 482 read with Section 439(2) of the Code of Criminal Procedure, (hereinafter referred as `Cr.P.C’), 1973 against the order for grant of bail dated 26.04.2014 passed by the learned Metropolitan Magistrate in case FIR No.549/2013, P.S. Uttam Nagar u/s 354/376/506/34 IPC.

2. The FIR in the instant case was registered on the basis of a complaint made by the petitioner regarding commission of rape upon her by respondent no.2 which resulted in registration of the aforesaid FIR.

3. It is submitted by learned counsel for the petitioner, that pursuant to the complaint made by the petitioner, respondent no.2 moved an application for anticipatory bail before the Sessions Court which was dismissed vide order dated 08.10.2013. Thereafter bail application no. 1945/13 was moved before this Court and the same was dismissed vide order dated 31.10.2013. Respondent no.2 filed an SLP(Crl.No.10133/2013) before Hon’ble Supreme Court. While issuing notice, Hon’ble Supreme Court passed an interim order not to arrest the petitioner (respondent no.2 herein). After completion of service, when the SLP was called up for hearing on 03.07.2014, counsel for respondent no.2 made a statement that respondent no.2 has already been granted regular bail by the competent Court. In view of this statement, the SLP was dismissed as infructuous. It is submitted that thereafter counsel for the petitioner inspected the judicial file which revealed that on 09.04.2014, the Investigating Officer filed charge sheet before the learned Metropolitan Magistrate, New Delhi. The Court took cognizance of the offence. The learned Metropolitan Magistrate noted in the order that all three accused persons are stated to be not arrested but this fact was not verified by the learned Metropolitan Magistrate. The accused persons were summoned for 26.04.2014.

4. On 19.04.2014, there was no order from any Court regarding stay of arrest of accused Bhanwar Pal and Anmol nor were they on bail. An incorrect statement was made by the Investigating Officer on that day. On 26.04.2014, respondent no.2 appeared along with his counsel. However, the remaining two accused Bhanwar Pal and Anmol did not appear and were granted exemption from personal appearance. Without filing a bail application by respondent no.2 and without notice to the State, by completely ignoring the bar u/s 437(1)(i) Cr.P.C, the MetropolitanMagistrate, Delhi granted regular court bail to respondent no.2 for offences punishable u/s 354/376/506/34 IPC. The learned Metropolitan Magistrate did not even deem it proper to impose any condition on respondent no.2 while admitting him on regular bail nor recorded any reasons for granting regular bail. On 01.05.2014, the learned Metropolitan Magistrate also granted regular bail to accused Bhanwar and Anmol without filing any bail application. The learned Metropolitan Magistrate thereafter committed the matter to the Sessions Court as offence is exclusively triable by the Sessions Court.

5. It is submitted that the bail order passed by the learned Metropolitan Magistrate is illegal, improper, contrary to law and has caused fragrant miscarriage of justice inasmuch as Section 376IPC is punishable with rigorous imprisonment for not less than 7 years but which may extend to imprisonment for life and with fine. Section 437(1) restrains the Magistrate from granting bail in cases where a reasonable ground appears for believing that a person is guilty of offence punishable with death or imprisonment for life. Further proviso attached to Section 437(1)(i)Cr.P.C restrains the Court from granting bail without giving an opportunity of hearing to the Public Prosecutor for the State. The Magistrate can exercise powers u/s 437 Cr.P.C only on filing a proper application for grant of bail. The learned Metropolitan Magistrate failed to assign any reasons for admitting respondent no.2 to regular court bail. Even no condition was imposed on respondent no.2 while admitting him on regular bail. Under the circumstances, the order is illegal. Same is also liable to be set aside inasmuch as respondent no.2. has been constantly extending threats to the petitioner and her family with the result petitioner had to shift to a rental accommodation. A letter to this effect was also written to the SHO but no action was taken. Reliance was placed on Prahlad Singh Bhati v. N.C.T of Delhi & Another, (2001) 4 SCC 280;Gurcharan Singh & Ors v. State (Delhi Administration), 1978 SCR(2) 358; Hanuman s/o Vishwanath Nehare v. State of Maharashtra and ors., 2001(5) Bom CR 879; Parasnath Dubey and others v. State of U.P & Others; State of Maharashtra & Anr v. Mohd. Sajid Husain Mohd. s Husain in Crl.A.No.1402-1409/2007 and Union of India v. Hassan Ali Khan & Anr., in Crl.A.No.1883/2011.

6. On the other hand, Sh. Vimal Puggal, Advocate appearing for respondent no.2 submits that since the arrest of petitioner was stayed by Hon’ble Supreme Court, therefore, there is no infirmity in the order passed by the learned Trial Court which calls for interference. Reliance was placed on Court On Its Own Motion v. Central Bureau of Investigation, 2004(1) JCC 308 andDolat Ram v. State of Haryana, (1995) 1 SCC 349.

7. The undisputed facts are that pursuant to the complaint made by the petitioner FIR u/s 354/376/506 IPC was registered against respondent no.2. The application for grant of anticipatory bail filed by respondent no.2 was dismissed by the learned Additional Sessions Judge vide order dated 08.10.2013 and it met the same fate before this Court when the application for anticipatory bail was dismissed vide order dated 31.10.2013. SLP was filed by respondent no.2 and while issuing notice, Hon’ble Supreme Court passed an interim order:-

“In the meantime, the petitioner shall not be arrested in connection with FIR No.549/13 dated 04.10.2013 registered at P.S. Uttam Nagar, New Delhi.”

8. Thereafter charge sheet was submitted by the Investigating Officer of the case. As per the certified copy of the charge sheet placed on record by the petitioner, in the column of “Particulars of accused person charge sheeted”, it was mentioned as under:-

“(a) Name – Arvind Kumar

(l) date of arrest- Without Arrest

(q) status of accused – Stay on arrest by Supreme Court

(i) Name – Bhanwar Pal

(xv) Date of arrest- Without Arrest (xxi) Status of the accused- Not Arrest

(i) Name- Anmol Kumar

(ii) Date of Arrest-Without Arrest

(iii) Status of the accused-Stay on arrest by Supreme Court/Not Arrested.”

9. The relevant order sheets of the learned Metropolitan Magistrate are reproduced as under:-

“FIR No.549/13 PS Uttam Nagar 19.04.2014 Fresh challan along with E-challan filed. It be checked and registered.

     Present:       Ld. APP for the State
                    IO SI Satyawati present.

All three accused persons are stated to be not arrested. It take cognizance of the offence.

Let accused be summoned for 26.04.14.”

26.04.2014 Present: None for the State.

Accused Arvind with counsel.

Rest two accused absent.

An application for exemption has been moved on behalf of the accused Bhanwar Pal and Anmol. Same is allowed only for today and it is made clear to the counsel for the accused persons that no such applications shall be allowed in future. Documents supplied to accused Arvind.

Further accused Arvind is being admitted to regular court bail on furnishing personal bond of Rs.20,000/- with one surety of the like amount. Bail Bond to be furnished on the NDOH.

List for appearance of all the accused persons for 01.05.14.”

01.05.2014 Present: Ld. APP for the State.

All three accused with Ld. Counsel.

Bail bond of accused Arvind Kumar furnished and the same be verified through the SHO for the next date of hearing.

Accused Bhanwar Pal and Anmol Kumar is admitted to court bail on furnishing a personal bond in the sum of Rs.20,000/- with one surety each in the like amount.

Bail bond of accused Anmol Kumar furnished and accepted.

Bail bond of accused Bhanwar Pal furnished and the same be verified through SHO for 06.05.2014.

Documents are stated to be completed.

List for verification of bail bonds and for committal proceedings on 06.05.2014.”

06.05.2014 Present: Ld. APP for the State.

All three accused with Ld. Counsel.

Bail bond of Arvind and Bhanwar Pal accepted.

Copies are stated to be complete. Since the offence is exclusively triable by the Court of Sessions, hence file be placed before Ld. District Judge(W) cum ASJ for 12.05.2014 for committal to the Court of Sessions.

Accused be produced accordingly. Ahlmad is directed to send the file complete in all respects well within time. Ld. APP for the State be notified.”

10. When the matter came up for hearing before the Hon’ble Supreme Court on 03.07.2014, counsel for respondent no.2 made a statement that respondent no.2 has already been granted regular bail by the Competent Court, as such the SLP was dismissed as infructuous.

11. The sole question for consideration is whether the learned Metropolitan Magistrate was competent to grant bail in a case u/s 376 IPC which entails minimum sentence of 7 years which may extend to imprisonment for life and if so, whether while passing the order for release on bail, provisions of Section 437 Cr.P.C were complied with or not. Before proceeding further, it will be advantageous to reproduce Section 437 Cr.P.C which provides for “when bail may be taken in case of non- bailable offence.” It reads as under:-

“437. When bail may be taken in case of non- bailable offence-

(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of [a cognizable offence punishable with imprisonment for three years or more but not less than seven years]:

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.] [Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, orimprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.] (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but that there are sufficient grounds for further inquiry into his 1 guilt the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail] or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice.

(4) An officer or a Court releasing any person on bail under sub- section (1) or sub- section (2), shall record in writing his or its 1 reasons or special seasons] for so doing.

(5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.”

12. In Prahlad Singh (supra), similar question arose. In that case, respondent no.2 who was alleged to have murdered his wife and against whom the FIR u/s 302 of the IPC was registered, was released on bail by the Metropolitan Magistrate, New Delhi. The revision filed against the said order was dismissed by the High Court. The matter went to Hon’ble Supreme Court. The relevant observations made by Hon’ble Supreme Court which has a material bearing in the present case are reproduced as under:-

“5. Chapter XXXIII relates to the provisions as to bails and bonds. Section 436provides that when any person accused of a bailable offence is arrested or detained without warrant by an officer incharge of the police station, or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail, such person shall be released on bail. Under Section 437 of the Code when a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court, he may be released on bail by a court other than the High Court and Sessions subject to the conditions that he does not reasonably appear to have been guilty of an offence punishable with death or imprisonment for life. The condition of not releasing the person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed. It does not, however, mean that persons specified in the first proviso to sub-section (1) of Section 437should necessarily be released on bail. The proviso is an enabling provision which confers jurisdiction upon a court, other than the High Court and the court of Sessions, to release a person on bail despite the fact that there appears reasonable ground for believing that such person has been guilty of an offence punishable with death or imprisonment for life. There is no gainsaying that the discretion conferred by the Codehas to be exercised judicially. Section 438 of the Code empowers the High Court and the Court of Sessions to grant anticipatory bail to a person who apprehends his arrest, subject to the conditions specified under sub-section (2) thereof.

6. Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a court of Sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 of the Code in respect of a person who is, suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negotiate the existence of reasonable ground for believing that such accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case, where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail.

7. Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached toSection 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.

8. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

xx xx xx xx xx xx xx xx xx xx xx

11. While allowing this appeal and setting aside the orders impugned we permit the respondent-accused to apply for regular bail in the trial court. If any such application is filed, the same shall be disposed of on its merits keeping in view the position of law and the observations made hereinabove. We would reiterate that in cases where the offence is punishable with death or imprisonment for life which is triable exclusively by a court of Sessions, the Magistrate may, in his wisdom, refrain to exercise the powers of granting the bail and refer the accused to approach the higher courts unless he is fully satisfied that there is no reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life.”

13. Again in Gurcharan Singh(supra) it was observed that under sub- section 4 of Section 457Cr.P.C., an officer or a Court releasing any person on bail under sub-section1 or sub-secton2 of that section is required to record in writing his or its reason for doing so. That is to say, law requires that in non-bailable offences punishable with death or imprisonment for life, reasons to be recorded for releasing a person on bail, clearly disclosing how discretion has been exercised in that behalf.

14. Hanuman(supra) was a case where the respondent was arrested in connection with an attempt to murder u/s 307 IPC. On the same day, when the bail application was filed, the respondents were ordered to be enlarged on bail by the learned Metropolitan Magistrate even though APP was not available in the Court. The victim died and, therefore, Section 302 IPC was attracted and charge sheet was filed u/s 302 IPC. Son of the deceased moved application for cancellation of bail. The Mumbai High Court observed that in respect of offence for which the maximum sentence prescribed is life imprisonment but alternatively lesser punishment is provided for instance ten years, the bar of Section 437 would operate and such person cannot be released on bail by the Magistrate as the magistrate has no jurisdiction to grant bail to such person u/s 437(1) Cr.P.C. The Magistrate without giving opportunity to the prosecution, in a hasty manner granted bail to the respondent on the same date, as such it was observed that the Magistrate had acted in an arbitrary and capricious manner while dealing with the matter and hastily granted bail to the respondent, accordingly the bail was cancelled.

15. Adverting to the case in hand, the charge sheet was submitted against respondent no.2 for offence u/s 354/376/506 IPC. As per sub- section(1) of Section 376 IPC, the punishment prescribed for offence of rape is not less than seven years which may extend to imprisonment for life and fine. As per first schedule of the Cr.P.C, offence u/s 376 IPC is triable by a Court of Session. As observed in Prahlad Singh(supra) even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a court of Sessions yet it would be proper and appropriate that in such a case, the Magistrate directs the accused persons to approach the Court of Sessions for the purpose of getting the relief of bail. Even if, the Magistrate opts to exercise the powers u/s 437 of the Code, in such a case, he or she has to comply with the relevant provisions incorporated in Section 437.

16. A bare reading of the provisions of Section 437 Cr.P.C makes it clear that in case the Metropolitan Magistrate deems it appropriate to release the accused on bail, who is accused of offence punishable with imprisonment which may extend to seven years or more, it is incumbent upon him/her to record such reasons for releasing on bail [vide proviso to sub-section(1)]. Furthermore, no such order is to be passed unless an opportunity of hearing is given to the Public Prosecutor (vide fourth proviso to sub-section (1). While releasing on bail, the conditions as prescribed in sub-section(3) of Section 437 besides any other condition which the Court may consider necessary, has to be imposed.

17. Reverting to the case in hand, a perusal of the order sheets reproduced in the foregoing paragraphs reflects that after the challan was filed by the Investigating Officer of the case and it was pointed out by the Investigating Officer that the accused were not arrested, the Court took cognizance of the offence and ordered summoning of the accused. On 26.04.2014, the petitioner appeared while the other two accused were absent. Their exemption was granted pursuant to an application moved by them. Offence under Section 376 IPC is non-bailable one. That being so, accused was not entitled to be released on bail as a matter of right. He was required to move an application for bail which was not done. Even if the challan was filed showing accused “not arrested”, Court could have informed him that he may, if so desire, move application for release on bail. But, without adopting any such recourse, the Court of its own admitted the accused to regular bail. Neither the Public Prosecutor nor the Investigating Officer of the case was present. As such, no opportunity of hearing was afforded to them. Even no reason was assigned as to why the accused was being admitted to regular bail and while releasing him on bail, even no conditions as were required to be imposed by virtue of sub-section 3 of Section 437 were imposed. In view of the fact that by virtue of orders of Hon’ble Supreme Court dated 13.12.2013, the arrest of the petitioner was stayed till the next date of hearing, the only course available to the learned Metropolitan Magistrate was to await the orders of Hon’ble Supreme Court but without complying with the provisions of Section 437 Cr.P.C, the learned Metropolitan Magistrate could not have released the accused on regular bail. Under the circumstances, the order passed by the learned Metropolitan Magistrate releasing respondent no.2 on regular bail cannot be sustained and deserves to be set aside.

18. Court on its own Motion(supra) relied upon by learned counsel for respondent no.2 has no application to the facts of the case in hand in as much as in that case it was observed that when accused is neither arrested by the police during investigation nor produced in custody, the Court on appearance of such an accused call upon the accused to move a bail application. If he does so, the Court can release him on bail as the circumstance of his having not been arrested during investigation nor being produced in custody is itself sufficient to entitle him to be released on bail. This case does not help respondent no.2 in as much as according to this judgment also when the accused appears in a non-bailable offence before the Court and himself does not move an application for bail, the Court should apprise him to move a bail application and then release him on bail if the circumstances of the case so warrants. In the instant case, the accused himself has not moved any bail application nor the Court apprised him of his right to move a bail application but suo moto released him on bail which could not have been done.

19. In Dolat Ram (supra), it was observed that bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstance have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. In this case, anticipatory bail was granted to the appellants. State of Haryana filed a petition for cancellation of anticipatory bail which was allowed. Thereafter the matter went to Hon’ble Supreme Court. It was observed that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail, already granted. Generally speaking the grounds for cancellation of bail broadly (illustrative and not exhaustive) are:- interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due process of justice or abuse of the concession granted to the accused in any manner. Bail once granted should notcancelled in a mechanical manner. In State of U.P through CBI v. Amarmani Tripathi, (2005) 8 SCC 21, it was observed that in an application for cancellation of bail, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant u/s 439 read with Section 437 continue to be relevant.

20. In view of the fact that the orders of the learned Metropolitan Magistrate granting bail to the accused was in violation of the provisions. incorporated u/s 437 of the Cr.P.C., the same is set aside. However, respondent no.2 is enjoying the benefit of bail since 26.04.2014 as such, while allowing this petition and setting aside the order impugned, respondent no.2 is permitted to apply for regular bail in the Sessions Court where the case has been committed for trial within a week. If any such application is filed, the same shall be disposed of on its own merits, failing which learned Additional Sessions Judge who is seized of the matter is directed to take him in custody. The petition is accordingly disposed of.

Order dasti.

(SUNITA GUPTA) JUDGE

 

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

Criminal Application No.663 of 2008

And

Criminal Writ Petition No.58 of 2008

Criminal Application No.663 of 2008

Smt. Gita w/o Chandrashekhar Pandit,

Aged about 47 years,

Occ.: Nil,

R/o Gorelal Chowk,

Tah. & District Gondia. … Applicant

Versus

Shri Chaqndrashekhar s/o Rameshwar

Pandit,

Aged about 49 years,

Occ.: Legal Practitioner,

R/o Nandurbar,

Tah. & District Nandurbar. … Non-Applicant

Shri S.V. Sirpurkar, Advocate for Applicant. Shri S.P. Bhandarkar, Advocate for Non-Applicant.

Criminal Writ Petition No.58 of 2008

Chandrashekhar s/o Rameshawar Pandit,

Aged 49 years,

Occ.: Advocate,

R/o Nandurbar,

Tahsil Nandurbar,

District Nandurbar. … Petitioner

Versus

2

Sushree Geeta d/o Ramnath Sharma,

(earlier Smt. Geeta w/o Chandrashekhar Pandit), Aged Major,

Occ.: Landlady,

R/o Bazar Chowk,

Gondia. … Respondent

Shri S.P. Bhandarkar, Advocate for Petitioner. Shri S.V. Sirpurkar, Advocate for Respondent.

CORAM : R.C. Chavan, J.

Date of Reserving the Judgment : 13-1-2009.

Date of Pronouncing the judgment : 20-1-2009

Judgment :

1. These proceedings by wife and husband respectively

against each other raise a short legal point.

2. It is not in dispute that Gita was married to

Chandrashekhar, an Advocate on 8-12-1985. Marital discord led

Gita to seek maintenance under Section 125 of the Code of

Criminal Procedure by an application made in the year 1987. By

an order dated 19-11-1992, Gita was granted maintenance at the

rate of Rs.500/- per month. In 1990, Chandrashekhar filed a 3

petition for decree of divorce from Gita on the ground of cruelty.

Decree of divorce was granted finality by judgment

dated 1-3-2001 in Second Appeal No.129 of 1999 decided by

Aurangabad Bench of this Court.

3. It may be useful to recount how this litigation

proceeded. Petition for divorce by husband on the ground of

cruelty was contested by wife, who also filed a counter-claim for

restitution of conjugal rights. The Trial Court as well as the First

Appellate Court rejected husband’s claim for divorce and decreed

wife’s claim for restitution of conjugal rights, as may be seen from

copy of decree in Hindu Marriage Petition No.76 of 1987 of Court

of Civil Judge, Senior Division, Dhule, re-numbered as Hindu

Marriage Petition No.2 of 1990 in the Court of Civil Judge, Senior

Division, Nandurbar, which was included in the compilation filed

by husband. In spite of the fact that the decree specifically

recounts that wife had made a counter-claim for restitution of

conjugal rights and had paid court fee of Rs.37.50 (37.50 ?) on

the said counter-claim, which is also duly included in the bill of 4

costs, a substantial question of law seems to have been raised in

the following words as can be seen from para 6 of the judgment in

Second Appeal :-

“(ii) Whether in the absence of any prayer for restitution of conjugal rights, it was open for the courts below to pass a decree for restitution of conjugal rights against the appellant ?”

4. The learned counsel for husband, arguing the Second

Appeal, reiterated this, as may be seen from para 13 of the

judgment. Up to para 31, the judgment recounts arguments

advanced. In paras 32 to 35, there is discussion about

disobedience to decree for restitution of conjugal rights operating

as a bar for husband’s getting decree of divorce. In para 36, the

judgment considers ground of cruelty on account of false

complaints. The Court observed that in Second Appeal, the Court

would not re-appreciate evidence. The Court then proceeded to

hold that both the Courts below had perversely held that cruelty 5

was not proved, in the following words in para 37 :

“37. Another aspect of “mental cruelty” is with regard to the false allegation regarding impotency of appellant husband and making this allegation in public is also a serious act of “cruelty”. Therefore, I am of the clear view that both the lower appellate Courts have acted perversely in arriving at a finding that husband had failed to establish “cruelty” entitling him to a decree of dissolution of marriage, especially when the same is coupled with the factor of irretrievable breakdown of marriage over a long period.”

5. In para 39, about absence of prayer for restitution of

conjugal rights, the Court observes as under :

“39. In this context, it will also be noted that both the Courts below had admittedly granted a decree for restitution of conjugal rights, without there being any prayer made in that behalf by respondent-wife, which substantial question of law also, I answer in favour of the Appellant.”

6

Ultimately, the Court granted decree of divorce on the ground of

cruelty “coupled with the factor of irretrievable breakdown of

marriage”.

6. This account of the litigation speaks volumes about the

manner in which matters are conducted in this Court. Either

there was really no counter-claim for restitution of conjugal rights

by the wife, and in that case, the learned counsel for husband,

who has placed copy of decree of Civil Court for my perusal,

would have to ask himself if a wrong copy was placed before this

Court and why. If the copy is indeed the correct copy, it would be

a sad comment on the assistance of officers of the Court to Judges.

In that case, the husband’s counsel would not only have raised a

false ground in the Second Appeal that there was no claim for

restitution of conjugal rights, but would have falsely reiterated the

same, leading the Court to accept it – a case of suppresio veri as

well as suggestio falsi. If there was claim for restitution of

conjugal rights by the wife, and decree for the same was reversed 7

in Second Appeal erroneously holding that there was no such

claim, the plight of wife could well be imagined.

7. Reverting to the facts which led the parties to this Court

in the present proceeding, Gita filed an application bearing

No.113 of 2000 for enhancement of maintenance from Rs.500/- to

Rs.1,500/- per month before the learned Judicial Magistrate First

Class, Gondia. Chandrashekhar too filed Application No.82 of

2001 for cancellation of order of maintenance in view of the fact

that decree of divorce was passed on his petition. By common

judgment dated 19-7-2007, the learned Judicial Magistrate First

Class rejected husband’s application and allowed wife’s application

partly, increasing maintenance allowance to Rs.1,250/- per month

by common judgment dated 19-7-2007. Revision applications by

both the parties were dismissed by common judgment dated 20-

11-2007 by the learned Additional Sessions Judge, Gondia.

8. Aggrieved thereby, the husband has filed Criminal Writ

Petition No.58 of 2008 seeking quashing of order directing him to

pay maintenance, and the wife has filed Criminal Application 8

No.663 of 2008 for enhancement of maintenance allowance to

Rs.5,000/- per month.

9. I have heard the learned counsel for both the husband

and wife.

10. The learned counsel for husband relied on a judgment

of Division Bench of this Court in Bhagwan Raoji Dale v. Sushma

alias Nanda Bhagwan Dale and another, reported at 1998(2)

Mh.L.J. 819, upon a reference by a learned Single Judge where

the Bench held that when the husband had obtained a decree for

restitution of conjugal rights, which the wife failed to comply

leading to a decree of divorce, such wife would not be entitled to

maintenance as she would not fall under any of the two categories

in Explanation (b) to Section 125(1) of the Code of Criminal

Procedure. Explanation (b) to Section 125(1) of the Code of

Criminal Procedure reads as under :-

“(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from her husband 9

and has not remarried.”

In Sharadchandra Satbhai v. Indubai Satbhai, reported at 1978

Mh.L.J. 123 (with which the learned Single Judge disagreed), the

Court held that even a divorced wife was entitled to maintenance,

but this right was subject to sub-section (4) of Section 125, which

inter alia disentitles a wife, who, without sufficient reason,

refused to live with her husband. In that case, wife was held to

have deserted her husband without reasonable cause and his

petition for judicial separation on this ground had been decreed.

The learned Single Judge felt that this was in conflict with

pronouncement of the Supreme Court in Bai Tahira v. Ali Hussain

Fissalli Chothia, reported at 1979 Mh.L.J. 95. Bai Tahira had been

divorced by her husband in July 1962. The Apex Court held that

she was entitled to maintenance.

11. The Division Bench in Bhagwan Raoji considered both

these judgments, as also the significance of the expression in

Explanation (b) to Section 125(1) of the Code of Criminal 10

Procedure, viz. “who has been divorced by” or “has obtained

divorce from”, which has been again used in clauses (c) and (d) of

Section 127(3) of the Code of Criminal Procedure. The Division

Bench then considered whether the respondent before them could

claim benefit of extended definition of ‘wife’ in Explanation (b) to

Section 125(1), since she had suffered an ex parte decree of

restitution of conjugal rights on 31-7-1979, followed by ex parte

decree of divorce on 3-12-1980 for failure to comply with decree

for restitution of conjugal rights in spite of husband’s filing an

execution proceeding. The Division Bench then held as under in

paras 16 and 17 of the judgment :

“16. A close scrutiny of the phraseology used in clause (b) of the Explanation to section 125(1) shows that it is in two parts. The first part deals with a wife who has been divorced by her husband which, in our view would, normally, apply to parties professing the Muslim religion or whereunder a customary law applicable to some Hindus, the husband is entitled to unilaterally divorce the wife. This is because the words used are that the “woman 11

has been divorced by the husband”. The second part deals with the case whether the wife has obtained a divorce from her husband. This contemplates the wife moving the court for a decree for divorce and the wife obtaining a decree for divorce from her husband. Undoubtedly, in either of the two situations falling is clause (b), the wife has not remarried. If this is the true interpretation of clause (b) of the Explanation, then in our view, the respondents’s case cannot fall under the said clause (b). On the date when the Magistrate passed the order in the application under section 125 viz. on 3rd May, 1993, the respondent was a divorcee. But she was not falling in any of the two categories contemplated by Explanation (b) of section 125(1). In our view, therefore, the respondent cannot draw any support from the ratio of the decision of the Apex Court in Bai Tahira’s case.”

“17. In the light of what we have stated above, we do not think that the view taken by the Division Bench of this Court in Sharadchandra Satbhai’s case requires reconsideration. As stated earlier, in Sharadchandra Satbhai’s case also, as in the present case, the wife left the matrimonial home. The husband filed a suit for judicial 12

separation and obtained a decree on the ground that the wife had deserted. Relying upon this fact, the learned Magistrate had dismissed the application under section 125 for maintenance. The Revisional Court had allowed the wife’s application against which the husband had approached this court. This court allowed the husband’s application and, in the result, dismissed the wife’s application for maintenance. While arriving at its conclusion, the Division Bench in Sharadchandra Satbhai’s case considered the effect Explanation (b) to section 125(1) as also sub-section (4) of section 125. Para 8 of the judgment at page 126 may usefully be reproduced :

“8. It is, however, open to a wife who is unable to maintain herself and her husband has sufficient means to maintain her but nevertheless neglects or refuses to do so, to make an application under section 125, Criminal Procedure Code, 1973, and seek an order for maintenance, subject to the conditions and limitations of that section. Explanation (b) of section 125(1) clarifies that even if she is a divorcee, she can claim maintenance provided she is not remarried. Sub-section (4) disentitles a wife to receive allowance 13

in certain cases, one of them being “if, without any sufficient reason, she refused to live with her husband”. This sub-section governs the whole of section 125. Now, in a case like the present one, when the Civil Court has determined the issue of desertion and held that the wife has left her husband without reasonable cause and against his wish and without his consent can it be said that she is still entitled to maintenance under section 125 and not hit by sub-section (4)? It is plain and simple that she has refused to live with her husband without any sufficient reason and, therefore, disentitled herself to receive maintenance under section 125. The effect of the decree for judicial separation on this particular ground of desertion cannot be overlooked by the Magistrate dealing with an application under section 125 because he has to bear in mind the disability created by sub-section (4) of that section. The fact that a decree for judicial separation has been passed in favour of the husband on the ground of desertion means that the wife is guilty of refusing to live with her husband. In our judgment, Indubai is not entitled to maintenance under section 125, Criminal 14

Procedure Code, 1973, as she had no reasonable ground not to live with her husband. The approach of the learned Additional Sessions Judge overlooks the object and purpose of sub-section (1) of section 125. It is true that a divorcee is entitled to approach the Magistrate under section 125 for speedy remedy. So could a wife against whom a decree for judicial separation is passed, but a wife who has deserted her husband within the meaning of the Explanation to section 10(1) of the Hindu Marriage Act, 1955, as discussed above, is not entitled to apply under section 125 of Criminal Procedure Code, 1973″.

We are in respectful agreement with the view expressed by the Division Bench in Sharadchandra Satbhai’s case.”

12. The Division Bench then took a review of several

judgments on the subject. In paras 27, 31 and 32, the Court then

concluded as under :

“27. It appears to us further that if the wife is at fault and if the husband succeeds in obtaining a decree for 15

restitution of conjugal rights, as long as the marriage subsists, the wife would not be entitled to claim maintenance in view of sub-section (4) of section 125. Would it, then be permissible to saddle the husband with maintenance if such a wife has been divorced pursuant to a decree passed by a competent court as a result of the failure on the part of the wife to obey the decree for restitution of conjugal rights. In our view the answer must be in the negative. Granting maintenance to such a wife would be tantamount to permiitting a person to take advantages of one’s own wrong. Finding of the Civil Courts in the two matrimonial petitions, one for restitution of conjugal rights and other for divorce is that the wife was in the wrong. That finding has not been challenged in a superior court. The two decrees are final. We must, therefore, proceed on the footing that the wife was in the wrong. In our view, therefore, she is not entitled to maintain an application by taking advantages of the extended meaning in Explanation (b) to section 125(1) of the Code.”

“31. In the light of the above discussion, we may sum up our conclusion as under. It is not every divorced wife 16

who can claim maintenance under section 125(1) of the Code. A woman who has been divorced by her husband is included in the first part of Explanation (b) to section 125(1). She can claim maintenance under section 125(1). In this category would normally, fall the case of a Muslim woman who has been unilaterally divorced by her husband in accordance with Muslim Personal law. This category may also include a woman who, under the customary law applicable to some Hindus, has been unilaterally divorced by her husband. The second category falling under Explanation (b) to section 125(1), who can claim maintenance under the said section, consists of a woman who has obtained divorce from her husband, meaning thereby that the wife has initiated proceedings for obtaining divorce from the husband, as indicated in para 24 above. In this view of the matter, we are of the opinion that the Division Bench decision of this court in Sharadchandra Satbhai vs. Indubai Satbhai, 1978 Mh.L.J. 123, does not require reconsideration and we are in agreement with the ratio of the said decision. We also approve of the decision rendered by three learned Single Judges of this Court in the three cases discussed above (i) Baburao Kalaskar’s case, decided by Puranik, J. 17

(para 18 above), (ii) Smt. Shantabai Saitwal’s case, decided by Mehta, J. (para 19 above) and (iii) Kalidas Shinde’s case, decided by Deshpande, J. (para 20 above). We are unable to persuade ourselves to agree with the view expressed by Vaidya, J. in Smt. Sugandhabai vs. Vasant Deobhat, 1992 Cri.L.J. 1838. For the reason discussed above, we are not in agreement with the view expressed by Vaidya, J. in the said case.”

“32. In the view that we have taken, the question referred for our decision must be answered against the respondent-wife. In our view, in the facts and circumstances of the case, where the husband had obtained a decree for restitution of conjugal rights and the wife had failed to comply with the said decree resulting in the husband obtaining a decree for divorce, the respondent-wife does not fall in any of the two categories contemplated by Explanation (b) to section 125(1) of the Code. In the circumstances, the application for maintenance made by the wife was liable to be rejected as not maintainable. Since we have come to the conclusion that the application of the respondent-wife was not maintainable in law, it is not necessary for us to refer 18

the case back to a learned Single Judge since nothing remains to be decided on merits of the matter.”

In separate but concurring judgment in para 38, an Hon’ble Judge,

who was a member of the Bench, observed as under :-

“38. The next thing which we have to consider is whether the case of such a wife or woman can fall in the first limb of explanation (b). Here also the answer should be in the negative for the simple reason that the wording used by the legislature is not a woman against whom a decree of divorce was obtained by her husband but the woman who has been divorced by her husband. If the legislature had wanted to include a woman against whom a decree of divorce is obtained by her husband, the legislature would have used the appropriate phraseology to cover such woman as done in the second limb of the explanation to cover the case of a woman who herself obtains divorce from her husband. The fact that different phraseology has been used for the first limb of explanation (b) would mean that the legislature never intended to include woman against whom decree of 19

divorce was obtained by her husband from a Court of law by proving some fault on the part of the wife. The words used by the legislature in the said explanation would not justify different interpretation. On the contrary, the words are very clear which do not include a woman whose marriage has been dissolved by decree of divorce at the instance of her husband. If the interpretation which was placed by some of the Courts is accepted so as to include woman against whom divorce was obtained by her husband from a Court of law, it would certainly lead to a very anomalous situation. If such a woman against whom decree of divorce was obtained by the husband is included in the extended definition of wife under section 125(1) of the Code of Criminal Procedure it would mean that the woman who was wrong doer or was guilty of desertion or cruelty against her husband would be entitled to claim maintenance after a decree of divorce is passed against her, though undisputedly, she would not be entitled for maintenance before such divorce was granted by virtue of sub-section (4) of section 125 of the Code of Criminal Procedure. To hold that a woman against whom a decree of divorce was obtained by the husband is entitled for maintenance, would go not only 20

against the express words of explanation (b) to section 125(1) of the Code of Criminal Procedure but also would create an anomalous situation as pointed out above. Happily the legislature itself has taken care to see that such incongruous position does not arise by using appropriate phraseology.”

13.. The learned counsel for husband also relied on a

judgment of the same Hon’ble Single Judge in Satyawan Laxman

Jagtap v. Vimal Satyawan Jagtap and others, reported at 2000(1)

Mh.L.J. 419, where similar view was taken.

14. The learned counsel for wife submitted that this view

may no longer be regarded as good law in view of categorical

pronouncement of the Apex Court in Rohtash Singh v. Ramendri

(Smt) and others, reported at (2000) 3 SCC 180. Parties were

married on 10-5-1980. In 1991, wife left husband’s house and

refused to return. Husband filed a petition for dissolution of

marriage on the ground of desertion. On 15-7-1995, the Family

Court granted a decree of divorce on the ground of desertion. 21

Wife had claimed maintenance under Section 125 of the Code of

Criminal Procedure. Family Court granted maintenance in spite of

decree of divorce on the ground of desertion. High Court

dismissed husband’s revision leading to his filing Special Leave

Petition before the Hon’ble Supreme Court. It was specifically

argued that in the face of decree of divorce on the ground of

desertion, in view of provisions of Section 125(4) of the Code of

Criminal Procedure, maintenance could not be granted. It may be

useful to quote the observations of the Apex Court in paras 6 to 12

of the judgment which squarely deal with the questions raised in

the present case :-

“6. Under this provision, a wife is not entitled to any maintenance allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent. Thus, all the circumstances contemplated by sub-section (4) of Section 125 Cr.P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to 22

an end. Taking the three circumstances individually, it will be noticed that the first circumstance on account of which a wife is not entitled to claim maintenance allowance from her husband is that she is living in adultery. Now, adultery is the sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim maintenance allowance under Section 125 of the Code of Criminal Procedure.”

“7. The second ground on which she would not be entitled to maintenance allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. “Sufficient reasons” have been interpreted differently by the High Courts having regard to the facts of individual cases. We are not required to go into that 23

question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim maintenance alloowance under Section 125 CrPC and how far can the plea of desertion be treated to be an effective plea in support of the husband’s refusal to pay her the maintenance allowance.”

“8. Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15-7- 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be a “wife” within the meaning of Section 125 CrPC on accodunt of Explanation (b) to sub- 24

section (1) which provides as under :

“Explanation.–For the purposes of this chapter– (a) * * *

(b) ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”

“9. On account of the explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming maintenance allowance from her ex-husband. This Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal observed as under : (SCC p. 74, para 9)

“9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like 25

women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause – the cause of the derelicts.”

“10 Claim for maintenance under the first part of Section 125 CrPC is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub- section (1) of Section 125 CrPC. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by the wife but she was held entitled to maintenance allowance as a divorced wife under Section 125 CrPC and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See: Sukumar Dhibar v. Anjali Dasi). The Allahabad High Court also, in the instant case, has taken a similar view. 26

We approve these decisions as they represent the correct legal position.”

“11. Learned counsel for the petitioner then submitted that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights, duties and obligations should also come to an end. He pleaded that in this situation, the obligation of the petitioner to maintain a woman with whom all relations came to an end should also be treated to have come to an end. This plea, as we have already indicated above, cannot be accepted as a woman has two distinct rights for maintenance. As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125(4). In another capacity, namely, as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute. If she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligation to provide maintenance to her.”

27

“12. Learned counsel for the petitioner then contended that the maintenance has been allowed to the respondent from the date of the application. The application under Section 125 CrPC was filed by the respondent during the pendency of the civil suit for divorce under Section 13 of the Hindu Marriage Act. It is contended that since the decree of divorce was passed on the ground of desertion by the respondent, she would not be entitled to maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act. To that extent, the learned counsel appears to be correct. But for that short period, we would not be inclined to interfere.”

In view of this pronouncement of the Supreme Court, it is not

necessary to refer to the judgments of Kerala, Himachal Pradesh,

Delhi and Orissa High Courts, which were cited by the learned

counsel for the wife.

15. It may be seen that the Apex Court has held that even a

wife, who is divorced on the ground of desertion, is entitled to

maintenance and she does not get disentitled under sub-section 28

(4) of Section 125 of the Code of Criminal Procedure Code. Thus

the very basis of the judgment of the Division Bench in

Sharadchandra Satbhai v. Indubai Satbhai, reported at 1978

Mh.L.J. 123, which was approved by the Division in Bhagwan

Raoji Dale v. Sushma alias Nanda Bhagwan Dale and another,

reported in 1998(2) Mh.L.J. 819, goes away. In Sharadchandra,

the wife was held disentitled to maintenance specifically on

account of the provisions of Section 125(4) of the Code. In fact

Sharadchandra is not an authority for the interpretation sought to

be put on expression used in Explanation (b) to Section 125(1) of

the Code. There is absolutely no warrant for concluding that a

woman “who has been divorced” refers to only women who have

been divorced under the Mulsim Law or customary law, or that

woman “who has obtained a divorce from her husband” refers to

only those wives who have obtained a decree of divorce. since the

Explanation (b) was intended to include divorced wives and since

apart from judicial proceedings, divorce is also possible according

to personal or customary law applicable to parties. A woman 29

“who has been divorced” would include any woman who has been

divorced not only according to personal or customary law, but one

who has been divorced on a decree in proceeding initiated by her

husband. And, the expression “a woman who has obtained

divorce” would not be restricted to only those wives who apply for

a decree of divorce (as has been observed in para 16 of the

judgment in Bhagwan Raoji – 1998(2) Mh.L.J. 819) but may also

include those who can and do obtain divorce under customary or

personal law. It may be recalled that even under Mohamadan

Law, “Khula” is a form of divorce granted at the instance of a

Mulsim wife. The distinction sought to be made in paras 16 and

38 of the judgment in Bhagwan Raoji can no longer be held as

good law since it cannot stand with the conclusion drawn by the

Supreme Court in Rohtash Singh v. Ramendri (Smt) and others,

reported at (2000) 3 SCC 180.

16. The learned counsel for husband submitted even if a

wife, who is divorced on the ground of desertion, is held entitled

to maintenance, the same may not hold good in respect of a wife 30

divorced on the ground of her cruelty (Cruelty in the present case

is her allegation that husband is impotent). First, the phraseology

used in Explanation (b) to Section 125(1) of the Code would not

admit of creating classes of divorced wives. A divorced wife is a

divorced wife, whatever may be the reasons for divorce and

whatever may be the procedure adopted or forum chosen. If wife

divorced on the ground of desertion, who has a better reason to be

disentitled, because a husband cannot be said to have refused or

neglected to maintain her, is held entitled to maintenance as

divorced wife, since she herself deprived husband of the chance to

maintain her, wives divorced for other reasons would certainly be

entitled to be maintained, since as held by the Supreme Court in

Rohtash Singh, (i) such woman, being a divorced wife in terms of

Explanation (b) to Section 125(1) of the Code would be deemed

to be ‘wife’; (ii) such a woman would be under no obligation to

reside with the husband, having been divorced; and (iii) would

therefore be entitled to separate maintenance. In view of this,

husband’s petition challenging grant of maintenance to his wife on 31

the ground that having been divorced on account of cruelty, she is

not entitled to maintenance, would have to be dismissed. It may

be useful to recall that in the Second Appeal, this Court had found

it necessary to take the support of irretrievable breakdown of

marriage also to prop up the case of cruelty for granting divorce.

17. As for wife’s application for enhancing maintenance

allowance to Rs.5,000/- per month, both the Courts below, upon

consideration of evidence tendered, have held her entitled to

Rs.1,250/- per month. The findings are in tune with the facts

proved and do not call for any interference in exercise of inherent

powers under Section 482 of the Code. She could always apply

for increase of maintenance allowance by making out a case for

such increase in the Trial Court. Hence, even this application has

to be rejected.

18. Both Criminal Application No.663 of 2008 and Criminal

Writ Petition No.58 of 2008 are dismissed.

Delhi High Court: While dealing with a case where seven persons were falsely implicated for committing rape on the prosecutrix by threatening her that they will kill her brother and display the photograph (in which she was being raped) in front of her house, a division bench on G.S. Sistani and S.D. Sehgal JJ.  held that no doubt the rape cases cause great distress and humiliation to the victims of rape, but at the same time false allegation of committing rape also causes humiliation and damage to the accused, as the accused also has right which has to be protected and the possibility of false implication has to be ruled out.

In the instant case, the testimony of the prosecutrix is not natural and consistent with the case of the prosecution. Her version has no correlation with other supporting material being medical, scientific and expert evidence. After rescanning the entire case in its right perspective, we are of the firm view if the evidence of the prosecutrix is read and considered in totality of the circumstances alongwith the other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence. The version of the prosecutrix has not been corroborated with medical evidence and has not disclosed the true genesis of the crime.

————————————————————-

 IN THE HIGH COURT OF DELHI AT NEW DELHI

     Judgment reserved on 22.05.2015
    Judgment delivered on 29.05.2015
+ Crl. A. 660/1999
ROHIT BANSAL                             ..... Appellant
                     Through : Mr. Rajeev Gaur Naseem, Advocate.
                      Versus
STATE                                             ..... Respondent
                Through : Mr. Feroz Khan Ghazi, APP for the State


+ Crl. A. 661/1999
BALBIR @ BALLI                                    ..... Appellant
                Through : Mr. M. L. Yadav, Advocate.
                      Versus
STATE                        ..... Respondent
                Through : Mr. Feroz Khan Ghazi, APP for the State


+ Crl. A. 677/1999
ANIL RAWAT & ORS.                                 ..... Appellants
                Through : Mr. M. L. Yadav, Advocate.
                      Versus
STATE                                             ..... Respondent
                Through : Mr. Feroz Khan Ghazi, APP for the State


+ Crl. A. 678/1999
MUKESH @ BITTOO                                   ..... Appellants
                Through : Mr. Rajeev Gaur Naseem, Advocate.
                      Versus
STATE                        ..... Respondent
                Through : Mr. Feroz Khan Ghazi, APP for the State




Crl. Appeal Nos. 660/1999, 661/1999, 677/1999, 678/1999 & 692/1999     Page 1 of 47
 + Crl. A. 692/1999
PARVEEN KUMAR                                                     ..... Appellant
                Through :                 Mr. Vikas Pahwa, Senior Advocate with
                                          Ms. Aeshna Dahiya, Advocate.
                                Versus
STATE                                     ..... Respondent
                       Through :          Mr. Feroz Khan Ghazi, APP for the State

  CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G. S. SISTANI, J.

1. Present appeals arise out of a common judgment dated 03.12.1999 and order on sentence dated 08.12.1999 passed by the learned Additional Sessions Judge, Delhi whereby the appellant Parveen was sentenced to undergo life imprisonment for an offence punishable under Section 376 (2) (g) of the Indian Penal Code with a fine of Rs.5,000/- and in default of payment of fine to undergo rigorous imprisonment for one year. Other six appellants viz. Mukesh @ Bittoo, Ajay Singh, Sunil Sharma, Balbir @ Balli, Anil Rawat and Rohit Bansal were sentenced to undergo rigorous imprisonment for ten years for an offence punishable under Section 376 (2) (g) of the Indian Penal Code and a fine of Rs.5,000/- each and in default of payment of fine each of the appellant to undergo rigorous imprisonment for one year. Appellant Parveen was also sentenced to undergo rigorous imprisonment for one year for an offence punishable under Section 342 of the Indian Penal Code. Appellant Parveen, Bittoo, Anil Rawat and Sunil were further sentenced to undergo rigorous imprisonment for one year for an offence punishable under Section 506 (II) read with Section 34 of the Indian Penal Code. All the sentences were ordered to run concurrently.

2. Brief facts of the case, as noticed by the learned Trial Court, are as under:

“(i) The case of the prosecution is that on 7.9.94 Inspector Prithvi Singh, Inspector Raj Mohinder Singh alongwith ACP were called at the office of DCP Crime Branch. There DCP Crime Branch instructed them to meet one Sh. Nand Kishore Taneja at premises No. 148 Preet Vihar and proceed with the case if the facts reveal the commission of a cognizable offence.

(ii) These officers reached at the said house. There they recorded the statements of prosecutrix.

(iii) She stated that she was residing at the aforesaid address alongwith her parents and is doing a course of interior designing at South Delhi Polytechnique. As a routine she comes upto Laxmi Nagar in a rickshaw and from there she took U-Spl. for South Extension. She developed intimacy with one Parveen who was residing at premises No. A-137 Preet Vihar. One day said Parveen took her to Connaught Place on the house of his friend Bittoo. Then Parveen committed rape upon her after threatening her. Bittoo, friend of Parveen had also sexual intercourse with her against her consent. Parveen took her photograph while Bittoo was committing rape upon her. However, she came to know about it. Later on when Parveen showed her photograph to her on the same day, she became very much scared and asked Parveen to return photograph. Upon this, Parveen replied that only he knew about this secret and Bittoo was his friend. Parveen also promised to marry her at the earliest. So, she did not disclosed this fact to anybody.

(iv) Thereafter accused Parveen had been blackmailing her. Parveen had been telephoning her and that is why she had been meeting him openly. In the first week of April, 94, Parveen took her to under-construction flats of a Society near Patparganj Depot after alluring and threatening her. There Sunil, Anil Rawat @ Anni, Bittoo and one more boy (whom she did not know but can identify him) met her and had sexual intercourse with her against her consent. Those boys placed the negative of thesaid photograph before her and told her that if she wants the said negative back, she had to succumb to their advances. Even after committing rape, these persons did not return the negative to the complainant. When she asked for it, they threatened to kill her brother. Hence, she did not disclose anything at her house.

(v) On 17.7.94 Parveen called her, on the pretext of returning the negative to her, at Coffee House. Parveen took her on his motor cycle to Noida i.e. in an office in an under construction building. There Anil Rawat @ Anni, Bittoo and Sunil were already present. All these boys committed rape upon her. During the rape, two of the boys had caught her. She dis-engaged herself and started crying. Parveen became scared and made the other boys to stop this. She came to her house in a bus. She was threatened that her brother will be killed. Parveen had been threatening on telephone that he will get made the poster of her photograph and get the same sticked at South Extension and near her house.

(vi) On 5.9.97 Parveen met her at Bengal Sweets, South Extension and compelled her to accompany him after showing her the said photograph. Parveen sweared that this time he will return the photograph and negative to her and they will not do anything with her. So, she had to accompany Parveen. Parveen took her in an office at second floor of a building at Darya Ganj. There a revolver and an open knife were lying on the table. There, Rohit and one more boy (whom she could identify and who was the owner of the office) were already present. Parveen told her that this was the last time and they shall not trouble her again and they would return her photograph and negative. Then all these three boys committed rape upon her turn by turn and told her that in the evening her photograph and negative will be returned. Complainant threatened to commit suicide in case her negative and photograph are not returned. Parveen sweared that at that time he had no photograph and negative with him and shall return the same at 7.30 PM near Universal Public School. So, at the appointed time she reached there. There Parveen showed her photograph and negative and compelled her to have sex with him and one Balli @ Pappu (who was already there) Parveen also committed rape upon her. Still, Parveen did not return the photograph and negative to her. Both of them left the said place on motor cycle threatening that they will spoil her brother and sisters. She was so scared that she did not tell all this episode. As she was scared and weeping in the night, her mother asked her the reason for the same. As her mother asked repeatedly, she told everything to her. Her mother conveyed the same to her father. She could identify all those places where she was raped.

(vii) Upon the statement of the prosecutrix a case U/s 506/342/376/34 IPC was registered. The prosecutrix was medically examined at SDN Hospital. Her vaginal swab was seized. The prosecutrix also produced her salvar, shirt and underwear which were also sealed and seized.

(viii) I.O. recorded the statements of other witnesses. On the pointing out of complainant, accused persons Parveen, Mukesh @ Bittoo, Ajay Singh were arrested. Rest of the accused persons Sunil Sharma, Balbir, Anil Rawat were arrested on 10.9.94 from different places. All the accused persons were medically examined and their semen samples were taken. Their disclosure statements were also recorded.

(ix) On the pointing out of accused persons, one photograph wherein Mukesh @ Bittoo was committing rape upon the prosecutrix, was recovered from the house of Parveen. The same was seized. On the pointing out of accused Parveen again, a camera, vide which the said photograph was taken was also recovered. The exhibits of the case were sent to FSL, Chandigarh. Report of CFSL was not received till the filing of the challan.

(x) The statement of the prosecutrix was also recorded U/s 164 Cr.P.C. The accused persons also pointed out the places of committing rape. After completing necessary formalities, the challan was filed U/s 342/506/501/366/376/376 (2) (G)/120-B IPC.”

3. The prosecution, in the course of the trial, relied upon the testimonies of 13 witnesses and also placed on record several exhibits. After the prosecution evidence, the learned Trial Court examined the appellants under Section 313 of Code of Criminal Procedure.

Appellant Parveen stated that since Preeti started loitering with some other boys, he refused to marry her and for this reason she falsely named him in this case. He also stated that FIR against them was registered with the connivance Sh. Markandey Singh, Ex-LG, who was a friend of the grandfather of the prosecutrix.

Appellant Mukesh @ Bittoo claimed to be falsely implicated. He stated that he had not committed any crime and he was lifted from his house by the police. He further stated that he did not have any house in Connaught Place as alleged by the prosecution and he also denied his photograph. Moreover, he came to know the appellant Parveen in June, 1994, when he came to his workshop for getting his scooter repaired.

Appellant Ajay Kumar also pleaded innocence and stated that he had been falsely implicated in this case by the prosecutrix and her parents.

Appellant Balbir Singh pleaded innocence. He stated that on 09.09.94 at about 5/6 a.m., he was going to Sanjay Lake along with his friend for a morning walk and a car came there in which four persons were seated. They enquired from him about Flat No. 561, Mayur Vihar and he showed his ignorance on which they started abusing him and some altercation took place. One person alighted from the car and caught him by his collar and forcibly push him inside the car. Thereafter, they went to the house of Parveen from where he was also lifted and ultimately brought to Police Station Adarsh Nagar and falsely implicated in this case.

Appellant Anil Rawat stated that before the registration of this case, prosecutrix was residing in his neighbourhood at Mangal Bazar, Laxmi Nagar and she had affairs with one Gagan and Kapil. He further stated that prosecutrix also had an affair with Parveen and she suspected Anil that he had informed Parveen about her affairs with Gagan and Kapil and had a grudge for this and also named him in this case and got him falsely implicated.

Appellant Sunil Sharma and Rohit Bansal stated that they had been falsely implicated at the behest of the prosecutrix.

Two defence witnesses were got examined by the appellants.

4. Appellant Ajay Singh expired during the pendency of the appeal therefore his appeal stands abated.

5. Mr. Vikas Pahwa, Senior Advocate appearing for appellant Parveen Kumar has assailed the impugned judgment on several counts being that the prosecutrix was an unchaste woman, having illicit relationship with many boys and the court below erred in not appreciating properly the evidence of the defence witnesses examined by the appellant. Elaborating his arguments, Mr. Pahwa contends that the prosecutrix had been confronted on large number of issues/facts with her statement recorded under Section 161 of Code of Criminal Procedure and embellishments/improvements are of such a large magnitude that her statement itself becomes unreliable. It is further argued that the sole testimony of prosecutrix is totally unreliable as well as full of material contradictions, concealment, improvements, exaggerations, inconsistencies and thereby does not inspire confidence and creates a genuine doubt about her version. Mr. Pahwa further added that in a case where sole testimony of the prosecutrix does not inspire confidence and corroboration, it is to be read in its totality and if the same is found improbable, in such case her testimony becomes liable to be rejected. In support of his contention, counsel relied upon the case of Rai Sandeep @ Deepu Vs. State : (2012) 8 SCC 21, wherein it has been held that :

“15. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

Reliance has also been placed on Krishan Kumar Malik Vs. State : (2011) 7 SCC 130, where Hon’ble Supreme Court has held that :

“31. No doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. But, in the case in hand, the evidence of the prosecutrix, showing several lacunae, have already been projected hereinabove, would go to show that her evidence does not fall in that category and cannot be relied upon to hold the Appellant guilty of the said offences. Indeed there are several significant variations in material facts in her Section 164 statement, Section161 statement (Code of Criminal Procedure), FIR and deposition in Court.

32. Thus, it was necessary to get her evidence corroborated independently, which they could have done either by examination of Ritu, her sister or Bimla Devi, who were present in the house at the time of her alleged abduction. Record shows that Bimla Devi though cited as a witness was not examined and later given up by the public prosecutor on the ground that she has been won over by the Appellant.”

Similarly in the case of State of Rajasthan Vs. Babu Meen : (2013) 2 SCALE 479, it has been held :

“8. We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused.

9. In the background of the aforesaid legal position, when we consider the case in hand we are of the opinion that the statement of the prosecutrix is not at all reliable or in other words wholly unreliable. No other evidence has been led to support the allegation of rape. Hence, it shall be unsafe to base the conviction on her sole testimony. In her evidence she had stated that she was subjected to rape at 12.00 noon when her sister Jitendra, the wife of the accused had gone to purchase milk. However, during the course of investigation she alleged that she was subjected to rape at 06.30 A.M. When confronted with the aforesaid contradiction in the cross-examination, she could not explain the aforesaid discrepancy. Her statement that she shouted for help when she was subjected to rape also does not find support from the evidence of Ramchandra Salvi (PW-11), the owner of the house where the incident is alleged to have taken place. Dr. Smt. Sushila (PW-12), has also not supported the allegation of rape as also the Forensic Science Laboratory Report. In the face of what we have observed above, the evidence of the prosecutrix cannot be said to be wholly reliable.

6. Secondly, Mr. Pahwa contended that there was delay in registration of FIR, which was registered on 07.09.1994 whereas the alleged first incident took place in January, 1994. It is argued that the unexplained inordinate delay of nine months in registration of the FIR raises a grave doubt in the highly belated version of the prosecutrix and the possibility of false implication cannot be ruled out. In support of his contention, Mr. Pahwa relied upon Surjan and Others Vs. State of M.P. : (2002) 10 SCC 214, wherein it has been held that :

“The inordinate delay in lodging the complaint before the police, i.e. 10 days, has not even been attempted to be explained. Even when she was examined as a witness in the Court, no question was put to her on that long delay. In a case where six indicated persons should be visited with a minimum sentence of 10 years’ RI, the Court cannot afford to act on the uncorroborated testimony of the prosecutrix unless the said evidence is wholly reliable. When looked at the testimony of PW1 from all the different angles highlighted above, we are unable to hold that has testimony is wholly reliable. In such a situation, materials for corroborating the testimony of PW1 could not be obviated. But unfortunately there is none.”

In the case of Ram Dass and Others Vs. State of Maharashtra : (2007) 2 SCC 170, the Apex Court observed that :

“Thus mere delay in lodging of the report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case and is a matter of appreciation of evidence by the court of fact.”

7. Thirdly, Mr. Pahwa contended that the allegation made by the prosecutrix has been shattered and have fallen flat by the medical evidence which clearly indicates that there was no sign of external injury on the body of the prosecutrix. It is further contended that where the oral evidence of the prosecutrix is not supported by the medical evidence, moreover it is dangerous to punish the accused for rape solely on the basis of her oral evidence. In support of his contention, counsel relied upon the case of Pratap Mishra Vs. State of Orissa : (1977) 3 SCC 41, wherein it has been held :

“9. Another aspect of the matter is that where there has been any real resistance there is bound to be local injury and marks of violence on the body and the limbs of the victim. Taylor in his book Principles and Practice of Medical Jurisprudence, Vol. II, observes thus at p. 64:

Nevertheless, it is most likely that when there has been some real resistance, local injury will be apparent and probably also marks of violence on the body and limbs.

Although according to the prosecutrix, three persons raped her with great force and violence resulting in great pain to her and her breasts becoming swollen and red and other injuries, yet when she was examined by the Doctor P.W. 8 only after 16 to 17 hours of the occurrence, the Doctor found no marks of injuries on her body at all. In this connection P.W. .& has categorically stated thus:

I examined her (P.W. 1) at 5-15 p. m. on 20-4-1972. There was no injury or bruise mark on the breasts or chest There was no injury mark on the face, thighs and over the whole body.

If the story of the prosecutrix was true, then we should have expected an injury or bruise-mark on the breasts or chest or on the thighs or other part of the body. The learned Sessions Judge, with whom the High Court has agreed, seems to have brushed aside this important circumstance on the ground that as the prosecutrix was examined by the Doctor on April 20, 1972, at about 5 P. M about 17 hours after the occurrence injuries may have disappeared and has relied on an observation of Taylor at p. 66 of his book which runs as follows:

Injuries from rape may soon disappear or become obscure, especially in women who have been used to sexual intercourse.

The Sessions Judge explained that as the prosecutrix was habituated to sexual intercourse injuries may have disappeared. While referring to one part of the observation of Taylor, the learned Sessions Judge has completely lost sight of the other part which explains the real issue and which runs thus:

After 3 or 4 days, unless there has been unusual degree of violence, no traces may be found. Where there has been much violence, the signs may of course persist longer.

Thus, if such a serious violence was caused to the prosecutrix by the appellants, the injuries are not likely to have disappeared before 2 or 3 days and the signs were bound to persist at least when she was examined by the Doctor. The absence of injuries on the person of the appellants as also on the person of the prosecutrix is yet another factor to negative the allegation of rape and to show that the appellants had sexual intercourse with the prosecutrix with her tacit consent.”

8. Another contention raised by the counsel for the appellant is that as per the case of the prosecution, the appellant used to blackmail and commit rape on the prosecutrix by extending threats of exposing her photograph and making it public, which was allegedly clicked at the time of commission of rape by the appellant Mukesh @ Bittoo in the month of January, 1994. This does not inspire confidence and truthfulness as the alleged photograph does not show the face of the prosecutrix and thus there was no apprehension of same being misused. Moreso, the prosecution in her deposition has given different versions about the first incident when she came to know about the alleged photograph for the first time. Further, the fact that the negative was available with the photograph the original is in doubt. It is alleged that in fact the negative was prepared from the photograph in question.

9. It is next argued by the counsel that the presence and identity of the girl and the appellant Bittoo in the alleged photograph is highly doubtful as the face of the girl in the alleged photograph is covered with her hands whereas the person in the alleged photograph has been observed as appellant Bittoo from his hairstyle by the learned Trial Court and the same is totally bad in law and outside the purview of the Indian Evidence Act, 1872 and the appellants could not have been convicted in the absence of proper identification.

10. The Counsel further argued that it is an admitted case of the prosecution that the prosecutrix had an affair with the appellant Parveen from 1989 to January, 1994. However, when the appellant Parveen refused to accept the marriage proposal of the prosecutrix as she was in relationship with other boys, the appellant Parveen was falsely implicated by the prosecutrix.

11. Lastly, counsel argued that the Investigating Officer has not been examined by the prosecution resulting deprival of opportunity to cross examine the Investigating Officer which caused serious prejudice to their defence. It is further argued that the prosecution has failed to bring any landlord/tenant or neighbour of the places of occurrence where prosecutrix was raped. Moreso, prosecutrix failed to identify and point out those places and no pointing out memo was prepared and placed on record.

12. In view of the aforesaid submissions, Mr. Vikas Pahwa, Senior Advocate prayed for an order of acquittal against the appellant Parveen Kumar.

13. Mr. Rajeev Gaur Naseem, Advocate appearing for the appellants Rohit Bansal and Mukesh Kumar @ Bittoo adopted the arguments advanced by Mr. Vikas Pahwa, Senior Advocate for the appellant Parveen Kumar.

14. Mr. M. L. Yadav, Advocate appearing for the respondents Balbir @ Balli and Anil Rawat also adopted the arguments advanced by Mr. Vikas Pahwa, Senior Advocate for the appellant Parveen Kumar.

15. Per contra, Mr. Feroz Khan Ghazi, Learned Counsel appearing for the State strongly refuted the submissions made by the counsel for the appellants and lent support to the judgment on conviction and order on sentence passed by the learned Trial Court. Counsel argued that theprosecution has proved their case beyond any shadow of doubt. The testimony of the sole witness so examined proves the guilt of the appellant and the findings so recorded by the learned Trial Court below do not warrant any interference. Thus, these appeals are liable to be dismissed.

16. We have heard the rival contentions of the parties and given our thoughtful consideration to the arguments advanced by them and have also perused the evidence as well as the exhibited documents carefully.

17. “Rape” or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. “Rape” not only lowers the dignity of a woman but also mars her reputation. The plight of the woman and shock suffered by the victim can be well visualized. The victim of rape grows with traumatic experience and an unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia. The torment on the victim has the potentiality to corrode the poise and equanimity of any civilized society. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The offence of “Rape” is grave by its nature, which warrants a strong deterrent by judicial hand.

In Shyam Narian Vs. The State of NCT Delhi : (2013) 7 SCC 77, the Hon’ble Supeme Court has elaborately dealt the issue as discussed in Madan Gopal Kaakar Vs. Naval Dubey and Anr. : (1992) 3 SCC 204, State of Andhra Pradesh Vs. Bodem Sundra Rao : AIR 1996 SC 530 and State of Karnataka Vs. Krishnappa : (2000) 4 SCC 75 and has held that :

“It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed.”

and in Jugendra Singh Vs. State of UP : (2012) 6 SCC 297, Hon’ble Apex Court has held :

“Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one’s physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law.”

In Lillu @ Rajesh & Ors. Vs. State of Haryana : (2013) 14 SCC 643, the Hon’ble Apex Court has observed that :

“11. In State of Punjab v. Ramdev Singh : AIR 2004 SC 1290, this Court dealt with the issue and held that rape is violative of victim’s fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution.”

18. It is a settled principle of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The statement of the prosecutrix is more reliable than any other witness. Where the testimony of victim of sexual assault instills the confidence in court, the same can be relied for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance to prudence under the given circumstances.

In Vijay @ Chinee v. State of Madhya Pradesh : (2010) 8 SCC 191, the Hon’ble Apex Court has dealt with the issue and held that :

“Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix.”

19. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the court as such, conviction can be based on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances.

20. There are catena of judgments passed by the Hon’ble Apex Court wherein it has been held that only the deposition of the prosecution by itself is also sufficient to record conviction for the offence of rape if that testimony inspires confidence and has complete link of truth. In Md. Ali Vs. State of UP : 2015 (3) SCALE 274, the Hon’ble Apex Court has held that “Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based.” and in Mohd. Iqbal v. State of Jharkhandreported in (2013) 14 SCC 481, the Hon’ble Apex Court has held that “There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses.”

Testimony of Prosecutrix PW1 Billoo @ Preeti is not reliable

21. Coming to the facts of the present case, the moot point involved for consideration in these appeals is whether evidence adduced by the prosecution on rape, particularly testimony of prosecutrix PW1 Billoo @ Preeti is trustworthy, credible and worthy of reliance?

22. In order to test the veracity of the deposition of Prosecutrix PW1 Billoo @ Preeti, it needs to be discussed threadbare. She was examined on oath in Court during trial where she deposed that respondent Parveen was residing in her neighbourhood with whom she developed friendship and the same was objected by her father but they kept on meeting. She deposed that in the month of January 1994 respondent Parveen called her to Preet Vihar Bus Stop and asked her to go on a pleasure stroll and took her to Janpath at the house of respondent Bittoo. According to her, Bittoo offered her cold drink and after consuming it she felt giddiness and when she regained consciousness she saw that Parveen was raping her. Further she deposed that when she asked for her jeans from Parveen, he forced her to allow his friend Bittoo to repeat a similar act and when she refused the same, both Parveen and Bitto used force against her and Bittoo pressed her mouth and committed rape on her. She deposed that when Bittoo was raping her, she was weeping and had covered her face with her hands at that point of time she realised that Parveen had taken her photograph. She had a fight with Parveen, who promised to marry her and thereafter she returned home.

23. In her testimony, she further deposed the second incident of rape by stating that after few months of the previous incident, Parveen came to meet her and asked her to Nirman Vihar Bus Stand where Parveen apologized. She further stated that she demanded the negatives of the photograph from him and he took her to the house of his friend Sunil at Patparganj and made her to sit and left for some work. She again asked for negatives when Parveen returned on which Parveen sought her permission to have sex with her to which she refused but Parveen forcibly had sex with her and also gave beatings to her. She deposed that when she asked for her clothes from Parveen, he told her that the clothes would be returned to her, if respondent Anil was allowed to have sex with her. According to her, Anil, Bittoo, Sunil and Manish were brought by Parveen inside the room one by one and forced themselves upon her, gave her beatings and bit on her body and raped her one after the other without her consent. She deposed that lastly, Parveen threatened her that her brother would be killed in case she disclosed the same to anyone in connection with what has happened.

24. The prosecutrix PW1 while narrating the third instance deposed that on 17.07.1994, she received a phone call from Parveen who asked her to meet at the Nirman Vihar Bus Stop. She went there and Parveen again apologized to her and promised her to return her negative and photographs and took her on his motorcycle to an office which was under construction at Noida. She deposed that Bitoo, Sunil and Anil were already present there and Parveen threatened her as he was carrying a knife and a revolver. She futher stated that his friends who were standing there were laughing and all of them including Parveen forcibly had sex with her and threatened her with dire consequences, like killing of her brother and spoiling the future of her sister in case she disclosed the incident to anybody. She also deposed that she returned to her house and did not meet them for few months.

25. PW1 Billo @ Preeti disclosed that the last incident took place on 05.09.1994, she had gone to her college and as she had some free time she went to Bengali Restaurant to search for one of her friend. There, Parveen tried to talk to her but she did not respond and Parveen threatened her if she did listen to her, her photographs would be pasted outside her house and college. Parveen showed a knife to her and asked her to accompany him which she did and he took her to the house/office of his friend Ajay in Sita Ram Bazar. Ajay and one boy named Rohit with whom she was acquainted were also present there, she further deposed that she was taken to the second floor of office/house of Ajay and saw that two revolvers were lying on the table and glasses in which if water would be poured than obscene pictures would appear. According to her, Parveen, Ajay and Rohit raped her despite her resistance. She further deposed that she was beaten and Parveen had also threatened to tear her clothes if she would create scene and consequently she would not be in a position to return home. PW1 deposed that she again asked for her photographs and negatives from Parveen and he told her to return the same at 7:30 P.M. in the Gali near Universal Public School near my house, so she returned to her home.

26. On the same day at about 7:30 P.M., when she reached there, she found Parveen with his friend Balli and Parveen Kumar. There Balli forcibly had sex with her and when she asked for her negatives and photographs, they refused and she had a quarrel with Parveen and returned home. On that night, she wept bitterly and narrated each and everything to her mother on her insistence, who further brought the facts to the notice of the father of the prosecutrix and he lodged a report with the police on next day.

27. The prosecutrix was cross-examined at length. She admitted that she and Parveen were living in Preet Vihar since 1989 and the house of Parveen was at a distance of about 1/2 minutes walk from her house. She further deposed that she first met Parveen outside her house in 1989 and between 1989 and 1990. They used to meet frequently and mostly at the bus stop. She deposed that she used to meet Parveen after school hours in Park. She stated that their school timings of return from the school were almost the same. She stated that she never told anything to her parents regarding the above meetings. She further deposed that they used to like and love each other and she saw 2/3 movies with Parveen during 1989-90. She used to leave her house on the pretext of going to visit her friend Preeti, Sonia etc. as and when inquired by her mother. They used to see English movies between 11 a.m. and 1.00 p.m. and used to bunk their school. They enjoyed tea, coffee and snacks in picture hall. That sometimes they used to leave the picture hall and go outside for a stroll; that Parveen and his parents had shifted their house but she did not know if they had shifted to AGCR Complex, in Feb. 1990, in H. No. 278; that she used to write letters to Parveen in 1990 and 1991 and give them to Parveen when they used to meet me.

28. The prosecutrix had been confronted with her statements recorded under Section 161 and 164of the Code of Criminal Procedure on several issues /facts contrary to her deposition in court, wherein she admitted the following facts which have not been recorded in her statements underSection 161 and 164 of Code of Criminal Procedure.  I told the police that I and accused Parveen used to meet in park near my house and once my father had seen us and asked me not to meet him and rebuked me but still we kept on meeting (Confronted to Ex.PW1/A and Ex.PW1/DA not recorded.)  Accused Parveen had called me at the bus stop of Preet Vihar and asked me to go on some pleasure stroll. (Confronted with Ex.PW1/A where it is not so recorded)  I did not tell the police that the accused Parveen took me to Janpath, Connaught Place while we were talking to each other. (Confronted to Portion A to A of Ex.PW1/A so recorded)  I told the police that I asked for my jeans but the same was not given to me and I was compelled to allow Bittoo to have intercourse with me; on my refusal both of them used force against me, the accused Bittoo pressed my mouth and made me lie forcibly on the ground. (Confronted with Ex.PW1/A where it is not so recorded)  I do not remember if I had told the police about my second meeting with accused Parveen in May, 1994 in my FIR (Confronted to Ex.PW1/A wherein it is not so recorded).  I do not remember if I had stated that the second instance/ incident took place in April, 1994 in Ex.PW1/A vide portion C to C.

 I told the police that I was made to sit in the said room and Parveen told me to come after five minutes and I again demanded my negatives back from him and Parveen asked me to allow him to have sex once again and I refused for the same (Confronted with Ex.PW1/A where it is not so recorded).  I told the police that the accused Parveen forcibly had sex with me and gave beatings to me. Thereafter the accused Parveen brought accused Anil inside the room and I demanded back my clothes from Parveen but he kept the same in another room. (Confronted with Ex.PW1/A where it is not so recorded)  I told the police that Parveen had told me that I would get my clothes only if I allow Anil to fuck me and when I refused, Anil used force on me and beat to me and bitten on my body and committed sex with me. (Confronted with Ex.PW1/A wherein it is not so recorded)  I told the police that thereafter accused Parveen brought the accused Bittoo inside the room and he also committed sex with me without my consent. (Confronted with Ex.PW1/A where it is not so recorded)  I told the police that thereafter accused Parveen brought accused Sunil inside the room and Sunil forced me and committed sex without my consent. (Confronted with Ex.PW1/A where it is not so recorded)  I told the police that Parveen called me to bus stop Nirman Vihar over telephone on 17.07.94 and I went there. (Confronted with Ex.PW1/A where it is not so recorded)  I told the Police that one boy named Manish also had forcible sex with me without my consent and I did not know his name and when his father and he came to my house I knew his name as Manish. (Confronted with Ex.PW1/A where it is not so recorded)  I told the police that the Parveen again threatened me and sought to have intercourse with me and was having a knife in his one hand and revolver in other hand and all the other persons were standing and laughing there.

 I told the police and Metropolitan Magistrate that I was given much beatings. (Confronted with Ex.PW1/A and Ex.PW1/DA where it is not so recorded).

 I told the police that they had threatened me to spoil my sisters (Confronted with Ex.PW1/A where it is not so recorded).  I told the police that on 05.09.1994 I had gone to my college and there was ample time for my class to be held and thus I went to Bengali Restaurant to look for my friend and where the accused Parveen tried to talk but I did not talk and further Parveen told me that if I did not talk to him he would made the posters of my photographs and would paste the same outside my house and college. (Confronted with Ex.PW1/A where the making of the posters and photographs and their affixation is not recorded on 5.9.94 but is recorded immediately before 5.9.94)  I told the police that thereafter I talked to Parveen and he at the point of knife told me to go with him and I accompanied him. (Confronted with Ex.PW1/A where it is not so recorded)  I do not remember having told the police and the Metropolitan Magistrate that accused Rohit and Ajay were already present in the above office when I went there vide portion G to G of Ex.PW1/A (It is recorded in the above portion that two culprits were already present there).

 I told the Metropolitan Magistrate that two revolvers were lying there on a table. (Confronted with Ex.PW1/DA where it is not so recorded).

 I told the police and Metropolitan Magistrate that there were some glasses in which if the water would pour, the obscene photographs could appear in the glasses. (Confronted with Ex.PW1/A and Ex.PW1/DA where it is not so recorded).  I told the police that the accused Parveen had forced me and on my refusal he with his one hand caught hold of my hand from behind and with his other hand had opened my salwar. (Confronted with Ex.PW1/A where it is not so recorded)  I told the police that the Parveen again had sex with me forcibly.

(Confronted with Ex.PW1/A where it is not so recorded)  I told the police and Metropolitan Magistrate that I was given much beatings. (Confronted with Ex.PW1/A and Ex.PW1/DA where it is not so recorded).

 I told the police that Parveen had threatened to torn my clothes and I could not be in a position to go to my house and after doing the above act the above accused persons would have no connection with me. (Confronted with Ex.PW1/A where it is not so recorded)

29. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony.

30. On careful analysis of the testimony of the prosecutrix, we find a large number of contradictions, inconsistencies, concealment, improvements and exaggerations in her statement which as noted above, which casts shadow of doubt and led us to find it difficult to rely upon her version. However, let us see whether any other evidence has been adduced by the prosecution on record to support the version of the prosecutrix.

Medical Evidence

31. Having discussed the testimony of the prosecutrix in detail, it is significant to examine whether the medical evidence adduced by the prosecution finds support from the oral testimony of the prosecutrix. Dr. Rajeev Grover examined the prosecturix on 07.09.1994, proved his report Ex.PW6/A and opined that she was not under the effect of any drug nor there was any external injury on her body and referred the case to Gynecologist for detailed examination. Dr. Ashiko Sazerou, General Hospital, Gynecologist examined the prosecutrix and she opined on the MLC (Ex-PW-6/A) that there were no external injury mark seen anywhere on the body. During the cross examination, Dr. Ashiko Sazerou, revealed certain new facts which were not mentioned in the MLC and relevant parts thereof stated by Dr. Ashiko Sazerou in her cross examination are recapitulated as under:-

“that I cannot comment on the fact that the prosecutrix P.T @ Bittoo was used to sexual intercourse because two finger could be inserted in her vagina. The reason being that some people are very relaxed and you can admit two finger so easily but the possibility of Billo @ Preeti being used to sexual intercourse cannot be rule out. I cannot say if I found in my examination that Preeti @ Billo has abortion few months prior to the examination. She did not tell me that she had an abortion. I had not found any bitting marks on the breast of the patient, on my examination.”

32. Learned Counsel for the appellants contended that as per the prosecutrix last rape was committed on 05.09.1994 at 07:30 pm in a “Kachi Gali” for half an hour to which she resisted and also sustained injuries on her body. It is submitted that the medical evidence does not support the version of the prosecutrix and contradicts the commission of the crime.

33. On perusal of the testimonies of Dr. Rajeev Grover and Dr. Ashiko Sazerou, General Hospital, Gynecologist, it has emerged that there were no biting marks on the breast of the prosecutrix nor any external injury was found on the other parts of her body. Moreso, the prosecutrix concealed the fact from the doctor conducting the MLC that she was being successively raped. Prosecution has failed to adduce any material/evidence on record in support of her aforesaid claim. Furthermore, as per the MLC possibility of prosecutrix being habitual to sexual intercourse could not be ruled out.

34. Let us now examine another significant piece of evidence which is the CFSL Report Ex.PX tendered by PW13 SI Mehak Singh in evidence. During investigation, two slides smeared with some biological secretion marked Bio/A, one white colored kameez with black polka dots on it and embroidery done extensively around the neck and the sleeves end Bio/B1, white colour salwar with black polka dots Bio/B2, a sky blue coloured ladies underwear Bio/B3 and pale white coloured fluid Bio/C to Bio/I were sent for detection of semen and its grouping to the Central Forensic Science Laboratory, Chandigarh for detection of semen and its grouping. In the report Ex.PX, Dr. Sanjeev, Senior Scientific Officer opined that no semen could be detected on Bio/BI and Bio/B2. No spermatozoa were detected, microscopically on Bio/A and eventually it was opined that no definite matching could be found out of Bio/A and Bio/3 (clothes of the prosecutrix) with Bio/C to Bio/I (Semen of the Accused). It is more than clear from MLC Ex.PW6/A and CFSL Report Ex.PX that the story of the prosecution is false and fabricated. If we believe the story of the prosecution to be true and if she was raped in a Kachhi Gali to which she resisted there is no reason that she would not have received injury. Also from the report Ex.PX, it is clear that none of the appellants got connected with the alleged crime as their semen was not detected/matched.

35. In Lalliram and Anr. v. State of Madhya Pradesh : 2008 (10) SCC 69 with regard to an offence of gang rape falling Under Section 376 (2) (g) this Court laid down the principles as under in paras 11 and 12:

11. It is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. As was observed by this Court in Pratap Misra v. State of Orissa where allegation is of rape by many persons and several times but no injury is noticed that certainly is an important factor and if the prosecutrix’s version is credible, then no corroboration is necessary. But if the prosecutrix’s version is not credible then there would be need for corroboration. (See Aman Kumar v. State of Haryana.)

12. As rightly contended by Learned Counsel for the Appellants, a decision has to be considered in the background of the factual scenario. In criminal cases the question of a precedent particularly relating to appreciation of evidence is really of no consequence. In Aman Kumar case it was observed that aprosecutrix complaining of having been a victim of the offence of rape is not an accomplice. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than the injured witness. In the latter casethere is injury in the physical form while in the former both physical as well as psychological and emotional. However, if the court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial. (Emphasis added)

36. In view of the above, the reports of doctors, who have conducted medical examination of the prosecutrix as well as the CFSL report do not co-relate the version alleged and thus the prosecution has failed to discharge its onus to prove the rape on the prosecutrix.

Authenticity of Photograph and negative

37. Mr. Pahwa, Senior Advocate argued that the photograph Ex-1/B and negative have been planted by the prosecution and the entire story of the prosecution that she was blackmailed as she was under a threat that the photograph and negative would be made public which have been clicked by Parveen when Bittoo was raping her in the month of January,1994 and that she gained further time to procure the photograph and negative is a false story.

38. In photograph Ex-PW1/B the girl has covered her face with her hands and when seen with a naked eye the girl who has covered her face cannot be identified. There appears to be no apprehension of photograph being misused as the face of the girl is not visible in Ex-PW1/B. Moreso, the recovery memo Ex-PW-10/A has not been signed by Appellant Parveen on 09.09.1994. The recovery of the photograph and the negative is doubtful. As per record the recovery of the photograph and the negative were made from Appellant Parveen on 09.09.1994 when he was arrested vide Ex-PW-10/A but does not bear his signature. The copy of the said recovery memo was given to appellant Parveen Kumar vide Ex-PW1/DA dated 07.09.1994 under the signatures of SI Ashok Rana. PW-3 ASI V.S. Nagar deposed that the photograph was recovered on 07.09.1994 and PW-13 Ashok Rana also confirmed that Parveen Kumar was arrested on 07.09.1994 at the same time there is a cutting under the signatures of Investigating Officer Prithvi Singh on Ex. PW-13/G which is recovery memo of negative dated 13.09.1994 and the signatures of Parveen Kumar appears to have been taken on a blank paper as they do not appear to be at the right place. The negative Ex. PW-1/D appears to be planted and the possibility of padding by changing the date in the recovery memo cannot be ruled out. It is also significant to note that the prosecutrix has given inconsistent versions as to when the alleged photograph was shown to her first time. The observations of the learned Trial Court “132. It is correct that I have found that there is a square border around the negative but it cannot be said with certainty that square border comes around the negatives only when the negative is made from the photograph. No photographer or expert has been produced by the defence side to elaborate this fact, so it cannot be said that the said negative was prepared from the photograph and the possibility cannot be ruled out that the film of the camera may be such which may give a square order on all the negative.

are unfounded. The learned trial Court has erroneously appreciated the evidence while observing that :

“133. I have seen accused Bittoo while appearing several times in the court. From his curly hairs, size of head and the structure, he can clearly be recognized in the photograph despite the fact that only his back is shown in the photograph. In daily routine, we can invariably recognize the persons (whom we know very well) by seeing their back or sometimes even by having a glimpse of the person.” Learned Senior Counsel has emphasized that the negatives have been prepared from the photograph in question and planted on the appellant.

39. As the learned Trial Court could not be a witness for identification of appellant Bittoo. Having said so, we are of the view that the photograph, identity of persons photographed and the genuineness of the negative have not been proved.

Delay in registration of FIR

40. It is urged on behalf of the appellants and the other respective counsel that the FIR in the present case has been lodged at a very belated stage i.e. on 07.09.1994, after about 9 months of the alleged incident which took place in January 1994. The delay has to be considered in the background of the facts and circumstances of each case and is a matter of appreciation of evidence. It is well settled that the delay in registering the FIR cannot be a ground to doubt the case of the prosecution. In cases of delay, the Courts are required to examine the evidence with a close scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully. If Court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the case of the prosecution cannot be dismissed merely on that ground. The disinclination to inform the family or report the matter to the police might be due to apprehension and attitude of the society towards the victim. Therefore, the delay in lodging the complaint in such cases does not necessarily indicate that her version is false.

41. In the present case, a series of rape committed on the prosecutrix which had started from January, 1994 and ended on 05.09.1994. In fact the prosecutrix was known to the appellant Parveen since 1989 and was having friendly relation with him and they used to meet on their way to school and also in the park. The prosecutrix as per her own Statment kept on meeting the appellant Parveen despite the opposition of her father. The prosecutrix alleged that during their friendship Parveen first raped her in January 1994 when she was served a cold drink, after consuming it she became unconscious and thereafter Parveen allowed his friend Bittoo to rape her and she was also photographed by Parveen on the basis of which he kept on blackmailing her. Finally, she disclosed this unfortunate story to her mother who further informed the same to complainant who got the FIR registered on 07.09.1994. The inordinate delay in registering the FIR casts a cloud of suspicion regarding credibility of the prosecution story when read with the testimony of prosecutrix, medical evidence and all other evidence led by the prosecution. The inordinate delay in registration of FIR and the time and opportunities which the prosecutrix had, to report the matter to the police or any other person by raising an alarm when she was forced to undergo the trauma of rape is unexplainable.

Non-examination of IO and malafide investigation

42. Mr. Pahwa, Learned Senior Counsel for the appellant Parveen and other counsel for other appellants have vehemently argued that the Investigating Officer Prithvi Singh has not stepped in the witness-box nor put to the test of cross examination and the prosecution has withheld the testimony of the most vital witness which has caused great prejudice to the appellants and his non examination is fatal to the case of prosecution. It is well settled law that the appellants can be convicted on the basis of sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. The prosecution explained that the Investigating Officer had not been examined as he has sustained injuries in his backbone and there was no likelihood of his recovery in the near future and the material documents pertaining to this case were tendered by PW-13 SI Mahak Singh of Crime Branch. Even otherwise, Investigating Officer is not a material witness for the purpose of establishing whether the appellants committed the offence for which they have been charged. Hence, non-examination of the Investigating Officer in the present case is inconsequential.

Malafide investigation

43. It has been strongly urged that the investigation in the present case is not fair but tainted as the same was under the direction of an very influential person who was a neighbour of the Grandfather of prosecutrix. From the material available on record, it is clear that the prosecutrix as well as Appellant Parveen were residents of same vicinity and the FIR was registered at Police Station, Preet Vihar. PW-3, ASI V.S. Nagar has testified that on 07.09.1994, Inspector Prithvi Singh gave him a „Tehrir‟ which was taken by him to the police station, Preet Vihar and thereafter FIR was registered in police station, Preet Vihar on the same day. PW7 HC Rakesh Kumar deposed in his statement that from 07.09.1994 he was a part of investigation team in the instant case. Though, there is nothing on record to suggest that the investigation was primarily conducted by Delhi Police and thereafter transferred to Crime Branch the same is evident from the testimonies of PW3 and PW7 that the FIR was registered in police station, Preet Vihar but from the inception i.e. from 07.09.1994, the case was formally in the hands of InvestigatingOfficer Prithvi Singh, who was posted in Crime Branch, Adarsh Nagar. This fact has also been recorded by learned Trial Court that on 07.09.1994, DCP, Crime Branch called the ACP along with Inspector Prithvi Singh, Inspector Raj Mohinder Singh of the Crime Branch in his office and instructed them to act on the complaint made by father of the prosecutrix without delay. Keeping in view the above material, we are of the opinion that the contention of learned counsel for the appellants with regard to influenced investigation cannot be ruled out.

False implication

44. The main thrust of argument as raised by Mr. Pahwa, learned Senior Counsel for appellant Parveen along with counsel for other appellants is that it is a false case in which Parveen and his friends were falsely implicated by the prosecutrix as the relationship between her and Parveen had turned sour when he came to know that prosecutrix was of easy virtue and was friendly with many other boys and refused to marry her bringing to an end the five years long relationship. It is further contended that thereafter, with the help of an influential person a false FIR was got registered and an objectionable photograph and negative, alleged to be that of prosecutrix with one of the appellant namely Bittoo, wherein the faces are not visible was planted by the Investigating Agency to implicate the appellants. It is argued that the testimony of the prosecutrix is not creditworthy and she cannot be called as a sterling witness whose version can be accepted by the court without any corroboration. The version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged. In Rai Sandeep @ Deepu Vs State of NCT of Delhi : (2012) 8 SCC 21, the Hon’ble Apex Court has held that .

“To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

45. In Narender Kumar Vs. State (NCT of Delhi) : 2012 (7) SCC 171, it has been observed :

16. It is a settled legal proposition that once the statement of prosecutrix inspires confidence and is accepted by the Court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix is a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony. (Vide:Vimal Suresh Kamble v. Chaluverapinake Apal S.P. and Anr.: AIR 2003 SC 818; andVishnu v. State of Maharashtra : AIR 2006 SC 508).

17. Where evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence.”

46. The creditworthiness of the testimony of the prosecutrix has already been discussed in the earlier part of the judgment. The prosecutrix when put to the test as laid down in Rai Sandeep @ Deepu (Supra) fails the test of being sterling witness of a high quality and caliber whose version should therefore be unassailable and such quality should be in a position to accept it on face value without any hesitation. The prosecutrix when examined in court failed to disclose her relationship with Parveen but only when during cross examination confronted with her love letter admitted that she had been writing letters to Parveen and finally also written to him that she would leave him bitten. Moreso, her statement neither stood corroborated from medical evidence nor any other material on record and the photograph Ex.PW1/DX is not free from doubt. DW1 Gagan Mehtora also testified that the prosecutrix and Parveen were known to each other for long.

47. There is no doubt that rape causes great distress and humiliation to the victim of rape but at the same time false allegation of committing a rape also causes humiliation and damage to the accused. An accused has also rights which are to be protected and the possibility of false implication has to be ruled out. The Supreme Court in Radhu vs. State of Madhya Pradeshreported in 2007 Cri. LJ 4704 had in this context noted as follows:

“The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a person has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.”

and in Abbas Ahmed Choudhary Vs. State of Assam : (2010) 12 SCC 115, the Hon’ble Supreme Court has held that:

“We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully.”

48. In Raju v. State of Madhya Pradesh (2008) 15 SCC 133, the Hon’ble Supreme Court has held that testimony of the victim of a rape cannot be presumed to be a gospel truth and observed that false allegations of rape can cause equal distress, humiliation and damage to the accused as well, in para 11, the supreme Court echoed the sentiments as under:-

“11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.”

49. Keeping in mind the above cited judgments, the testimony of prosecutrix has to be consistent and natural in line with the case of the prosecution and free from infirmities which inspire confidence in the Court. It cannot be presumed that the statement of the prosecutrix is always true or without any embellishment.

50. In the instant case, the testimony of the prosecutrix is not natural and consistent with the case of the prosecution. Her version has no correlation with other supporting material being medical, scientific and expert evidence. After rescanning the entire case in its right perspective, we are of the firm view if the evidence of the prosecutrix is read and considered in totality of the circumstances alongwith the other evidence on record, in which the offence is alleged to have been committed, we are of the view that her deposition does not inspire confidence. The version of the prosecutrix has not been corroborated with medical evidence and has not disclosed the true genesis of the crime.

51. In view of the above discussion, there is no scope to sustain conviction and sentence imposed on the appellants, resultantly, these appeals succeed and are hereby allowed. The judgment dated 03.12.1999 and order on sentence dated 08.12.1999 passed by the learned Trial Court convicting and sentencing the appellants for the offences punishable under Sections 376(2)(g)/ 342/506 (II) read with Section 34 of the Indian Penal Code, are set aside and the appellants, accordingly, acquitted of the charges framed against them. Their bail bonds shall stand discharged.

SANGITA DHINGRA SEHGAL, J.

G. S. SISTANI, J.

 

 

The bench of Justices Dipak Misra and P C Pant said the CD qualified to be treated as a document under the Evidence Act. “On a document filed by the defence, endorsement of admission or denial by the public prosecutor is sufficient and defence will have to prove the document if not admitted by the prosecution,”
The SC held that the accused, Shamsher Singh Verma, had claimed during his examination that he had been implicated in the case due to a property dispute.
Though the SC refused to delve into the authenticity of the conversations,
“We are of the view that the courts below have erred in law in not allowing the application of the defence to play the compact disc relating to conversation between father of the victim and son and wife of the appellant (accused) regarding alleged property dispute.

————————————————————-

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1525 OF 2015
(Arising out of S.L.P. (Crl.) No. 9151 of 2015)

Shamsher Singh Verma                         … Appellant

Versus

State of Haryana                             …Respondent

J U D G M E N T

Prafulla C. Pant, J.

This appeal is directed against order dated 25.8.2015, passed  by  the
High Court of Punjab and Haryana  at  Chandigarh,  whereby  said  Court  has
affirmed the order dated 21.2.2015, passed by the  Special  Judge,  Kaithal,
in Sessions Case No. 33  of  2014,  and  rejected  the  application  of  the
accused for getting exhibited the compact disc, filed in defence and to  get
the same proved from Forensic Science Laboratory.

We have heard learned counsel for the parties  and  perused  the  papers  on
record.

Briefly stated, a report was  lodged  against  the  appellant  (accused)  on
25.10.2013 at Police Station, Civil Lines, Kaithal, registered  as  FIR  No.
232 in respect of offence punishable under Section 354 of the  Indian  Penal
Code (IPC) and one relating to Protection of Children from  Sexual  Offences
Act, 2015 (POCSO) in which complainant Munish Verma alleged that  his  minor
niece was molested by the appellant.  It appears that  after  investigation,
a charge sheet is filed  against  the  appellant,  on  the  basis  of  which
Sessions Case No. 33 of 2014 was registered.  Special Judge, Kaithal,  after
hearing the parties, on 28.3.2014  framed  charge  in  respect  of  offences
punishable under Sections 354A and 376 IPC and also in  respect  of  offence
punishable under Sections 4/12 of POCSO.  Admittedly  prosecution  witnesses
have been examined in said case, whereafter statement  of  the  accused  was
recorded under Section 313 of the Code  of  Criminal  Procedure,  1973  (for
short “CrPC”).  In defence the accused has examined four witnesses,  and  an
application purported to have  been  moved  under  Section  294  CrPC  filed
before the trial court with following prayer: –

“In view of the submissions made above it is therefore prayed that the  said
gadgets may be got operated initially in the court for preserving a copy  of
the  text  contained  therein  for  further  communication  to  F.S.L.   for
establishing their authenticity.  It is further prayed  that  the  voice  of
Sandeep Verma may kindly be ordered to be taken by the experts at FSL to  be
further got matched with the recorded voice above mentioned.”

In said application dated 19.2.2015, it is alleged that there  is  recording
of conversation between Sandeep Verma (father of  the  victim)  and  Saurabh
(son  of  the  accused)  and  Meena  Kumari  (wife  of  the  accused).   The
application appears to have been opposed by the prosecution.   Consequently,
the trial court rejected the same vide order dated 21.2.2015  and  the  same
was affirmed, vide impugned order passed by the High Court.
Learned counsel for the appellant argued before us that the  accused  has  a
right to adduce the evidence in defence and the courts below have  erred  in
law in denying the right of defence.

On the other hand, learned counsel for the complainant and  learned  counsel
for the State contended that it is a case of sexual abuse of a female  child
aged nine years by his uncle, and the accused/appellant is trying to  linger
the trial.

In reply to this, learned counsel for the appellant pointed out  that  since
the accused/appellant is in jail, as such, there is no question on his  part
to protract the trial.  It is further submitted on behalf of  the  appellant
that the appellant was initially detained on  24.10.2013  illegally  by  the
police at the instance of the complainant, to settle  the  property  dispute
with the complainant and his brother.  On this Writ Petition (Criminal)  No.
1888 of 2013 was filed before the High Court for issuance of writ of  habeas
corpus.  It is further pointed out that  the  High  Court,  vide  its  order
dated 25.10.2013, appointed Warrant Officer, and the appellant was  released
on 25.10.2013 at  10.25  p.m.  Immediately  thereafter  FIR  No.  232  dated
25.10.2013 was registered at 10.35 p.m.  regarding  alleged  molestation  on
the basis of which Sessions Case is proceeding.  On behalf of the  appellant
it is also submitted that appellant’s wife Meena is sister of  Munish  Verma
(complainant) and Sandeep  Verma  (father  of  the  victim),  and  there  is
property dispute between the parties due to which  the  appellant  has  been
falsely implicated.

Mrs.  Mahalakshmi  Pawani,  learned  senior  counsel  for  the   complainant
vehemently argued that the alleged conversation  among  the  father  of  the
victim and son and wife of the appellant is subsequent to  the  incident  of
molestation and rape with a nine year old child, as  such  the  trial  court
has rightly rejected the application dated 19.2.2015.

However, at this stage we are not inclined to express any opinion as to  the
merits of the prosecution case  or  defence  version.   The  only  point  of
relevance at present is  whether  the  accused  has  been  denied  right  of
defence or not.

Section 294 CrPC reads as under: –

“294. No formal proof of certain documents. –  (1)  Where  any  document  is
filed before any Court by the prosecution or the  accused,  the  particulars
of every such document shall be included in a list and  the  prosecution  or
the accused, as the case may be, or the pleader for the prosecution  or  the
accused, if any, shall be called upon to admit or deny  the  genuineness  of
each such document.

(2) The list of documents shall be in such form as may  be  prescribed
by the State Government.

(3) Where the genuineness  of  any  document  is  not  disputed,  such
document may be read in evidence in any inquiry, trial or  other  proceeding
under this Code without proof of the signature of  the  person  to  whom  it
purports to be signed:

Provided  that  the  Court  may,  in  its  discretion,  require  such
signature to be proved.”

The object of Section 294 CrPC is to accelerate pace of  trial  by  avoiding
the time being wasted by the parties in recording the unnecessary  evidence.
Where genuineness of any document is  admitted,  or  its  formal  proof  is
dispensed with, the same may  be  read  in  evidence.   Word  “document”  is
defined in Section 3 of the Indian Evidence Act, 1872, as under: –
“ ‘Document’ means any matter expressed or described upon any  substance  by
means of letters, figures or marks, or by more  than  one  of  those  means,
intended to be used, or which may be used,  for  the  purpose  of  recording
that matter.

Illustration

A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.”

In R.M. Malkani vs. State of Maharashtra[1], this Court  has  observed  that
tape recorded conversation is admissible provided first the conversation  is
relevant to the matters in issue; secondly, there is identification  of  the
voice; and, thirdly, the accuracy  of  the  tape  recorded  conversation  is
proved by eliminating the possibility of erasing the tape record.

In Ziyauddin Barhanuddin Bukhari vs. Brijmohan Ramdass Mehra and  others[2],
it was held by this Court that tape-records of  speeches  were  “documents”,
as defined by Section 3 of the Evidence Act, which  stood  on  no  different
footing than photographs, and that  they  were  admissible  in  evidence  on
satisfying the following conditions:
“(a)  The  voice  of  the  person  alleged  to  be  speaking  must  be  duly
identified by the maker of the record or by others who know it.

(b)   Accuracy of what was actually recorded had to be proved by  the  maker
of the record and satisfactory evidence, direct or  circumstantial,  had  to
be there so as to rule out possibilities of tampering with the record.

(c)   The subject-matter recorded had to be shown to be  relevant  according
to rules of relevancy found in the Evidence Act.”

In view of the definition of ‘document’ in Evidence Act, and  the  law  laid
down by this Court, as discussed above, we hold that  the  compact  disc  is
also a document.  It is not necessary for the court to obtain  admission  or
denial on a document under sub-section (1) to Section  294  CrPC  personally
from the  accused  or  complainant  or  the  witness.   The  endorsement  of
admission or denial made by the counsel for defence, on the  document  filed
by the prosecution or on the application/report with which  same  is  filed,
is sufficient compliance of Section  294  CrPC.   Similarly  on  a  document
filed by the defence, endorsement of  admission  or  denial  by  the  public
prosecutor is sufficient and defence will have to prove the document if  not
admitted by the prosecution.  In  case  it  is  admitted,  it  need  not  be
formally proved, and can be read in evidence. In a complaint  case  such  an
endorsement can be made by the counsel for the  complainant  in  respect  of
document filed by the defence.

On going through the order dated 21.2.2015, passed by the  trial  court,  we
find that all the prosecution witnesses, including  the  child  victim,  her
mother Harjinder Kaur, maternal grandmother Parajit Kaur  and  Munish  Verma
have been examined.  Sandeep Verma (father of the victim)  appears  to  have
been discharged by the prosecution, and the evidence was closed.   From  the
copy of the  statement  of  accused  Shamsher  Singh  Verma  recorded  under
Section 313 CrPC (annexed as Annexure P-11 to the petition), it  is  evident
that in reply to second last question, the accused has alleged that  he  has
been implicated due to property  dispute.   It  is  also  stated  that  some
conversation is in possession of his son.  From the record it also  reflects
that Dhir Singh, Registration Clerk, Vipin Taneja, Document Writer,  Praveen
Kumar, Clerk-cum-Cashier, State Bank of Patiala, and Saurabh Verma,  son  of
the appellant have been  examined  as  defence  witnesses  and  evidence  in
defence is in progress.

We are not inclined to go into the truthfulness of the  conversation  sought
to be proved by the defence but, in  the  facts  and  circumstances  of  the
case, as discussed above, we are of the view  that  the  courts  below  have
erred in law in not allowing the application of the defence  to  get  played
the compact disc relating to conversation between father of the  victim  and
son and wife of the appellant regarding alleged property  dispute.   In  our
opinion, the courts below have erred in law in rejecting the application  to
play the compact disc in question to enable the public prosecutor  to  admit
or deny, and to get it sent to  the  Forensic  Science  Laboratory,  by  the
defence.  The appellant is in jail and there appears to be no  intention  on
his  part  to  unnecessarily  linger  the  trial,  particularly   when   the
prosecution witnesses have been examined.

Therefore, without expressing any opinion as to  the  final  merits  of  the
case, this appeal is allowed, and the orders passed by the courts below  are
set aside.  The application dated 19.2.2015 shall stand  allowed.   However,
in the facts and  circumstances  of  the  case,  it  is  observed  that  the
accused/appellant shall not be entitled to seek bail on the ground of  delay
of trial.

……………………..…………J.
[Dipak Misra]

.………………….……………J.
[Prafulla C. Pant]
New Delhi;
November 24, 2015.

———————–
[1]    (1973) 1 SCC 471 : 1973 (2) SCR 417
[2]    (1976) 2 SCC 17 : 1975 (Supp) SCR 281

As per Hindu law, stridhan is whatever a women receives during her lifetime including all movable, immovable property, gifts etc received prior to marriage, at the time of marriage and during child birth.

A bench of Justices Dipak Misra and Prafulla C Pant quashed the order of a trial court and Tripura High Court which had held that a woman cannot claim her stridhan after separation from her husband and criminal proceedings cannot be initiated against husband and in-laws for not handing over the properties.

It pulled up the courts for dismissing the plea of a woman on the ground that she lost the right over stridhan after judicial separation with husband. The court said that the Protection of Women from Domestic Violence Act was meant to provide an effective protection to a woman and the court should adopt sensitive approach towards such complaints.

The bench clarified that separation under court order is different from divorce and the couple remains as husband and wife, although living separately. It said under judicial separation a couple can keep their status as wife and husband till their lifetime and a wife is entitled to invoke the Act during that period if her rights are violated.

“It is quite clear that there is a distinction between a decree for divorce and decree of judicial separation; in the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the later, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped.

———————————————————————————————————–

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    1545       OF 2015
(@ SLP(Crl) No. 10223 OF 2014)

Krishna Bhatacharjee                   …   Appellant

Versus

Sarathi Choudhury and Anr.             …   Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2.    The appellant having lost the battle for  getting  her  Stridhan  back
from  her  husband,  the  first  respondent  herein,  before   the   learned
Magistrate on the ground that the claim preferred under Section  12  of  the
Protection of Women from Domestic Violence Act, 2005 (for short,  ‘the  2005
Act’) was not entertainable as she had ceased to be  an  “aggrieved  person”
under Section 2(a) of the 2005 Act and further that the claim as  put  forth
was barred by limitation; preferred an appeal before the learned  Additional
Sessions Judge  who  concurred  with  the  view  expressed  by  the  learned
Magistrate, and being determined to get her lawful claim, she,  despite  the
repeated non-success, approached the High  Court  of  Tripura,  Agartala  in
Criminal Revision No. 19 of 2014 with the hope that she will  be  victorious
in the war to get her own property, but the High Court, as  is  perceivable,
without much analysis, declined  to  interfere  by  passing  an  order  with
Spartan austerity possibly thinking lack of reasoning  is  equivalent  to  a
magnificent virtue and that had led  the  agonised  and  perturbed  wife  to
prefer the present appeal, by special leave.

3.    Prior to the narration of facts which are essential  for  adjudication
of this appeal, we may state that the 2005 Act has been legislated,  as  its
Preamble would reflect, to provide for  more  effective  protection  of  the
rights of the women guaranteed under the Constitution  who  are  victims  of
violence of any kind occurring within the family and for  matters  connected
therewith or incidental thereto.  The  2005  Act  is  a  detailed  Act.  The
dictionary clause of the 2005 Act, which we shall advert to  slightly  at  a
later  stage,  is  in  a  broader  spectrum.  The  definition  of  “domestic
violence” covers a range of violence which takes within its sweep  “economic
abuse” and the words “economic abuse”, as  the  provision  would  show,  has
many a facet.

4.    Regard being had to the nature of the legislation,  a  more  sensitive
approach is expected from the courts where under the 2005 Act no relief  can
be granted, it should never be conceived of but, before throwing a  petition
at the threshold on the ground  of  maintainability,  there  has  to  be  an
apposite discussion and thorough deliberation  on  the  issues  raised.   It
should be borne in mind that helpless and hapless “aggrieved  person”  under
the 2005 Act approaches the court under the compelling circumstances. It  is
the duty of the court to scrutinise the facts  from  all  angles  whether  a
plea advanced by the respondent to nullify the grievance  of  the  aggrieved
person is really legally sound and correct.  The principle “justice  to  the
cause is equivalent to the salt of ocean” should be kept in mind. The  court
of law is bound to uphold the truth which sparkles  when  justice  is  done.
Before throwing a petition at the threshold, it is obligatory  to  see  that
the person aggrieved under such a legislation is not faced with a  situation
of non-adjudication, for the 2005 Act as we have stated is a  beneficial  as
well as  assertively  affirmative  enactment  for  the  realisation  of  the
constitutional rights of women  and  to  ensure  that  they  do  not  become
victims of any kind of domestic violence.

5.    Presently to the narration of the  facts.  The  marriage  between  the
appellant and the respondent No. 1 was solemnised  on  27.11.2005  and  they
lived as husband and wife. As the allegations proceed, there was  demand  of
dowry by  the  husband  including  his  relatives  and,  demands  not  being
satisfied, the appellant was driven out from the matrimonial home.  However,
due to intervention of the elderly people of the locality,  there  was  some
kind of conciliation as a consequence of which  both  the  husband  and  the
wife stayed in a rented house for two months. With the efflux of  time,  the
husband filed a petition  seeking  judicial  separation  before  the  Family
Court and eventually the said prayer  was  granted  by  the  learned  Judge,
Family Court. After the judicial  separation,  on  22.5.2010  the  appellant
filed an application under Section 12 of  the  2005  Act  before  the  Child
Development Protection  Officer (CDPO), O/O the District  Inspector,  Social
Welfare & Social Education,  A.D.  Nagar,  Agartala,  Tripura  West  seeking
necessary help as per the provisions contained in the 2005 Act.  She  sought
seizure of Stridhan  articles  from  the  possession  of  the  husband.  The
application which was made  before  the  CDPO  was  forwarded  by  the  said
authority to the learned Chief Judicial  Magistrate,  Agartala  Sadar,  West
Tripura by letter dated 1.6.2010.  The learned Magistrate issued  notice  to
the respondent who filed his written objections on 14.2.2011.

6.    Before the learned Magistrate it was contended by the respondent  that
the application preferred by the wife was barred by limitation and that  she
could not have  raised  claim  as  regards  Stridhan  after  the  decree  of
judicial separation passed by the competent court.  The  learned  Magistrate
taking  into  consideration  the  admitted  fact  that  respondent  and  the
appellant had entered into wedlock treated her  as  an  “aggrieved  person”,
but opined that no “domestic relationship” as defined under Section 2(f)  of
the 2005 Act existed between  the  parties  and,  therefore,  wife  was  not
entitled to file the application under Section 12  of  the  2005  Act.   The
learned Magistrate came to  hold  that  though  the  parties  had  not  been
divorced but the decree of judicial separation would be  an  impediment  for
entertaining the application and being of  this  view,  he  opined  that  no
domestic relationship subsisted under the 2005  Act  and  hence,  no  relief
could be granted.  Be it stated here that  before  the  learned  Magistrate,
apart from herself, the appellant examined three witnesses and  the  husband
had examined himself as DW-1.  The learned  Magistrate  while  dealing  with
the maintainability of  the  petition  had  noted  the  contentions  of  the
parties as regards merits, but has really not recorded any finding  thereon.

7.    The aggrieved wife preferred criminal appeal No. 6(1)  of  2014  which
has  been  decided  by  the  learned  Additional  Sessions  Judge,  Agartala
holding, inter alia, that the object of the 2005 Act is  primarily  to  give
immediate relief to the victims; that as per the decision of this  Court  in
Inderjit Singh Grewal v. State of Punjab[1] that Section 468 of the Code  of
Criminal Procedure applies to  the  proceedings  under  the  2005  Act  and,
therefore, her application was barred by time.   Being  of  this  view,  the
appellate court dismissed the appeal.
8.    On a revision being preferred, the  High  Court,  as  is  demonstrable
from the impugned order, after referring to the decision in  Inderjit  Singh
Grewal (supra), has stated that the wife had filed  a  criminal  case  under
Section 498(A) IPC in the year 2006 and the husband had  obtained  a  decree
of judicial separation in 2008, and hence, the proceedings  under  the  2005
Act was barred by limitation.  That apart, it has also in  a  way  expressed
the view that the proceedings under the 2005 Act was not maintainable.
9.    In our prefatory note, we have stated  about  the  need  of  sensitive
approach to these kinds of cases. There can be erroneous perception of  law,
but as we find, neither the learned Magistrate nor the appellate  court  nor
the High Court has made any effort to understand and  appreciate  the  stand
of the appellant. Such type of cases and at such stage should not travel  to
this Court. We are compelled to say so as we are of the  considered  opinion
that had the appellate court and the High Court been more vigilant,  in  all
possibility, there could have been adjudication on merits.  Be  that  as  it
may.
10.   The facts that we have  enumerated  as  regards  the  “status  of  the
parties”, “judicial separation” and “the claim  for  Stridhan”  are  not  in
dispute.  Regard being had to the  undisputed  facts,  it  is  necessary  to
appreciate the scheme of the 2005  Act.   Section  2(a)  defines  “aggrieved
person”  which  means  any  woman  who  is,  or  has  been,  in  a  domestic
relationship with the respondent and who alleges to have been  subjected  to
any act of domestic  violence  by  the  respondent.   Section  2(f)  defines
“domestic relationship” which means a relationship between two  persons  who
live or have, at any point of time, lived together in  a  shared  household,
when they are related by consanguinity, marriage, or through a  relationship
in the nature of marriage, adoption or are family  members  living  together
as a joint family.  Section 2(g) defines the term “domestic violence”  which
has been assigned and given the  same  meaning  as  in  Section  3.     Sub-
section (iv) of Section 3 deals with “economic abuse”.  As in the  facts  at
hand, we are concerned with  the  “economic  abuse”,  we  reproduce  Section
3(iv) which reads as follows:-
“Section 3. Definition of domestic violence.
(iv) “economic abuse” includes-

(a) deprivation of all or any economic or financial resources to  which  the
aggrieved person is entitled under any law or custom whether  payable  under
an order of a court or otherwise or which the aggrieved person requires  out
of necessity including, but not limited to, household  necessities  for  the
aggrieved person and her children, if any, stridhan,  property,  jointly  or
separately owned by the aggrieved person, payment of rental related  to  the
shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether  movable
or immovable, valuables, shares, securities, bonds and  the  like  or  other
property in which the aggrieved person has an interest  or  is  entitled  to
use by virtue of the  domestic  relationship  or  which  may  be  reasonably
required by the aggrieved person or her children  or  her  stridhan  or  any
other property jointly or separately held by the aggrieved person; and

(c)  prohibition  or  restriction  to  continued  access  to  resources   or
facilities which the aggrieved person is entitled to use or enjoy by  virtue
of the domestic relationship including access to the shared household.

Explanation II.-For the purpose of determining whether  any  act,  omission,
commission or conduct of  the  respondent  constitutes  “domestic  violence”
under this section, the overall facts and circumstances of  the  case  shall
be taken into consideration.”

11.   Section 8(1) empowers the State Government to appoint such  number  of
Protection Officers in each district as it may consider necessary  and  also
to notify the  area  or  areas  within  which  a  Protection  Officer  shall
exercise the powers and perform the duties conferred on him by or under  the
2005 Act. The  provision,  as  is  manifest,  is  mandatory  and  the  State
Government  is  under  the  legal  obligation  to  appoint  such  Protection
Officers.  Section 12 deals with application  to  Magistrate.   Sub-sections
(1) and (2) being relevant are reproduced below:-
“Section 12.  Application  to  Magistrate.-(1)  An  aggrieved  person  or  a
Protection Officer or any other person on behalf  of  the  aggrieved  person
may present an application to the Magistrate seeking  one  or  more  reliefs
under this Act: Provided that before passing any order on such  application,
the Magistrate shall take into consideration any  domestic  incident  report
received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may  include  a  relief  for
issuance of  an  order  for  payment  of  compensation  or  damages  without
prejudice to the right of such person to institute a suit  for  compensation
or damages for  the  injuries  caused  by  the  acts  of  domestic  violence
committed by the respondent: Provided that where a decree for any amount  as
compensation or damages has been passed  by  any  court  in  favour  of  the
aggrieved person, the amount, if any, paid or payable in  pursuance  of  the
order made by the Magistrate under this Act shall be  set  off  against  the
amount payable under such  decree  and  the  decree  shall,  notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or  any
other law for the time  being  in  force,  be  executable  for  the  balance
amount, if any, left after such set off.”

12.   Section 18 deals with passing of protection orders by the  Magistrate.
Section 19 deals with  the  residence  orders  and  Section  20  deals  with
monetary reliefs.  Section 28 deals with procedure and stipulates  that  all
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences  under
Section 31 shall be governed by the  provisions  of  the  Code  of  Criminal
Procedure, 1973. Section 36 lays down that the provisions of  the  2005  Act
shall be in addition to, and not in derogation  of  the  provisions  of  any
other law, for the time being in force.
13.   Having scanned the anatomy of the 2005 Act, we may now refer to a  few
decisions of this Courts that have dealt with the  provisions  of  the  2005
Act. In V.D. Bhanot  v. Savita Bhanot[2]  the  question  arose  whether  the
provisions of the 2005  Act  can  be  made  applicable  in  relation  to  an
incident that had occurred prior to the coming into force of the  said  Act.
Be it noted, the High  Court  had  rejected  the  stand  of  the  respondent
therein that the provisions of  the  2005  Act  cannot  be  invoked  if  the
occurrence had taken place prior to the coming into force of the  2005  Act.
This Court while dealing with the same referred to the decision rendered  in
the High Court which after considering the constitutional  safeguards  under
Article 21 of the Constitution vis-à-vis the provisions of Sections  31  and
33 of the 2005 Act and after examining the Statement of Objects and  Reasons
for the enactment of the 2005 Act, had held that it was  with  the  view  of
protecting the rights  of  women  under  Articles  14,  15  and  21  of  the
Constitution that Parliament enacted the 2005 Act in order  to  provide  for
some effective protection of rights guaranteed  under  the  Constitution  to
women, who are victims of any kind of violence occurring within  the  family
and matters connected therewith and incidental thereto, and  to  provide  an
efficient and expeditious civil remedy to them and further that  a  petition
under the provisions of the 2005 Act is maintainable even  if  the  acts  of
domestic violence had been committed prior to the coming into force  of  the
said Act, notwithstanding the fact that in the past she had  lived  together
with her husband in a shared household, but was no more living with him,  at
the time when the Act came into force. After analyzing the  verdict  of  the
High Court, the Court concurred with the view expressed by  the  High  Court
by stating thus:-
“We agree with the view expressed by the High Court that in looking  into  a
complaint under Section 12 of the PWD Act, 2005, the conduct of the  parties
even prior to the coming into force of the PWD  Act,  could  be  taken  into
consideration while passing an order under Sections 18, 19 and  20  thereof.
In our view, the Delhi High Court has also  rightly  held  that  even  if  a
wife, who had shared a household in the past, but was  no  longer  doing  so
when the Act came into force, would still be entitled to the  protection  of
the PWD Act, 2005.”

14.   In Saraswathy  v.  Babu[3]  a two-Judge Bench, after referring to  the
decision in V.D. Bhanot   (supra), reiterated the  principle.  It  has  been
held therein:-
“We are of the view that the act of the respondent  husband  squarely  comes
within the ambit of Section 3 of the  DVA,  2005,  which  defines  “domestic
violence” in wide terms. The High Court made an apparent  error  in  holding
that the conduct of the parties prior to the coming into force of  the  DVA,
2005 cannot be taken into consideration while passing an order.  This  is  a
case where the respondent husband  has  not  complied  with  the  order  and
direction passed by the  trial  court  and  the  appellate  court.  He  also
misleads the Court by giving wrong statement before the High  Court  in  the
contempt petition filed by the appellant wife.  The  appellant  wife  having
being harassed since 2000 is entitled for  protection  order  and  residence
order under Sections 18 and 19 of the DVA, 2005 along with  the  maintenance
as allowed by the trial court under  Section  20(1)(d)  of  the  DVA,  2005.
Apart from these reliefs, she is also entitled for compensation and  damages
for the injuries, including mental torture and  emotional  distress,  caused
by the acts of  domestic  violence  committed  by  the  respondent  husband.
Therefore, in addition to the reliefs granted by the courts  below,  we  are
of the view that the appellant wife should be compensated by the  respondent
husband. Hence, the respondent is hereby directed to  pay  compensation  and
damages to the extent of Rs 5,00,000 in favour of the appellant wife.”

15.   In the instant case, as has been indicated earlier, the  courts  below
as well as the High Court have referred to the decision  in  Inderjit  Singh
Grewal (supra).  The said case has to be understood regard being had to  the
factual exposè therein.  The Court  had  referred  to  the  decision  in  D.
Velusamy v.  D.  Patchaiammal[4]  wherein  this  Court  had  considered  the
expression “domestic  relationship”  under  Section  2(f)  of  the  Act  and
judgment  in  Savitaben  Somabhai  Bhatiya  v.  State  of   Gujarat[5]   and
distinguished  the  said  judgments  as  those  cases  related  to   live-in
relationship without marriage.  The Court analyzing  the  earlier  judgments
opined that the couple must hold themselves out to society as being akin  to
spouses in addition to fulfilling  all  other  requisite  conditions  for  a
valid marriage. The said judgments were  distinguished  on  facts  as  those
cases related to live-in relationship without marriage.   The  Court  opined
that the parties therein had got married and the decree of the  civil  court
for divorce  subsisted and that apart a suit to declare  the  said  judgment
and  decree  as  a  nullity  was  still  pending  consideration  before  the
competent court.  In that background, the Court ruled that:-
“In the facts and circumstances of the case, the submission made  on  behalf
of Respondent 2 that the judgment and  decree  of  a  civil  court  granting
divorce is null and void and they continued to  be  the  husband  and  wife,
cannot be taken note of at this stage unless the suit filed by Respondent  2
to declare the said judgment and decree dated 20-3-2008 is  decided  in  her
favour. In view thereof,  the  evidence  adduced  by  her  particularly  the
record of the telephone calls, photographs attending a wedding together  and
her  signatures  in  school  diary  of  the  child  cannot  be  taken   into
consideration so long  as  the  judgment  and  decree  of  the  civil  court
subsists. On a similar footing, the contention advanced by her counsel  that
even after the decree  of  divorce,  they  continued  to  live  together  as
husband and  wife  and  therefore  the  complaint  under  the  2005  Act  is
maintainable, is not worth acceptance at this stage.”
[Emphasis supplied]

16.   It may be noted that a  submission  was  advanced  by  the  wife  with
regard to the applicability of Section 468 CrPC.   While  dealing  with  the
submission on the issue of limitation, the Court opined:-

“…… in view of the provisions of Section 468 CrPC,  that  the  complaint
could be filed only within a period  of  one  year  from  the  date  of  the
incident seem to be preponderous in view of the provisions  of  Sections  28
and 32 of the 2005 Act read with Rule 15(6) of the Protection of Women  from
Domestic Violence Rules, 2006 which make the provisions of  CrPC  applicable
and stand fortified by the judgments  of  this  Court  in  Japani  Sahoo  v.
Chandra Sekhar Mohanty, (2007) 7 SCC 394,  and NOIDA Entrepreneurs Assn.  v.
NOIDA,  (2011) 6 SCC 508.”

17.   As it appears, the High Court has referred to the same  but  the  same
has really not been adverted.  In fact, it is not  necessary  to  advert  to
the said aspect in the present case.
18.   The core issue that is  requisite  to  be  addressed  is  whether  the
appellant has ceased to be an “aggrieved person” because of  the  decree  of
judicial separation.  Once the decree of divorce is passed,  the  status  of
the parties becomes different, but that is not so when  there  is  a  decree
for judicial separation. A three-Judge Bench in Jeet Singh  and  Others  Vs.
State of U.P. and Others[6] though in a different context, adverted  to  the
concept of judicial  separation  and  ruled  that  the  judicial  separation
creates  rights  and  obligations.  A  decree  or  an  order  for   judicial
separation permits the parties to live apart. There would be  no  obligation
for either party to cohabit with the other. Mutual  rights  and  obligations
arising out of a marriage are suspended. The decree however, does not  sever
or dissolve the marriage. It affords an opportunity for  reconciliation  and
adjustment. Though judicial separation after a certain period may  become  a
ground for divorce, it is not necessary and the parties  are  not  bound  to
have recourse to that remedy and the parties can live keeping  their  status
as wife and husband till their lifetime.
19.   In this regard, we may fruitfully refer to the authority in  Hirachand
Srinivas Managaonkar  v.   Sunanda[7]  wherein  the  issue  that  arose  for
determination was whether the husband  who  had  filed  a  petition  seeking
dissolution of the marriage by a decree of divorce under Section  13(1-A)(i)
of the Hindu  Marriage Act, 1955 can be declined relief on the  ground  that
he had failed to pay maintenance for his wife and daughter despite an  order
of the court. The husband was appellant before this Court and had  filed  an
application under Section 10 of the Hindu Marriage  Act,  1955  for  seeking
judicial separation on the ground of adultery on the part of the  appellant.
Thereafter,  the  appellant  presented  the  petition  for  dissolution   of
marriage by decree  of  divorce  on  the  ground  that  there  has  been  no
resumption of cohabitation as between the parties  to  the  marriage  for  a
period of more than one year  after  passing  of  the  decree  for  judicial
separation. The stand of the wife was that the appellant  having  failed  to
pay the maintenance as ordered by the court, the petition for divorce  filed
by the husband was liable to be rejected  inasmuch  he  was  trying  to  get
advantage of his  own  wrong  for  getting  the  relief.    The  High  Court
accepted the plea of the wife  and  refused  to  grant  the  prayer  of  the
appellant seeking divorce. It was contended before this Court that the  only
condition  for  getting  divorce  under  Section  13(1-A)(i)  of  the  Hindu
Marriage Act, 1955 is that there has  been  no  resumption  of  cohabitation
between the parties to the marriage for a period  of  one  year  or  upwards
after the passing of the decree for judicial separation in a  proceeding  to
which both the  spouses  are  parties.   It  was  urged  that  if  the  said
condition is satisfied the court is required to pass a  decree  of  divorce.
On behalf of the wife, the said submissions were resisted on the score  that
the husband had been living in continuous adultery  even  after  passing  of
the decree of judicial separation and had reasonably failed to maintain  the
wife and daughter.  The Court proceeded to analyse Section             13(1-
A)(i) of the Hindu Marriage Act, 1955. Analysing the  provisions  at  length
and speaking about judicial separation, it expressed that after  the  decree
for judicial separation was passed on the petition filed by the wife it  was
the duty of both the spouses to do their part for cohabitation. The  husband
was expected to act as a dutiful husband towards the wife and the  wife  was
to act as a devoted wife towards the husband. If this concept  of  both  the
spouses  making  sincere  contribution  for  the   purpose   of   successful
cohabitation after a judicial separation is ordered then it  can  reasonably
be said that in the facts and circumstances  of  the  case  the  husband  in
refusing to pay maintenance to the wife failed to act as a husband.  Thereby
he committed a “wrong”  within  the  meaning  of  Section  23  of  the  Act.
Therefore, the High Court was justified in declining to allow the prayer  of
the husband for dissolution of the marriage by divorce under  Section  13(1-
A) of the Act.
20.   And, the Court further stated thus:-
“… The effect of the decree is that certain mutual rights and  obligations
arising from the marriage are as  it  were  suspended  and  the  rights  and
duties prescribed in the decree are substituted  therefor.  The  decree  for
judicial separation does not  sever  or  dissolve  the  marriage  tie  which
continues  to  subsist.  It  affords  an  opportunity  to  the  spouse   for
reconciliation and readjustment. The decree may fall by  a  conciliation  of
the parties in which case the rights of the respective parties  which  float
from the marriage and were suspended are restored. Therefore the  impression
that Section 10(2) vests a right in the petitioner  to  get  the  decree  of
divorce notwithstanding the fact that  he  has  not  made  any  attempt  for
cohabitation with the respondent and has even acted in a  manner  to  thwart
any move for cohabitation does not flow from a reasonable interpretation  of
the statutory provisions. At the cost of repetition it may  be  stated  here
that the  object  and  purpose  of  the  Act  is  to  maintain  the  marital
relationship between the spouses and  not  to  encourage  snapping  of  such
relationship.”

21.   It is interesting to note that  an  issue  arose  whether  matrimonial
offence of adultery had  exhausted  itself  when  the  decree  for  judicial
separation was granted and, therefore, it cannot be said that it  is  a  new
fact or circumstance amounting to wrong which will stand as an  obstacle  in
the way of the husband to obtain the relief which he claims in  the  divorce
proceedings.  Be it stated that reliance  was  placed  on  the  decision  of
Gujarat High Court in Bai Mani v. Jayantilal Dahyabhai[8].  This  Court  did
not accept the contention by holding that living in adultery on the part  of
the husband is a continuing matrimonial offence, and it does not get  frozen
or wiped out merely on passing of a decree  for  judicial  separation  which
merely suspends certain duties and obligations of the spouses in  connection
with their marriage and does not snap the matrimonial tie. The  Court  ruled
that the decision of the Gujarat High Court does not lay  down  the  correct
position of law. The Court approved the principle stated by the Madras  High
Court in the case of Soundarammal v. Sundara Mahalinga Nadar[9] in  which  a
Single Judge had taken the view that the husband who continued  to  live  in
adultery even after decree at the instance of the wife could not succeed  in
a petition seeking decree for divorce and that Section 23(1)(a)  barred  the
relief.
22.   In view of the aforesaid pronouncement, it is quite clear  that  there
is a distinction between  a  decree  for  divorce  and  decree  of  judicial
separation; in the former, there is a severance of status  and  the  parties
do not remain as husband and wife, whereas in the  later,  the  relationship
between husband and wife continues and the legal relationship  continues  as
it has not been snapped.  Thus  understood,  the  finding  recorded  by  the
courts below which have been concurred by the High Court  that  the  parties
having been judicial separated, the appellant  wife  has  ceased  to  be  an
“aggrieved person” is wholly unsustainable.
23.   The  next  issue  that  arises  for  consideration  is  the  issue  of
limitation. In the application preferred by the wife, she  was  claiming  to
get back her stridhan.  Stridhan has been  described  as  saudayika  by  Sir
Gooroodas Banerjee in “Hindu Law of  Marriage  and  Stridhan”  which  is  as
follows:-
“First, take the case of property obtained by gift.  Gifts  of  affectionate
kindred, which are known by the name of  saudayika  stridhan,  constitute  a
woman’s absolute property, which she has at all times independent  power  to
alienate, and over which her husband has only  a  qualified  right,  namely,
the right of use in times of distress.”

24.   The said passage, be it noted, has been quoted Pratibha Rani v.  Suraj
Kumar and Another[10]. In the  said  case,  the  majority  referred  to  the
stridhan as described in “Hindu Law” by   N.R.  Raghavachariar  and  Maine’s
“Treatise on Hindu Law”. The  Court  after  analyzing  the  classical  texts
opined that:-
”It is, therefore, manifest  that  the  position  of  stridhan  of  a  Hindu
married  woman’s  property  during  coverture  is   absolutely   clear   and
unambiguous; she is the absolute owner of such property and  can  deal  with
it in any manner she likes — she may spend the whole of it or give  it  away
at her own pleasure by gift or will without any reference  to  her  husband.
Ordinarily, the husband has no  right  or  interest  in  it  with  the  sole
exception that in times of extreme distress, as in famine,  illness  or  the
like, the husband can utilise it but he is morally bound to  restore  it  or
its value when he is able to do so. It may be further noted that this  right
is purely personal to the husband and the property so  received  by  him  in
marriage cannot be proceeded against even  in  execution  of  a  decree  for
debt.”

25.   In the said case, the Court ruled:-
“… a pure and simple entrustment of stridhan without creating  any  rights
in the husband excepting putting the articles in  his  possession  does  not
entitle him to use the same  to  the  detriment  of  his  wife  without  her
consent. The husband  has  no  justification  for  not  returning  the  said
articles as and when demanded by the wife nor can he burden her with  losses
of business by using the said property  which  was  never  intended  by  her
while  entrusting  possession  of  stridhan.  On  the  allegations  in   the
complaint, the husband is no more  and  no  less  than  a  pure  and  simple
custodian acting on behalf of his wife  and  if  he  diverts  the  entrusted
property elsewhere or for different  purposes  he  takes  a  clear  risk  of
prosecution under Section 406 of the IPC. On a parity of  reasoning,  it  is
manifest that the husband, being only a custodian of  the  stridhan  of  his
wife, cannot be said to be in joint possession thereof and  thus  acquire  a
joint interest in the property.”

26.   The decision rendered in the said case was referred for a  fresh  look
by a three-Judge Bench. The three-Judge Bench Rashmi Kumar (Smt)  v.  Mahesh
Kumar Bhada[11] while considering the issue in the said case, ruled that :-

“9. A woman’s power of disposal, independent of her  husband’s  control,  is
not confined to saudayika but extends to other properties  as  well.  Devala
says: “A  woman’s  maintenance  (vritti),  ornaments,  perquisites  (sulka),
gains (labha), are her stridhana. She herself has  the  exclusive  right  to
enjoy it. Her husband has no right to use it except in distress….”  In  N.R.
Raghavachariar’s Hindu Law — Principles and Precedents,  (8th  Edn.)  edited
by Prof. S. Venkataraman, one of the renowned Professors of Hindu  Law  para
468 deals with “Definition of Stridhana”. In para 469 dealing with  “Sources
of acquisition” it is stated that the sources of acquisition of property  in
a woman’s possession  are:  gifts  before  marriage,  wedding  gifts,  gifts
subsequent to marriage etc. Para 470 deals with “Gifts to  a  maiden”.  Para
471 deals with “Wedding gifts” and it  is  stated  therein  that  properties
gifted at the time of  marriage  to  the  bride,  whether  by  relations  or
strangers, either Adhiyagni or Adhyavahanika, are the bride’s stridhana.  In
para 481 at page 426, it is stated that ornaments presented to the bride  by
her husband or  father  constitute  her  Stridhana  property.  In  para  487
dealing with “powers during coverture” it is stated that  saudayika  meaning
the gift of affectionate kindred, includes both Yautaka  or  gifts  received
at the time of marriage as well as its  negative  Ayautaka.  In  respect  of
such property, whether given by gift or will she is the absolute  owner  and
can deal with it in any way she likes. She may spend, sell or give  it  away
at her own pleasure.

10. It is thus clear that the properties gifted to her before the  marriage,
at the time of marriage or at the time of giving farewell or thereafter  are
her stridhana properties. It is her absolute property  with  all  rights  to
dispose at her own pleasure. He has no control over her stridhana  property.
Husband may use it during the time of his distress but nonetheless he has  a
moral obligation to restore the same or its value to  his  wife.  Therefore,
stridhana property does not become a joint property  of  the  wife  and  the
husband and the husband has  no  title  or  independent  dominion  over  the
property as owner thereof.”

27.   After so stating the Court proceeded to rule that  stridhana  property
is the exclusive property of the  wife  on  proof  that  she  entrusted  the
property or dominion over the stridhana  property  to  her  husband  or  any
other member of the family, there  is  no  need  to  establish  any  further
special agreement to establish that the property was given  to  the  husband
or other member of the family.  Further,  the  Court  observed  that  it  is
always a question of fact in each case as to how the  property  came  to  be
entrusted to the husband or any other member of the family by the wife  when
she left the matrimonial home or was driven out therefrom.  Thereafter,  the
Court adverted to the concept of entrustment and eventually  concurred  with
the view in the case of Pratibha Rani (supra). It is necessary to note  here
that the question  had  arisen  whether  it  is  a  continuing  offence  and
limitation could begin to run everyday lost its relevance in the said  case,
for the Court on scrutiny came to hold that the complaint preferred  by  the
complainant for the  commission  of  the  criminal  breach  of  trust  under
Section 406 of the Indian Penal Code was within limitation.
28.   Having appreciated the concept of Stridhan, we shall  now  proceed  to
deal with the meaning of “continuing  cause  of  action”.   In  Raja  Bhadur
Singh v. Provident Fund Inspector and Others[12]  the  Court  while  dealing
with the continuous offence opined that the expression “continuing  offence”
is not defined in the Code but that is because the expressions which do  not
have a fixed connotation or a static import are difficult to  define.    The
Court referred to the  earlier  decision  in  State  of  Bihar  v.  Deokaran
Nenshi[13] and reproduced a passage from the same which is to the  following
effect:-
“A continuing offence is one which is  susceptible  of  continuance  and  is
distinguishable from the one which is committed once and for all. It is  one
of those offences which arises out of a failure to obey  or  comply  with  a
rule or its requirement and which involves  a  penalty,  the  liability  for
which continues until the rule or its  requirement  is  obeyed  or  complied
with. On every occasion that such disobedience or non-compliance occurs  and
reoccurs, there is the offence committed. The distinction  between  the  two
kinds of offences is  between  an  act  or  omission  which  constitutes  an
offence once and for all  and  an  act  or  omission  which  continues,  and
therefore, constitutes a fresh offence every time or occasion  on  which  it
continues.  In  the  case  of  a  continuing  offence,  there  is  thus  the
ingredient of continuance of the offence which is absent in the case  of  an
offence which takes place when an act or omission is committed once and  for
all.”

29.    The Court further observed :-
“This passage shows that apart from saying that a continuing offence is  one
which continues and a non-continuing offence is one which is committed  once
and for all, the Court found it difficult to explain as to when  an  offence
can be described as a continuing offence. Seeing that difficulty, the  Court
observed that  a  few  illustrative  cases  would  help  to  bring  out  the
distinction between a continuing offence and a non-continuing  offence.  The
illustrative cases referred to by the Court  are  three  from  England,  two
from Bombay and one from Bihar.”

30.    Thereafter, the Court referred to the  authorities  and  adverted  to
Deokaran Nenshi (supra) and eventually held:-
“The question whether a particular offence  is  a  continuing  offence  must
necessarily depend upon the language  of  the  statute  which  creates  that
offence, the nature of the offence and, above  all,  the  purpose  which  is
intended  to  be  achieved  by  constituting  the  particular  act   as   an
offence…”

31.   Regard being had to the aforesaid statement of law,  we  have  to  see
whether retention of stridhan by the husband or any other family members  is
a continuing offence or not.  There can be no dispute that wife can  file  a
suit for realization of the stridhan but it does not debar her  to  lodge  a
criminal complaint for criminal breach of trust.  We  must  state  that  was
the situation before the 2005 Act came into force.  In  the  2005  Act,  the
definition of “aggrieved person” clearly postulates about the status of  any
woman who has been subjected to domestic violence as defined  under  Section
3 of the said Act.  “Economic abuse” as  it  has  been  defined  in  Section
3(iv) of the said Act has a large canvass.  Section 12, relevant portion  of
which  have  been  reproduced  hereinbefore,  provides  for  procedure   for
obtaining orders of reliefs.  It has been  held  in  Inderjit  Singh  Grewal
(supra) that Section 498 of the Code of Criminal Procedure  applies  to  the
said case under the 2005 Act as envisaged under Sections 28 and  32  of  the
said Act read with Rule 15(6) of  the  Protection  of  Women  from  Domestic
Violence Rules, 2006.   We need not advert to the same  as  we  are  of  the
considered opinion that as long  as  the  status  of  the  aggrieved  person
remains and stridhan remains in the custody of the  husband,  the  wife  can
always put forth her claim  under  Section  12  of  the  2005  Act.  We  are
disposed to think so as the  status  between  the  parties  is  not  severed
because  of  the  decree  of  dissolution  of  marriage.  The   concept   of
“continuing  offence”  gets  attracted  from  the  date  of  deprivation  of
stridhan, for neither the husband nor any other family members can have  any
right over the stridhan and they remain the custodians.  For the purpose  of
the 2005 Act, she can submit an application to the  Protection  Officer  for
one or more of the reliefs under the 2005 Act.  In  the  present  case,  the
wife had submitted the application on 22.05.2010 and the said authority  had
forwarded  the  same  on  01.06.2010.  In  the  application,  the  wife  had
mentioned that the husband had stopped payment of monthly  maintenance  from
January 2010 and, therefore, she had been compelled to file the  application
for stridhan. Regard being had to the said concept of  “continuing  offence”
and the demands made, we are disposed to think that the application was  not
barred by limitation and the courts below as well  as  the  High  Court  had
fallen into a grave error by dismissing  the  application  being  barred  by
limitation.
32.   Consequently, the appeal is allowed and the orders passed by the  High
Court and the courts below are set aside.  The matter  is  remitted  to  the
learned Magistrate to proceed with the application under Section 12  of  the
2005 Act on merits.

………………………..J.
[Dipak Misra]

………………………, J.
[Prafulla C. Pant]
New Delhi
November 20, 2015

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : INDIAN PENAL CODE

CRL.M.C. 83/2012

Date of Decision:20.03.2012

G.Vetrivel Sami @ Swami …… Petitioner Through: Mr.Aman Mehta, Advocate.

Versus

CBI …..Respondent Through: Ms.Sonia Mathur & Mr.Sushil Dubey, Advocates.

CORAM: HON’BLE MR. JUSTICE M.L. MEHTA M.L. MEHTA, J.

1. Vide this petition under Section 482 CrPC, the petitioner seeks to modify the bail order dated 03rd June, 2006 of Special Judge, CBI and the order dated 08.12.2011 of ASJ dismissing his application seeking modification of the said bail order dated 03rd June, 2006.

2. The petitioner is facing prosecution in CBI case under Sections 255/258/259/260/420/471/120B IPC. He was granted bail by the then Special Judge on 03rd June, 2006 subject to the following conditions: “(i) That accused shall not leave India without permission of the Court. (ii) That he shall surrender his passport, if any to the CBI. (iii) That he shall not tamper with the evidence. (iv) That he shall not have contact with any of the prosecution witnesses. (v) Further, if the trial is delayed on the account of dilatory tactics adopted by the accused, that itself can be treated as a ground for cancellation of bail”.

3. The petitioner was granted permission to go abroad by the Trial Court for specific periods as many as four times. Every time, the permission was granted by the Court for specific period subject to the petitioner furnishing FDR of Rs. 1 lakh and NOC from both the sureties as also the itinerary and contact numbers of his travel period. On two occasions i.e. 25th February, 2009 and 04th March, 2009, his permission to travel abroad was declined by the Trial Court.

4. The petitioner filed an application for modification of the bail order dated 03rd June, 2006, which came to be dismissed by the ASJ vide the impugned order dated 08th December, 2011. While dismissing the application, the learned ASJ reasoned as under: “I have considered the rival submissions. The allegations against the applicant are serious in nature. There are allegations that he was involved in fake stamp network of accused Abdul Karim Telgi. There are allegations that he was actively involved in the sale of counterfeit stamps. The applicant was granted bail in the year 2006. Since 2006, the applicant has travelled only thrice to CIS countries on 16.10.2010, 14.02.2011 and 08.07.2011. He is not a frequent visitor. The Spl. PP for CBI has submitted that whenever permission is applied by applicant to go abroad, the CBI verifies the fact whether petitioner is actually required to go abroad or not? If the conditions are modified, there will be no check on the petitioner and he can misuse the liberty. In my opinion, the conditions imposed upon the applicant are not unjustified. Ld. ASJ Sh. V.B.Gupta (as his Lordship then was) while granting bail had imposed the conditions keeping in mind the serious nature of offence and role of the accused. In my opinion there are no grounds to modify the same”.

5. The petitioner has assailed the said order dated 08th December, 2011 of ASJ and sought modification of the aforesaid conditions of the bail order dated 03rd June, 2006. It is submitted that the petitioner was earlier engaged in travel agency business and was required to travel abroad and since the permission was declined by the Trial Court on two occasions and he could not travel, he had to ultimately close his said travel and tour business. It is further submitted that the petitioner is now engaged in consultancy of drugs and medicines for CIS countries and his business requires travelling to these countries. It is submitted that the procedure for seeking permission from the Trial Court for going abroad was cumbersome inasmuch as every time, he was to furnish FDR and also obtain NOCs from two sureties which takes considerable time. It is submitted that the petitioner has his permanent residence and business at Delhi and his wife, who is one of his sureties is also employed in a permanent Government service in Delhi for the past 19 years. It is next submitted that the petitioner has already gone abroad four times with the permission of the Trial Court and has never violated or misused the liberty granted to him.

6. Per contra, it was submitted by the learned Standing Counsel for CBI that the petitioner is involved in the offence of counterfeiting the stamps to different countries, which was an offence against the society at large and that, the case being at the trial stage for recording of the prosecution evidence, the blanket permission would impact and delay the trial of the case. It is submitted that the petitioner has only travelled thrice in the last five years and there does not appear to be any need for blanket permission. It was next submitted that seeking of the permission from the Trial Court for the purpose of going abroad, in any way, cannot be said to cause any inconvenience to the petitioner.

7. There is no dispute that the petitioner is facing trial in a serious nonbailable offence and that, the Court while exercising discretion to enlarge the accused on bail could impose such conditions as may be deemed fit and appropriate in the given facts and circumstances. The petitioner at the time of his release on bail on 3rd June, 2006 was engaged in travel and tour business in different countries. The court while exercising its discretion in granting bail imposed the aforesaid conditions. Invariably, the courts do impose some conditions with the objective to ensure not only the fair investigation and trial, but that the accused does not flee from the process of law or tamper with the evidence. It is towards this that in appropriate cases, the accused is also directed to surrender his passport or not to undertake travel abroad without the permission of the court. While imposing any condition at the time of grant of bail, the courts are guided by various factors such as the nature of offence, the status of the accused, his financial condition, his roots in society, his frequency of travelling, his proximity with the witnesses, his contacts here and abroad and propensity to commit offences etc. These are only illustrative and list of such guiding factors cannot be exhaustive. At the same time, the court has to be mindful of the fact that any such condition has to be imposed keeping in view the fundamental right of personal liberty of a person. The conditions which should be imposed must be workable, practical and reasonable and should not be harsh, vindictive and undue infringing personal liberty of a person. The overall object of the imposing such condition has to be kept in mind that is to ensure the submission of the accused to the process of law and not to try to cause any hindrance in the fair trial. It is reiterated that this will all depend upon the wisdom of the judge and the facts and circumstances of each case. There cannot be any straight jacket guideline in this regard.

8. In the given facts and circumstances, when the petitioner has already travelled abroad several times, now the mere fact of the seriousness or the gravity of the offence alone may not be enough to decline permission to travel abroad. In the present case, the accused was permitted to travel abroad four times and every time, he complied with the conditions imposed by the Trial Court. Of course, he was also denied to travel abroad on two occasions as the Trial Judge did not think it appropriate to exercise discretion at that point of time. It is not that the discretion exercised at that time was arbitrary or non-judicious. The time at which such a discretion is sought to be exercised is also an important factor of relevance. It is noticed that every time, when permission was granted to the petitioner to travel abroad, he submitted FDR of Rs. 1 lakh to be kept alive during the travel period and also NOCs from the sureties. One of his surety is none else but his wife, who is a permanent employee of Delhi Government for the last 19 years. Furnishing FDR and obtaining NOCs at every time on the occasion of visit abroad may be reasonable at one point of time, but then, the same can become onerous and harsh at another point of time. In the given set of system, it may also involve mental torture and running around.

9. The petitioner stated having started his consultancy business with CIS countries and so, he would be required to travel abroad frequently. Though, he has travelled abroad only about four times in five years, but, that was presumably because of onerous conditions and the reason of petitioner having stopped his business of travel and tours. In the given facts and circumstances, I am of the view that the petitioner is now entitled to enjoy personal liberty without seeking permission from the court every time under onerous and harsh conditions. In the entire factual matrix, I am inclined to modify the conditions of bail so as to ensure the fair trial and also submission of the petitioner to the process of law. Accordingly, the first and second conditions imposed vide order dated 03rd June, 2006 are modified and substituted as under: (1) The petitioner shall not leave the country without informing the Trial Court a week in advance of his visiting abroad and shall furnish the complete itinerary stating the country/countries, which he intends to visit and the period of his stay as also the addresses where he would be staying and his contact numbers. He shall also inform the Trial Court in writing about his return to India within a week thereof. Further, he shall not travel abroad during the period when the case is listed for evidence and his presence is required, unless already dispensed. (2) While intending to go abroad, he shall furnish a bank guarantee or FDR of Rs. 5 lakhs in the Trial Court, which shall be kept alive till the period he returns and informs the court.

10. Rest of the conditions of the order dated 03rd June, 2006 shall remain unaltered. The liberty is also granted to the respondent/CBI to get this order revoked in the event of the petitioner failing to comply with these modified conditions at any point of time during the trial. Copy of this order be circulated amongst judicial officers of District Judiciary.

11. The petition stands disposed of with the above directions and observations.

Sd/- M.L. MEHTA, J. MARCH 20, 2012

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