The Hon”ble Supreme Court held that:-

In the absence of such guidelines in India, Courts go  by  their
own perception about the philosophy behind the prescription of certain
specified penal consequences for particular nature of crime. For  some
deterrence and/or vengeance becomes  more  important  whereas  another
Judge may be more influenced by rehabilitation or restoration  as  the
goal of sentencing.  Sometimes, it would  be  a  combination  of  both
which would weigh in the mind of the Court in  awarding  a  particular
sentence. However, that may be question of quantum.
What follows from the discussion behind the purpose of  sentencing  is
that if a particular crime is to  be  treated  as  crime  against  the
society  and/or  heinous  crime,  then  the  deterrence  theory  as  a
rationale for punishing the offender  becomes  more  relevant,  to  be
applied in such cases.  Therefore, in respect of such  offences  which
are treated against the society, it becomes the duty of the  State  to
punish the offender.  Thus, even when there is  a  settlement  between
the offender and the victim, their will would not prevail as  in  such
cases the matter is  in  public  domain.   Society  demands  that  the
individual offender  should  be  punished  in  order  to  deter  other
effectively as it amounts to greatest good of the greatest  number  of
persons in a  society.   It  is  in  this  context  that  we  have  to
understand the scheme/philosophy behind Section 307 of the Code.

We would like to expand this principle in some more  detail.  We
find, in practice and in reality, after recording the  conviction  and
while awarding the sentence/punishment the Court is generally governed
by any or all or combination of the aforesaid factors.  Sometimes,  it
is the deterrence theory which prevails in the  minds  of  the  Court,
particularly in those cases where the crimes committed are heinous  in
nature or depicts depravity, or lack  morality.  At  times  it  is  to
satisfy the element of  “emotion”  in  law  and  retribution/vengeance
becomes the guiding factor.  In any case, it cannot be denied that the
purpose  of  punishment  by  law   is   deterrence,   constrained   by
considerations  of  justice.  What,  then,  is  the  role  of   mercy,
forgiveness and compassion in law?  These are by no means  comfortable
questions and even the answers may not be comforting.   There  may  be
certain cases which are too obvious  namely  cases  involving  heinous
crime with element of criminality against the society and not  parties
inter-se.  In such cases, the  deterrence  as  purpose  of  punishment
becomes paramount and even if the victim or his relatives  have  shown
the virtue and gentility, agreeing to forgive the culprit,  compassion
of that private party would not move the court in accepting  the  same
as larger and more important public policy of showing the iron hand of
law to the wrongdoers, to reduce the commission of such  offences,  is
more important. Cases of murder, rape, or other sexual  offences  etc.
would clearly fall in this category.  After all, justice requires long
term vision.  On the other hand, there may be, offences falling in the
category where “correctional” objective of criminal law would have  to
be given more weightage  in  contrast  with  “deterrence”  philosophy.
Punishment, whatever else may be, must be fair and conducive  to  good
rather than further evil.  If in a particular case the Court is of the
opinion that the settlement between the parties  would  lead  to  more
good; better relations between them; would prevent further  occurrence
of such encounters between the parties, it may hold settlement  to  be
on a better pedestal.  It  is  a  delicate  balance  between  the  two
inflicting interests which is  to  be  achieved  by  the  Court  after
examining all these parameters and then deciding as to which course of
action it should take in a particular case.

========================================================================

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.686/2014

(arising out of S.L.P.(Criminal) No.9547 of 2013)

Narinder Singh & Ors.                              ……Appellants

Vs.

State of Punjab & Anr.                             …Respondents

J U D G M E N T

A.K.SIKRI,J.

1.    The present Special Leave Petition has  been  preferred  against
the impugned judgment/final order dated 8.10.2013 passed by  the  High
Court of Punjab and Haryana at Chandigarh  in  Criminal  Miscellaneous
Petition No.27343/2013. It was a petition under  Section  482  of  the
Code of Criminal Procedure (hereinafter referred to as the “Code”) for
quashing   of   FIR   No.121/14.7.2010   registered   under   Sections
307/324/323/34,IPC, on the basis of compromise dated 22.7.2013 entered
into between the petitioners ( who are accused in the  said  FIR)  and
respondent No.2 (who is the complainant).  The High Court has  refused
to exercise its extraordinary discretion invoking  the  provisions  of
Section 482 of the Code on the ground that four injuries were suffered
by the complainant and as per the opinion of the Doctor,  injury  No.3
were serious in nature.  The High Court, thus, refused to  accept  the
compromise entered into between the parties, the effect whereof  would
be that the petitioners would face trial in the said FIR.

2.    Leave granted.

3.    We have heard counsel for the parties at length.

4.    It may be stated at the outset that the petitioners herein,  who
are three in number, have been charged under various provisions of the
IPC including for committing offence punishable under Section 307, IPC
i.e. attempt to commit murder.  FIR No.121/14.7.2010  was  registered.
In the aforesaid FIR, the allegations against the petitioners are that
on 9.7.2010 at 7.00 A.M.  while  respondent  No.2  was  going  on  his
motorcycle to bring diesel from village Lapoke, Jasbir Singh, Narinder
Singh both sons of Baldev Singh and Baldev Singh son  of  Lakha  Singh
attacked him and injured him. Respondent No.2  was  admitted  in  Shri
Guru Nanak Dev Hospital, Amritsar. After examination the doctor  found
four injuries on his person. Injury No.1 to 3  are  with  sharp  edged
weapons and injury No.4 is simple. From the statement of  injured  and
MLR’s report, an FIR under sections  323/324/34  IPC  was  registered.
After X-ray report relating to injury No.3, section 307 IPC was  added
in the FIR

5.     After  the  completion  of  investigation,  challan  has   been
presented in the Court against the petitioners and charges  have  also
been framed. Now the  case  is  pending  before  the  Ld.Trial  Court,
Amritsar, for evidence.

6.    During the pendency of trial proceedings, the  matter  has  been
compromised between the petitioners as well as the private  respondent
with the intervention of the Panchayat on 12.07.2013.    It  is  clear
from the above that  three  years  after  the  incident,  the  parties
compromised the matter with  intervention  of  the  Panchayat  of  the
village.

7.    It is on the basis of this  compromise,  the  petitioners  moved
aforesaid criminal petition under section 482 of the Code for quashing
of the said FIR.  As per the petitioners, the parties have settled the
matter, as they have decided to keep harmony between  them  to  enable
them to live with peace and love.  The compromise  records  that  they
have no grudge against each other and the complainant has specifically
agreed that he has no objection if the FIR  in  question  is  quashed.
Further, both the parties  have  undertaken  not  to  indulge  in  any
litigation against each other and withdraw all the complaints  pending
between the parties before the  court.   As  they  do  not  intend  to
proceed with any criminal case against each other, on that  basis  the
submission of the petitioners before the  High  Court  was  that   the
continuance of the criminal proceedings in the aforesaid FIR will be a
futile exercise and mere wastage of precious time of the court as well
as investigating agencies.

8.    The aforesaid submission, however,  did  not  impress  the  High
Court as the medical report depicts the injuries  to  be  of  grievous
nature. The question for consideration, in these circumstances, is  as
to whether the court should have accepted the  compromise  arrived  at
between the parties and quash the FIR as well as criminal  proceedings
pending against the petitioner.

9.    The ld. counsel  for  the  State  has  supported  the  aforesaid
verdict of the High Court arguing that since offence under Section 307
is non-compoundable, the respondents could  not  have  been  acquitted
only because of the reason  that  there  was  a  compromise/settlement
between  the  parties.   In  support,  the  learned  counsel  for  the
respondent-State has relied upon the judgment of  this  Court  in  the
case of Rajendra Harakchand Bhandari vs. State of  Maharashtra  (2011)
13 SCC 311 wherein this Court held that since  offence  under  Section
307 is not compoundable, even when the parties had settled the matter,
compounding of the offence was out of question.  Said settlement along
with other extenuating circumstances was only taken as the ground  for
reduction of the sentence in the following manner:

“We must immediately state that the offence under  Section
307 is not compoundable in terms of  Section  320(9)  of  the
Code of Criminal Procedure, 1973 and, therefore,  compounding
of the offence in  the  present  case  is  out  of  question.
However, the circumstances pointed out by the learned  Senior
Counsel do persuade us for a lenient view in  regard  to  the
sentence. The incident occurred on 17.5.1991 and it is almost
twenty years since then. The appellants are agriculturists by
occupation and have no previous  criminal  background.  There
has  been  reconciliation  amongst  parties;  the   relations
between the appellants and the victim have become cordial and
prior to the appellants’ surrender,  the  parties  have  been
living peacefully in the village. The appellants have already
undergone the sentence of more  than  two-and-a  half  years.
Having regard to those circumstances, we are  satisfied  that
ends of justice will  be  met  if  the  substantive  sentence
awarded to the appellants is reduced to  the  period  already
undergone while maintaining the amount of fine.

Consequently,  while  confirming  the  conviction  of  the
appellants for the offences punishable under Section 307 read
with Section 34, Section 332 read with Section 34 and Section
353 read with Section 34, the substantive sentence awarded to
them by the High Court  is  reduced  to  the  period  already
undergone. The fine amount and the default stipulation remain
as it is.”

10.     The learned counsel for the  appellant,  on  the  other  hand,
submitted that merely because an  offence  is  non-compoundable  under
Section 320 of the Code would not mean that the High Court is  denuded
of its power to quash the proceedings in exercising  its  jurisdiction
under Section 482 of the Cr.P.C.  He argued that Section 320(9) of the
Code cannot limit or affect the power of the High Court under  Section
482 of the Cr.P.C.  Such a power is recognized by the Supreme Court in
catena of judgments. He further submitted that having  regard  to  the
circumstances in the present case where the fight had occurred on  the
spot in the heat of the moment inasmuch as both  sides  were  verbally
fighting when the petitioners had struck the victim, this assault  was
more of a crime against the individual than  against  the  society  at
large. He further submitted that this Court in Dimpey  Gujral v. Union
Territory through Administrator  2012 AIR SCW 5333 had quashed the FIR
registered under sections 147,148,149,323,307,452 and 506 of the  IPC.

11.   We find that there are cases where the power of the  High  Court
under Section 482 of the  Code  to  quash  the  proceedings  in  those
offences which are  uncompoundable  has  been  recognized.   The  only
difference is that under Section 320(1) of the Code, no permission  is
required from the Court in those cases which are  compoundable  though
the Court has discretionary power to refuse to compound  the  offence.
However, compounding under Section 320(1) of the Code  is  permissible
only in minor offences or in non-serious offences. Likewise, when  the
parties reach settlement in respect of offences enumerated in  Section
320(2) of the Code, compounding is permissible  but  it  requires  the
approval of the Court.  In so far as serious offences  are  concerned,
quashing  of  criminal  proceedings  upon  compromise  is  within  the
discretionary powers of the High Court.  In such cases, the  power  is
exercised under Section 482 of the Code and proceedings  are  quashed.
Contours of these powers were described by this Court in B.S.Joshi vs.
State of Haryana (2003)  4  SCC  675        which  has  been  followed
and further explained/elaborated in so many  cases  thereafter,  which
are  taken  note  of  in  the  discussion  that  follows  hereinafter.

12.   At the same time, one has to keep in mind the subtle distinction
between the power of compounding of  offences  given  to  Court  under
Section 320 of the Code and quashing of criminal  proceedings  by  the
High Court in exercise of its inherent jurisdiction conferred upon  it
under Section 482 of the Code.  Once, it is found that compounding  is
permissible only if a particular offence is covered by the  provisions
of Section 320 of the Code and the  Court  in  such  cases  is  guided
solitary and squarely by the compromise between the parties, in so far
as power of quashing under Section 482 of the Code is concerned, it is
guided by the material on record as to whether  the  ends  of  justice
would  justify  such  exercise  of  power,   although   the   ultimate
consequence may be acquittal  or  dismissal  of  indictment.   Such  a
distinction is lucidly explained by a three-Judge Bench of this  Court
in Gian Singh vs. State of Punjab & Anr. (2012) 10 SCC  303.   Justice
Lodha, speaking for the Court, explained the  difference  between  the
two provisions in the following manner:

“Quashing of offence or criminal proceedings on the ground
of settlement between an offender and victim  is  not  the  same
thing as compounding of offence.  They  are  different  and  not
interchangeable. Strictly speaking, the power of compounding  of
offences given to  a  court  under  Section  320  is  materially
different from the quashing of criminal proceedings by the  High
Court in exercise of its inherent jurisdiction.  In  compounding
of offences, power of a criminal court is circumscribed  by  the
provisions contained in Section 320  and  the  court  is  guided
solely and squarely  thereby  while,  on  the  other  hand,  the
formation of opinion by the High Court for quashing  a  criminal
offence or criminal proceeding or criminal complaint  is  guided
by the material on record as to  whether  the  ends  of  justice
would justify such  exercise  of  power  although  the  ultimate
consequence may be acquittal or dismissal of indictment.

B.S.Joshi, Nikhil Merchant,  Manoj  Sharma  and  Shiji  do
illustrate the principle that the High Court may quash  criminal
proceedings or FIR or complaint  in  exercise  of  its  inherent
power under Section 482 of the Code and  Section  320  does  not
limit or affect the powers of the High Court under Section  482.
Can  it  be  said  that  by  quashing  criminal  proceedings  in
B.S.Joshi, Nikhil Merchant, Manoj Sharma and  Shiji  this  Court
has compounded the non-compoundable offences indirectly?  We  do
not  think  so.  There  does  exist  the   distinction   between
compounding of an offence under Section 320 and  quashing  of  a
criminal case by the High Court in exercise  of  inherent  power
under Section 482. The two powers  are  distinct  and  different
although the ultimate consequence may be the same viz. acquittal
of the accused or dismissal of indictment.”

13.   Apart from narrating the interplay of Section  320  and  Section
482 of the Code in the manner aforesaid, the Court also described  the
extent of power under Section 482 of the Code in quashing the criminal
proceedings in those cases where the parties had  settled  the  matter
although the offences are not compoundable.  In the first instance  it
was emphasized that the power under Sec. 482 of the Code is not to  be
resorted to, if there is specific provision in the Code for  redressal
of the grievance of an aggrieved party.  It should be  exercised  very
sparingly and should not be exercised as against the  express  bar  of
law engrafted in any other provision of  the  Code.   The  Court  also
highlighted that in different situations, the inherent  power  may  be
exercised  in  different  ways  to  achieve  its  ultimate  objective.
Formation of opinion by the High Court before  it  exercises  inherent
power under Section 482 on either  of  the  twin  objectives,  (i)  to
prevent abuse of the process of any court, or (ii) to secure the  ends
of justice, is a sine qua non.

14.   As to under what circumstances the criminal proceedings in a non-
compoundable case be quashed when there is a  settlement  between  the
parties, the Court provided the following guidelines:

“Where the High Court quashes a criminal proceeding having
regard to the facts that the dispute between the offender  and
the victim has been settled  although  the  offences  are  not
compoundable, it does so as in its  opinion,  continuation  of
criminal proceedings will  be  an  exercise  in  futility  and
justice in the case  demands  that  the  dispute  between  the
parties is put to an end and peace is restored;  securing  the
ends of justice being the ultimate guiding factor.  No  doubt,
crimes are acts which have harmful effect on  the  public  and
consist in wrongdoing that seriously endangers  and  threatens
the well-being of the society and it is not safe to leave  the
crime-doer only because he and the  victim  have  settled  the
dispute  amicably  or  that   the   victim   has   been   paid
compensation, yet certain crimes have been  made  compoundable
in law, with or  without  the  permission  of  the  court.  In
respect of serious offences like murder, rape,  dacoity,  etc.
or other offences of mental depravity under IPC or offences of
moral turpitude under special statutes, like the Prevention of
Corruption Act or the offences committed  by  public  servants
while working in that capacity,  the  settlement  between  the
offender and the victim can have no  legal  sanction  at  all.
However,   certain   offences   which    overwhelmingly    and
predominantly bear civil flavor having arisen  out  of  civil,
mercantile, commercial, financial, partnership  or  such  like
transactions  or  the  offences  arising  out  of   matrimony,
particularly relating to dowry, etc. or  the  family  dispute,
where the wrong is basically to the victim  and  the  offender
and  the  victim  have  settled  all  disputes  between   them
amicably, irrespective of the fact that such offences have not
been  made  compoundable,  the  High  Court  may  within   the
framework of its inherent power, quash the criminal proceeding
or criminal complaint or FIR if it is satisfied  that  on  the
face of such settlement, there is hardly any likelihood of the
offender being convicted and  by  not  quashing  the  criminal
proceedings, justice shall be casualty  and  ends  of  justice
shall be defeated. The above  list  is  illustrative  and  not
exhaustive. Each case will depend on its own facts and no hard-
and-fast category can be prescribed.”

Thereafter, the Court summed up the legal position in the  following
words:

“The position that emerges from the  above  discussion  can  be
summarized thus: the power of  the  High  Court  in  quashing  a
criminal proceeding or FIR  or  complaint  in  exercise  of  its
inherent jurisdiction is distinct and different from  the  power
given to a criminal court for  compounding  the  offences  under
Section 320 of the Code. Inherent power is  of  wide  plentitude
with no statutory limitation but  it  has  to  be  exercised  in
accord with the guidelines engrafted in such power viz.: (i)  to
secure the ends of justice, or  (ii)  to  prevent  abuse  f  the
process of any court. In what cases power to quash the  criminal
proceeding or complaint  or  FIR  may  be  exercised  where  the
offender and the victim have settled their dispute would  depend
on the facts and circumstances of each case and no category  can
be prescribed. However, before exercise of such power, the  High
Court must have due regard to the  nature  and  gravity  of  the
crime. Heinous and  serious  offences  of  mental  depravity  or
offences like murder, rape, dacoity, etc.  cannot  be  fittingly
quashed even though  the  victim  or  victim’s  family  and  the
offender have settled the dispute. Such offences are not private
in nature and have a serious impact on society.  Similarly,  any
compromise between the victim and the offender  in  relation  to
the offences under  special  statutes  like  the  Prevention  of
Corruption Act, or the offences  committed  by  public  servants
while working in that capacity, etc.;  cannot  provide  for  any
basis for quashing criminal proceedings involving such offences.
But the criminal cases having overwhelmingly and predominatingly
civil flavor stand on a different footing for  the  purposes  of
quashing, particularly the  offences  arising  from  commercial,
financial,  mercantile,  civil,   partnership   or   such   like
transactions or the offences arising out of  matrimony  relating
to dowry, etc.  or  the  family  disputes  where  the  wrong  is
basically private or personal in nature  and  the  parties  have
resolved their entire dispute. In this category  of  cases,  the
High Court may quash the criminal proceedings if  in  its  view,
because of the compromise between the offender and  the  victim,
the  possibility  of  conviction  is  remote   and   bleak   and
continuation of the criminal case would put the accused to great
oppression and prejudice and extreme injustice would  be  caused
to him by not  quashing  the  criminal  case  despite  full  and
complete settlement and compromise with  the  victim.  In  other
words, the High Court must consider whether it would  be  unfair
or contrary to the interest of  justice  to  continue  with  the
criminal proceeding or continuation of the  criminal  proceeding
or continuation of the criminal proceeding would  tantamount  to
abuse of  process  of  law  despite  settlement  and  compromise
between the victim and the wrongdoer and whether to  secure  the
ends of justice, it is appropriate that the criminal case is put
to an end and if the answer to the above question(s) is  in  the
affirmative,  the  High  Court  shall   be   well   within   its
jurisdiction to quash the criminal proceeding.”

15. The Court was categorical that in respect of serious  offences  or
other offences of mental depravity or offence of merely dacoity  under
special statute, like the Prevention of Corruption Act or the offences
committed by Public Servant while working in that capacity.  The  mere
settlement between the parties would not be  a  ground  to  quash  the
proceedings by the High Court  and  inasmuch  as  settlement  of  such
heinous crime cannot have imprimatur of the Court.

16.   The question is as to whether  offence  under  Section  307  IPC
falls within the aforesaid parameters.  First limb of this question is
to reflect on the nature of  the  offence.   The  charge  against  the
accused in such cases is that he had attempted to  take  the  life  of
another person (victim).  On this touchstone, should  we  treat  it  a
crime of serious nature so as to  fall  in  the  category  of  heinous
crime, is the poser.

17.   Finding an answer to this question  becomes  imperative  as  the
philosophy and jurisprudence of sentencing is based thereupon.  If  it
is  heinous crime of serious nature then it has to  be  treated  as  a
crime against the society and not against the individual  alone.  Then
it becomes the solemn duty of the State to punish the crime doer. Even
if there is a settlement/compromise between the perpetrator  of  crime
and the victim, that is of no consequence. Law prohibits certain  acts
and/or conduct and treats them as  offences.   Any  person  committing
those acts is subject to penal consequences which may  be  of  various
kind. Mostly, punishment provided for committing  offences  is  either
imprisonment or monetary fine or both.  Imprisonment can  be  rigorous
or simple in nature.   Why  those  persons  who  commit  offences  are
subjected to such penal  consequences?  There  are  many  philosophies
behind such  sentencing  justifying  these  penal  consequences.   The
philosophical/jurisprudential  justification   can   be   retribution,
incapacitation,    specific    deterrence,     general     deterrence,
rehabilitation, or restoration.  Any of the above   or  a  combination
thereof can be the goal of sentencing.  Whereas in various  countries,
sentencing guidelines are provided, statutorily  or  otherwise,  which
may guide Judges for awarding specific sentence, in India  we  do  not
have any such sentencing policy till date.   The  prevalence  of  such
guidelines may not only aim at   achieving consistencies  in  awarding
sentences in different cases, such guidelines normally  prescribe  the
sentencing policy as well  namely  whether  the  purpose  of  awarding
punishment in a particular case is more of a deterrence or retribution
or rehabilitation etc.

18.   In the absence of such guidelines in India, Courts go  by  their
own perception about the philosophy behind the prescription of certain
specified penal consequences for particular nature of crime. For  some
deterrence and/or vengeance becomes  more  important  whereas  another
Judge may be more influenced by rehabilitation or restoration  as  the
goal of sentencing.  Sometimes, it would  be  a  combination  of  both
which would weigh in the mind of the Court in  awarding  a  particular
sentence. However, that may be question of quantum.
What follows from the discussion behind the purpose of  sentencing  is
that if a particular crime is to  be  treated  as  crime  against  the
society  and/or  heinous  crime,  then  the  deterrence  theory  as  a
rationale for punishing the offender  becomes  more  relevant,  to  be
applied in such cases.  Therefore, in respect of such  offences  which
are treated against the society, it becomes the duty of the  State  to
punish the offender.  Thus, even when there is  a  settlement  between
the offender and the victim, their will would not prevail as  in  such
cases the matter is  in  public  domain.   Society  demands  that  the
individual offender  should  be  punished  in  order  to  deter  other
effectively as it amounts to greatest good of the greatest  number  of
persons in a  society.   It  is  in  this  context  that  we  have  to
understand the scheme/philosophy behind Section 307 of the Code.

19.   We would like to expand this principle in some more  detail.  We
find, in practice and in reality, after recording the  conviction  and
while awarding the sentence/punishment the Court is generally governed
by any or all or combination of the aforesaid factors.  Sometimes,  it
is the deterrence theory which prevails in the  minds  of  the  Court,
particularly in those cases where the crimes committed are heinous  in
nature or depicts depravity, or lack  morality.  At  times  it  is  to
satisfy the element of  “emotion”  in  law  and  retribution/vengeance
becomes the guiding factor.  In any case, it cannot be denied that the
purpose  of  punishment  by  law   is   deterrence,   constrained   by
considerations  of  justice.  What,  then,  is  the  role  of   mercy,
forgiveness and compassion in law?  These are by no means  comfortable
questions and even the answers may not be comforting.   There  may  be
certain cases which are too obvious  namely  cases  involving  heinous
crime with element of criminality against the society and not  parties
inter-se.  In such cases, the  deterrence  as  purpose  of  punishment
becomes paramount and even if the victim or his relatives  have  shown
the virtue and gentility, agreeing to forgive the culprit,  compassion
of that private party would not move the court in accepting  the  same
as larger and more important public policy of showing the iron hand of
law to the wrongdoers, to reduce the commission of such  offences,  is
more important. Cases of murder, rape, or other sexual  offences  etc.
would clearly fall in this category.  After all, justice requires long
term vision.  On the other hand, there may be, offences falling in the
category where “correctional” objective of criminal law would have  to
be given more weightage  in  contrast  with  “deterrence”  philosophy.
Punishment, whatever else may be, must be fair and conducive  to  good
rather than further evil.  If in a particular case the Court is of the
opinion that the settlement between the parties  would  lead  to  more
good; better relations between them; would prevent further  occurrence
of such encounters between the parties, it may hold settlement  to  be
on a better pedestal.  It  is  a  delicate  balance  between  the  two
inflicting interests which is  to  be  achieved  by  the  Court  after
examining all these parameters and then deciding as to which course of
action it should take in a particular case.

20.   We may comment, at this stage, that in so far as the judgment in
the case of Bhandari (supra)  is  concerned,  undoubtedly  this  Court
observed that since offence under Section 307 is not  compoundable  in
terms of Section 320(9) of the Cr.P.C., compounding of the offence was
out of question.  However, apart from this observation, this aspect is
not discussed in detail.  Moreover, on reading para  12  of  the  said
judgment, it is clear that one finds that counsel for the appellant in
that case had not contested the conviction of the  appellant  for  the
offence under Section 307 IPC, but had mainly pleaded for reduction of
sentence by projecting mitigating circumstances.

21.   However,  we  have  some  other  cases  decided  by  this  Court
commenting upon the nature of offence under Section 307  of  IPC.   In
Dimpey  Gujral  case  (supra),   FIR   was   lodged   under   sections
147,148,149,323,307,552  and  506  of  the  IPC.    The   matter   was
investigated and final report was presented to the Court under Section
173 of the Cr.P.C. The trial court had even framed  the  charges.   At
that stage, settlement was arrived  at  between  parties.   The  court
accepted the settlement and   quashed the  proceedings,  relying  upon
the earlier judgment of this Court in Gian Singh vs. State of Punjab &
Anr. 2012 AIR SCW 5333 wherein the court had  observed  that  inherent
powers under section 482 of the Code are of wide  plentitude  with  no
statutory limitation and the guiding factors are: (1)  to  secure  the
needs of justice, or (2) to prevent abuse of  process  of  the  court.
While doing so, commenting upon the offences stated in  the  FIR,  the
court observed:

“Since the  offences  involved  in  this  case  are  of  a
personal nature and are not offences against the society, we had
enquired with learned counsel appearing for the parties  whether
there is any possibility of a settlement.  We are happy to  note
that due to efforts made by learned counsel, parties  have  seen
reason and have entered into a compromise.”

This Court, thus, treated such offences including  one  under  section
307, IPC were of a  personal  nature  and  not  offences  against  the
society.

22.    On the other hand, we have few  judgments  wherein  this  Court
refused to quash the proceedings in FIR registered under  section  307
IPC etc. on the ground that offence under section 307 was  of  serious
nature and would fall in the category of heinous crime.  In  the  case
of Shiji vs. Radhika & Anr. (2011) 10 SCC 705 the  Court  quashed  the
proceedings relating to an offence under  section  354  IPC  with  the
following observations:

“We have heard learned counsel for the parties and perused
the impugned order.  Section  320  of  the  Cr.P.C.  enlists
offences that are compoundable with the  permission  of  the
Court before whom the prosecution is pending and those  that
can be compounded even without such permission.  An  offence
punishable under Section 354 of  the  IPC  is  in  terms  of
Section 320(2) of the Code compoundable at the  instance  of
the woman against whom the offence  is  committed.  To  that
extent, therefore, there is no difficulty in either quashing
the proceedings or compounding  the  offence  under  Section
354, of which the appellants are accused, having  regard  to
the fact that the alleged victim of the offence has  settled
the  matter  with  the  alleged   assailants.   An   offence
punishable  under  Section  394   IPC   is   not,   however,
compoundable with or without the  permission  of  the  Court
concerned. The question is whether the High Court could  and
ought to have exercised its power under section 482 the said
provision in the light of the compromise  that  the  parties
have arrived at.”

23.   In a recent judgment in the  case  of  State  of  Rajasthan  vs.
Shambhu Kewat & Ors.  2013 (14) SCALE 235,  this  very  Bench  of  the
Court was faced with the situation where the High Court  had  accepted
the settlement between the parties in an  offence  under  Section  307
read with Section 34 IPC and set the accused at  large  by  acquitting
them.  The settlement was arrived at during  the  pendency  of  appeal
before the High Court against the order of conviction and sentence  of
the Sessions Judge holding the accused persons guilty of  the  offence
under Section307/34 IPC.  Some earlier cases of compounding of offence
under Section 307 IPC were  taken  note  of,  noticing  under  certain
circumstances, the Court  had  approved  the  compounding  whereas  in
certain other cases such a course of action was not accepted.  In that
case, this Court took the view that High Court was  not  justified  in
accepting the compromise and  setting  aside  the  conviction.   While
doing so, following discussion ensued:

“We find, in this case, such a situation does  not  arise.
In the instant case, the incident had  occurred  on  30.10.2008.
The trial court held  that  the  accused  persons,  with  common
intention, went to the shop of the injured Abdul Rashid on  that
day armed with iron rod and a strip of iron and, in  furtherance
of their common intention, had caused serious  injuries  on  the
body of Abdul Rashid, of which injury number 4 was on his  head,
which was of a serious nature.

Dr.Rakesh Sharma, PW5, had stated that out of the injuries
caused to Abdul Rashid, injury No.4 was an injury  on  the  head
and that injury was “grievous and fatal for life”. PW8, Dr. Uday
Bhomik, also opined that a grievous injury  was  caused  on  the
head of Abdul  Rashid.  DR.  Uday  conducted  the  operation  on
injuries of Abdul Rashid as a Neuro Surgeon and fully  supported
the opinion expressed by PW5 Dr. Rakesh Sharma that injury  No.4
was “grievous and fatal for life”.

We notice that the gravity of the injuries was taken  note
of by the Sessions Court and it had awarded the sentence  of  10
years rigorous imprisonment for  the  offence  punishable  under
Section 307 IPC, but not by the High Court. The High  Court  has
completely overlooked the various principles laid down  by  this
Court in Gian Singh (Supra), and  has  committed  a  mistake  in
taking the view that, the injuries were caused on  the  body  of
Abdul Rashid in a fight occurred at the spur and the heat of the
moment. It has been categorically held by  this  Court  in  Gian
Singh (supra) that the Court, while exercising the  power  under
Section 482, must have “due regard to the nature and gravity  of
the crime” and “the social  impact”.  Both  these  aspects  were
completely overlooked by the High Court. The  High  Court  in  a
cursory manner, without application of  mind,  blindly  accepted
the statement  of  the  parties  that  they  had  settled  their
disputes and differences and took the view that it was  a  crime
against “an individual”, rather than  against  “the  society  at
large”.

We are not prepared to say that the crime alleged to  have
been committed by the accused persons was  a  crime  against  an
individual, on the other hand it was a crime against the society
at large. Criminal law is designed as a mechanism for  achieving
social control and its purpose is the regulation of conduct  and
activities within the society. Why Section 307 IPC is held to be
non-compoundable, because the Code has identified which  conduct
should be brought within the ambit of non-compoundable offences.
Such provisions are not meant, just to protect  the  individual,
but the society as a whole. High Court was not right in thinking
that it was only an injury to the person and since  the  accused
persons had received the monetary compensation and  settled  the
matter, the crime as  against  them  was  wiped  off.   Criminal
justice system has a larger objective to achieve, that is safety
and protection of the people at large and it would be  a  lesson
not only to the offender, but to the  individuals  at  large  so
that such crimes would not be committed by  any  one  and  money
would not be a substitute for the crime  committed  against  the
society. Taking a lenient view on a  serious  offence  like  the
present, will  leave  a  wrong  impression  about  the  criminal
justice system and will encourage further criminal  acts,  which
will endanger the  peaceful  co-existence  and  welfare  of  the
society at large.”

24.    Thus, we find that in certain  circumstances,  this  Court  has
approved the quashing of proceedings under section 307,IPC whereas  in
some other cases, it is held  that as the offence is of serious nature
such proceedings cannot be quashed.  Though in each of  the  aforesaid
cases the view taken by this Court may be justified on its own  facts,
at the same time  this  Court  owes  an  explanation  as  to  why  two
different approaches are adopted in various cases.  The  law  declared
by this Court in the form of judgments becomes binding  precedent  for
the High Courts and the subordinate courts, to  follow  under  Article
141 of the Constitution of India.  Stare Decisis  is  the  fundamental
principle of judicial decision making which requires  ‘certainty’  too
in law  so that in a given set of facts the course of action which law
shall take is discernable and predictable.  Unless that  is  achieved,
the very doctrine of stare decisis will lose  its  significance.   The
related objective of the doctrine of stare decisis is to put a curb on
the personal preferences and priors of individual Judges.  In  a  way,
it achieves equality of treatment as well, inasmuch as  two  different
persons faced with similar  circumstances  would  be  given  identical
treatment at the hands of law.  It has, therefore,  support  from  the
human sense of justice as well.  The force of precedent in the law  is
heightened, in the words of Karl Llewellyn, by “that  curious,  almost
universal sense of justice which urges that all men are to be  treated
alike in like circumstances”.

25.   As there is a close relation between the equality  and  justice,
it should be clearly discernible as to how the two prosecutions  under
Section 307 IPC are  different  in  nature  and  therefore  are  given
different treatment.  With  this  ideal  objective  in  mind,  we  are
proceeding to discuss the subject at length.    It is for this  reason
we deem it appropriate to lay down some distinct, definite  and  clear
guidelines which can be kept in mind by the High Courts to take a view
as to under what circumstances it should accept the settlement between
the parties and quash the proceedings and under what circumstances  it
should refrain from doing so.  We make  it  clear  that  though  there
would be a general discussion in this behalf as well,  the  matter  is
examined in the context of offences under Section 307 IPC.

26.         The two rival parties have amicably settled  the  disputes
between themselves and buried the hatchet. Not  only  this,  they  say
that since they are neighbours, they want to live like good neighbours
and that was the  reason  for  restoring  friendly  ties.  In  such  a
scenario, should the court give its imprimatur to such  a  settlement.
The answer depends on various incidental aspects  which  need  serious
discourse.
The Legislators has categorically recognized that those offences which
are covered  by  the  provisions  of  section  320  of  the  Code  are
concededly those not only do not fall within the category  of  heinous
crime but also which are personal between the parties. Therefore, this
provision recognizes whereas there is a compromise between the parties
the Court is to act at the said compromise and quash the  proceedings.
However, even in respect of such offences not covered within the  four
corners of Section 320 of the Code, High Court is  given  power  under
Section 482 of the Code to accept the compromise between  the  parties
and quash the proceedings.  The guiding factor is as  to  whether  the
ends of justice  would  justify  such  exercise  of  power,  both  the
ultimate consequences may be acquittal  or  dismissal  of  indictment.
This is so recognized in various judgments taken note of above.

27.          In the case of Dimpey  Gujral  (supra),  observations  of
this Court to the effect that offences involved in that case were  not
offences against the society. It included charge under Section 307 IPC
as well.  However,  apart  from  stating  so,  there  is  no  detained
discussion on this aspect. Moreover, it is  the  other  factors  which
prevailed with the Court to accept  the  settlement  and  compound  he
offence, as noted above while discussing this case. On the other hand,
in Shambhu Kewat  (supra),  after  referring  to  some  other  earlier
judgments, this Court opined that commission of offence under  Section
307 IPC would be crime against the society at large, and not  a  crime
against an individual only. We find that in most of  the  cases,  this
view is taken. Even on first principle, we find  that  an  attempt  to
take the life of another person has to be treated as a  heinous  crime
and against the society.

28.   Having said so, we would hasten to  add  that  though  it  is  a
serious offence as the accused person(s) attempted to take the life of
another person/victim, at the same time the court cannot be  oblivious
to hard realities that many times whenever there is a quarrel  between
the parties leading to physical commotion and sustaining of injury  by
either or both the parties, there is a tendency to give it a slant  of
an offence under Section 307 IPC  as  well.  Therefore,  only  because
FIR/Charge-sheet incorporates the provision of Section 307  IPC  would
not, by itself, be a ground to reject the petition under  section  482
of the Code and refuse to accept the settlement between  the  parties.
We are, therefore, of the opinion that  while  taking  a  call  as  to
whether compromise in such cases should be effected or not,  the  High
Court should go by the nature of injury sustained, the portion of  the
bodies where the injuries were inflicted (namely whether injuries  are
caused at the vital/delicate parts of the  body)  and  the  nature  of
weapons used etc.  On that basis, if it  is  found  that  there  is  a
strong possibility of proving the charge under Section 307  IPC,  once
the evidence to that effect is led  and  injuries  proved,  the  Court
should not accept settlement between the parties.  On the other  hand,
on the basis of prima facie assessment of the aforesaid circumstances,
if the High Court forms an opinion that provisions of Section 307  IPC
were unnecessary included in the charge sheet, the  Court  can  accept
the plea of compounding of the offence based on settlement between the
parties.

29.   At this juncture, we would like also to add that the  timing  of
settlement would also play a  crucial  role.   If  the  settlement  is
arrived at immediately after the alleged commission  of  offence  when
the matter is  still  under  investigation,  the  High  Court  may  be
somewhat  liberal  in  accepting  the  settlement  and  quashing   the
proceedings/investigation.  Of course, it would be after looking  into
the  attendant  circumstances  as  narrated  in  the  previous   para.
Likewise, when challan is  submitted  but  the  charge  has  not  been
framed, the High Court may exercise  its  discretionary  jurisdiction.
However, at this stage, as mentioned above, since the  report  of  the
I.O. under Section 173,Cr.P.C. is also  placed  before  the  Court  it
would become the bounding duty of the Court to go into the said report
and the evidence collected, particularly the medical evidence relating
to injury etc. sustained by the victim.  This aspect,  however,  would
be examined along with another  important  consideration,  namely,  in
view of settlement between the parties, whether it would be unfair  or
contrary  to  interest  of  justice  to  continue  with  the  criminal
proceedings and whether possibility of conviction is remote and bleak.
If the Court finds the answer to this question in  affirmative,  then
also such a case would be a fit case for the High Court  to  give  its
stamp of approval to the compromise arrived at  between  the  parties,
inasmuch as in such  cases  no  useful  purpose  would  be  served  in
carrying out the criminal proceedings which in  all  likelihood  would
end in acquittal, in any case.

30.   We have found that  in  certain  cases,  the  High  Courts  have
accepted the compromise between the parties when the matter in  appeal
was pending before the High Court against the conviction  recorded  by
the trial court.  Obviously, such cases are those  where  the  accused
persons have been found guilty by the trial  court,  which  means  the
serious charge of Section 307 IPC has been  proved  beyond  reasonable
doubt at the level of  the  trial  court.   There  would  not  be  any
question of accepting compromise and acquitting  the  accused  persons
simply because the private parties have buried the hatchet.

31.   In view of the aforesaid discussion, we sum up and lay down  the
following principles by which the High Court would be guided in giving
adequate  treatment  to  the  settlement  between  the   parties   and
exercising its power under Section 482 of the Code while accepting the
settlement and quashing the proceedings  or  refusing  to  accept  the
settlement with direction to continue with the criminal proceedings:

(I) Power conferred under Section 482  of  the  Code  is  to  be
distinguished from the power which lies in the Court to  compound  the
offences under Section 320 of the Code. No doubt, under Section 482 of
the Code, the High Court has inherent  power  to  quash  the  criminal
proceedings even in those cases which are not compoundable, where  the
parties have settled the  matter  between  themselves.  However,  this
power is to be exercised sparingly and with caution.

(II)When the parties have reached the  settlement  and  on  that
basis petition for quashing the criminal  proceedings  is  filed,  the
guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to  form  an  opinion  on
either of the aforesaid two objectives.

(III) Such a power is not be  exercised  in  those  prosecutions
which involve heinous and serious  offences  of  mental  depravity  or
offences like murder, rape,  dacoity,  etc.   Such  offences  are  not
private in nature and have a serious impact on society. Similarly, for
offences alleged to have been committed under special statute like the
Prevention of Corruption Act  or  the  offences  committed  by  Public
Servants while working in that capacity are not to be  quashed  merely
on the basis of compromise between the victim and the offender.

(IV) On the other, those criminal  cases  having  overwhelmingly
and pre-dominantly civil character, particularly those arising out  of
commercial transactions or arising out of matrimonial relationship  or
family disputes should be quashed when the parties have resolved their
entire             disputes             among              themselves.
(V) While exercising its powers, the High Court is to  examine  as  to
whether  the  possibility  of  conviction  is  remote  and  bleak  and
continuation  of  criminal  cases  would  put  the  accused  to  great
oppression and prejudice and extreme injustice would be caused to  him
by        not        quashing        the        criminal        cases.
(VI) Offences under Section 307 IPC would fall in the
category of heinous and  serious  offences  and  therefore  is  to  be
generally treated as crime against the society  and  not  against  the
individual alone. However, the High Court would not rest its  decision
merely because there is a mention of Section 307 IPC in the FIR or the
charge is framed under this provision. It would be open  to  the  High
Court to examine as to whether incorporation of  Section  307  IPC  is
there for the sake of it or the prosecution has  collected  sufficient
evidence, which if proved, would lead  to  proving  the  charge  under
Section 307 IPC. For this purpose, it would be open to the High  Court
to go by the nature  of  injury  sustained,  whether  such  injury  is
inflicted on the vital/delegate parts of the body, nature  of  weapons
used etc. Medical report in respect of injuries suffered by the victim
can generally be the guiding factor. On the basis of this prima  facie
analysis, the High Court can examine as to whether there is  a  strong
possibility of conviction or the chances of conviction are remote  and
bleak. In the former case it can refuse to accept the  settlement  and
quash the criminal proceedings whereas in the later case it  would  be
permissible for the High Court to  accept  the  plea  compounding  the
offence based on complete settlement  between  the  parties.  At  this
stage, the Court can also be swayed by the fact  that  the  settlement
between the parties is going to result in harmony between  them  which
may improve their future relationship.

(VII) While deciding whether to exercise its power under Section
482 of the Code or not, timings of settlement  play  a  crucial  role.
Those cases where the settlement is arrived at immediately  after  the
alleged  commission  of  offence  and  the  matter  is   still   under
investigation,  the  High  Court  may  be  liberal  in  accepting  the
settlement to quash  the  criminal  proceedings/investigation.  It  is
because of the reason that at this stage the investigation is still on
and even the charge sheet has not been filed.  Likewise,  those  cases
where the charge is framed but the evidence is yet  to  start  or  the
evidence  is  still  at  infancy  stage,  the  High  Court  can   show
benevolence in exercising its powers favourably, but after prima facie
assessment of the circumstances/material mentioned above. On the other
hand, where the prosecution evidence is almost complete or  after  the
conclusion of the evidence the matter is at  the  stage  of  argument,
normally the High Court should refrain from exercising its power under
Section 482 of the Code, as in such cases the trial court would be  in
a position to decide  the  case  finally  on  merits  and  to  come  a
conclusion as  to  whether  the  offence  under  Section  307  IPC  is
committed or not. Similarly, in those cases where  the  conviction  is
already recorded by the trial court and the matter is at the appellate
stage before the High Court, mere compromise between the parties would
not be a ground to accept the  same  resulting  in  acquittal  of  the
offender who has already been  convicted  by  the  trial  court.  Here
charge is proved under Section  307  IPC  and  conviction  is  already
recorded of a heinous crime and, therefore, there is  no  question  of
sparing a convict found guilty of such a crime.

32.    After  having  clarified  the  legal  position  in  the  manner
aforesaid, we proceed to discuss the case at hand.

33.   In the present case, FIR No.121 dated 14.7.2010  was  registered
under  Section  307/324/323/34  IPC.   Investigation  was   completed,
whereafter challan was presented in the court against  the  petitioner
herein.  Charges have also been framed; the case is at  the  stage  of
recording  of  evidence.   At  this  juncture,  parties  entered  into
compromise on the basis of which petition under  Section  482  of  the
Code was filed by the  petitioners  namely  the  accused  persons  for
quashing of the criminal proceedings under the said FIR.  As  per  the
copy of the settlement which was annexed along with the petition,  the
compromise  took  place  between  the  parties   on   12.7.2013   when
respectable members of the Gram Panchayat held  a  meeting  under  the
Chairmanship of Sarpanch.  It is stated that on  the  intervention  of
the  said  persons/Panchayat,  both  the  parties  were   agreed   for
compromise and have also decided to live with  peace  in  future  with
each other.  It was argued that since the parties have decided to keep
harmony between the parties so that in future they are  able  to  live
with peace and love and they are the residents of  the  same  village,
the High Court should have accepted the said compromise and quash  the
proceedings.

34.   We find from the impugned  order  that  the  sole  reason  which
weighed with the High Court  in  refusing  to  accept  the  settlement
between the parties was the nature of  injuries.  If  we  go  by  that
factor alone, normally we would tend to agree with  the  High  Court’s
approach. However, as pointed out hereinafter,  some  other  attendant
and inseparable circumstances also need  to  be  kept  in  mind  which
compel us to take a different view.

35.   We have gone through the FIR as well which was recorded  on  the
basis of statement of the complainant/victim.  It gives an  indication
that the complainant was attacked allegedly  by  the  accused  persons
because of some previous dispute between the parties, though nature of
dispute etc. is not  stated  in  detail.  However,  a  very  pertinent
statement appears on  record  viz.,  “respectable  persons  have  been
trying for    a compromise up till now, which could not be finalized”.
This becomes an important aspect.  It appears that  there  have  been
some disputes which led to  the  aforesaid  purported  attack  by  the
accused on the complainant. In this context  when  we  find  that  the
elders of the village, including Sarpanch, intervened  in  the  matter
and the parties have not only buried their hatchet but have decided to
live peacefully in future, this becomes  an  important  consideration.
The evidence is yet to be led in the Court. It has not  even  started.
In view of compromise between parties, there is a  minimal  chance  of
the witnesses coming forward in support of the prosecution case.  Even
though nature of injuries can still be established  by  producing  the
doctor as witness who conducted medical  examination,  it  may  become
difficult to prove as to who caused these  injuries.  The  chances  of
conviction, therefore, appear to be remote. It  would,  therefore,  be
unnecessary to drag these proceedings. We, taking  all  these  factors
into  consideration  cumulatively,  are  of  the  opinion   that   the
compromise  between  the  parties  be  accepted   and   the   criminal
proceedings arising out of FIR No.121 dated 14.7.2010 registered  with
Police Station LOPOKE, District Amritsar Rural be  quashed.  We  order
accordingly.

36.       Appeal is allowed. No costs.

………………………………J.
(K.S.Radhakrishnan)

………………………………J.
(A.K.Sikri)
New Delhi,
March 27, 2014

 

We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail. However, a very pertinent statement appears on record viz., “respectable persons have been trying for a compromise up till now, which could not be finalized”. This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors  into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with Police Station LOPOKE, District Amritsar Rural be quashed.

————————————————————————————————————–

[REPORTABLE]
IN THE SUPREME COURT OF INDIA CRIMINAL
APPELLATE JURISDICTION CRIMINAL APPEAL NO.686/2014
(arising out of S.L.P.(Criminal) No.9547 of 2013)
Narinder Singh & Ors. ……Appellants
Vs. State of Punjab & Anr. …Respondents
J U D G M E N T

A.K.SIKRI,J. 1. The present Special Leave Petition has been preferred against the impugned judgment/final order dated 8.10.2013 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Miscellaneous Petition No.27343/2013. It was a petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the “Code”) for quashing of FIR No.121/14.7.2010 registered under Sections 307/324/323/34,IPC, on the basis of compromise dated 22.7.2013 entered into between the petitioners ( who are accused in the said FIR) and respondent No.2 (who is the complainant). The High Court has refused to exercise its extraordinary discretion invoking the provisions of Section 482 of the Code on the ground that four injuries were suffered by the complainant and as per the opinion of the Doctor, injury No.3 were serious in nature. The High Court, thus, refused to accept 1 Page 2 the compromise entered into between the parties, the effect whereof would be that the petitioners would face trial in the said FIR.

2. Leave granted.

3. We have heard counsel for the parties at length.

4. It may be stated at the outset that the petitioners herein, who are three in number, have been charged under various provisions of the IPC including for committing offence punishable under Section 307, IPC i.e. attempt to commit murder. FIR No.121/14.7.2010 was registered. In the aforesaid FIR, the allegations against the petitioners are that on 9.7.2010 at 7.00 A.M. while respondent No.2 was going on his motorcycle to bring diesel from village Lapoke, Jasbir Singh, Narinder Singh both sons of Baldev Singh and Baldev Singh son of Lakha Singh attacked him and injured him. Respondent No.2 was admitted in Shri Guru Nanak Dev Hospital, Amritsar. After examination the doctor found four injuries on his person. Injury No.1 to 3 are with sharp edged weapons and injury No.4 is simple. From the statement of injured and MLR’s report, an FIR under sections 323/324/34 IPC was registered. After X-ray report relating to injury No.3, section 307 IPC was added in the FIR

5. After the completion of investigation, challan has been presented in the Court against the petitioners and charges have also been framed. 2 Page 3 Now the case is pending before the Ld.Trial Court, Amritsar, for evidence.

6. During the pendency of trial proceedings, the matter has been compromised between the petitioners as well as the private respondent with the intervention of the Panchayat on 12.07.2013. It is clear from the above that three years after the incident, the parties compromised the matter with intervention of the Panchayat of the village.

7. It is on the basis of this compromise, the petitioners moved aforesaid criminal petition under section 482 of the Code for quashing of the said FIR. As per the petitioners, the parties have settled the matter, as they have decided to keep harmony between them to enable them to live with peace and love. The compromise records that they have no grudge against each other and the complainant has specifically agreed that he has no objection if the FIR in question is quashed. Further, both the parties have undertaken not to indulge in any litigation against each other and withdraw all the complaints pending between the parties before the court. As they do not intend to proceed with any criminal case against each other, on that basis the submission of the petitioners before the High Court was that the continuance of the criminal proceedings in the aforesaid FIR will be a futile exercise 3 Page 4 and mere wastage of precious time of the court as well as investigating agencies.

8. The aforesaid submission, however, did not impress the High Court as the medical report depicts the injuries to be of grievous nature. The question for consideration, in these circumstances, is as to whether the court should have accepted the compromise arrived at between the parties and quash the FIR as well as criminal proceedings pending against the petitioner.

9. The ld. counsel for the State has supported the aforesaid verdict of the High Court arguing that since offence under Section 307 is noncompoundable, the respondents could not have been acquitted only because of the reason that there was a compromise/settlement between the parties. In support, the learned counsel for the respondent-State has relied upon the judgment of this Court in the case of Rajendra Harakchand Bhandari vs. State of Maharashtra (2011) 13 SCC 311 wherein this Court held that since offence under Section 307 is not compoundable, even when the parties had settled the matter, compounding of the offence was out of question. Said settlement along with other extenuating circumstances was only taken as the ground for reduction of the sentence in the following manner: “We must immediately state that the offence under Section 307 is not compoundable in terms of Section 320(9) of the Code of Criminal Procedure, 1973 and, therefore, compounding of the offence in 4 Page 5 the present case is out of question. However, the circumstances pointed out by the learned Senior Counsel do persuade us for a lenient view in regard to the sentence. The incident occurred on 17.5.1991 and it is almost twenty years since then. The appellants are agriculturists by occupation and have no previous criminal background. There has been reconciliation amongst parties; the relations between the appellants and the victim have become cordial and prior to the appellants’ surrender, the parties have been living peacefully in the village. The appellants have already undergone the sentence of more than two-and-a half years. Having regard to those circumstances, we are satisfied that ends of justice will be met if the substantive sentence awarded to the appellants is reduced to the period already undergone while maintaining the amount of fine. Consequently, while confirming the conviction of the appellants for the offences punishable under Section 307 read with Section 34, Section 332 read with Section 34 and Section 353 read with Section 34, the substantive sentence awarded to them by the High Court is reduced to the period already undergone. The fine amount and the default stipulation remain as it is.”

10. The learned counsel for the appellant, on the other hand, submitted that merely because an offence is non-compoundable under Section 320 of the Code would not mean that the High Court is denuded of its power to quash the proceedings in exercising its jurisdiction under Section 482 of the Cr.P.C. He argued that Section 320(9) of the Code cannot limit or affect the power of the High Court under Section 482 of the Cr.P.C. Such a power is recognized by the Supreme Court in catena of judgments. He further submitted that having regard to the circumstances in the present case where the fight had occurred on the 5 Page 6 spot in the heat of the moment inasmuch as both sides were verbally fighting when the petitioners had struck the victim, this assault was more of a crime against the individual than against the society at large. He further submitted that this Court in Dimpey Gujral v. Union Territory through Administrator 2012 AIR SCW 5333 had quashed the FIR registered under sections 147,148,149,323,307,452 and 506 of the IPC. 11. We find that there are cases where the power of the High Court under Section 482 of the Code to quash the proceedings in those offences which are uncompoundable has been recognized. The only difference is that under Section 320(1) of the Code, no permission is required from the Court in those cases which are compoundable though the Court has discretionary power to refuse to compound the offence. However, compounding under Section 320(1) of the Code is permissible only in minor offences or in non-serious offences. Likewise, when the parties reach settlement in respect of offences enumerated in Section 320(2) of the Code, compounding is permissible but it requires the approval of the Court. In so far as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the High Court. In such cases, the power is exercised under Section 482 of the Code and proceedings are quashed. Contours of these powers were described by this Court in B.S.Joshi vs. State of Haryana (2003) 4 SCC 675 which has been followed and 6 Page 7 further explained/elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter. 12. At the same time, one has to keep in mind the subtle distinction between the power of compounding of offences given to Court under Section 320 of the Code and quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction conferred upon it under Section 482 of the Code. Once, it is found that compounding is permissible only if a particular offence is covered by the provisions of Section 320 of the Code and the Court in such cases is guided solitary and squarely by the compromise between the parties, in so far as power of quashing under Section 482 of the Code is concerned, it is guided by the material on record as to whether the ends of justice would justify such exercise of power, although the ultimate consequence may be acquittal or dismissal of indictment. Such a distinction is lucidly explained by a three-Judge Bench of this Court in Gian Singh vs. State of Punjab & Anr. (2012) 10 SCC 303. Justice Lodha, speaking for the Court, explained the difference between the two provisions in the following manner: “Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal 7 Page 8 proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment. B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji do illustrate the principle that the High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S.Joshi, Nikhil Merchant, Manoj Sharma and Shiji this Court has compounded the non-compoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although the ultimate consequence may be the same viz. acquittal of the accused or dismissal of indictment.” 13. Apart from narrating the interplay of Section 320 and Section 482 of the Code in the manner aforesaid, the Court also described the extent of power under Section 482 of the Code in quashing the criminal proceedings in those cases where the parties had settled the matter although the offences are not compoundable. In the first instance it was emphasized that the power under Sec. 482 of the Code is not to be resorted to, if there is specific provision in the Code for redressal of the grievance of an aggrieved party. It should be exercised very sparingly 8 Page 9 and should not be exercised as against the express bar of law engrafted in any other provision of the Code. The Court also highlighted that in different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court, or (ii) to secure the ends of justice, is a sine qua non. 14. As to under what circumstances the criminal proceedings in a non-compoundable case be quashed when there is a settlement between the parties, the Court provided the following guidelines: “Where the High Court quashes a criminal proceeding having regard to the facts that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc. or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that 9 Page 10 capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavor having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed.” Thereafter, the Court summed up the legal position in the following words: “The position that emerges from the above discussion can be summarized thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guidelines engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse f the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such 10 Page 11 power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act, or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavor stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 11 Page 12 15. The Court was categorical that in respect of serious offences or other offences of mental depravity or offence of merely dacoity under special statute, like the Prevention of Corruption Act or the offences committed by Public Servant while working in that capacity. The mere settlement between the parties would not be a ground to quash the proceedings by the High Court and inasmuch as settlement of such heinous crime cannot have imprimatur of the Court.

16. The question is as to whether offence under Section 307 IPC falls within the aforesaid parameters. First limb of this question is to reflect on the nature of the offence. The charge against the accused in such cases is that he had attempted to take the life of another person (victim). On this touchstone, should we treat it a crime of serious nature so as to fall in the category of heinous crime, is the poser.

17. Finding an answer to this question becomes imperative as the philosophy and jurisprudence of sentencing is based thereupon. If it is heinous crime of serious nature then it has to be treated as a crime against the society and not against the individual alone. Then it becomes the solemn duty of the State to punish the crime doer. Even if there is a settlement/compromise between the perpetrator of crime and the victim, that is of no consequence. Law prohibits certain acts and/or conduct and treats them as offences. Any person committing those acts is subject to penal consequences which may be of various kind. 12 Page 13 Mostly, punishment provided for committing offences is either imprisonment or monetary fine or both. Imprisonment can be rigorous or simple in nature. Why those persons who commit offences are subjected to such penal consequences? There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing. Whereas in various countries, sentencing guidelines are provided, statutorily or otherwise, which may guide Judges for awarding specific sentence, in India we do not have any such sentencing policy till date. The prevalence of such guidelines may not only aim at achieving consistencies in awarding sentences in different cases, such guidelines normally prescribe the sentencing policy as well namely whether the purpose of awarding punishment in a particular case is more of a deterrence or retribution or rehabilitation etc.

18. In the absence of such guidelines in India, Courts go by their own perception about the philosophy behind the prescription of certain specified penal consequences for particular nature of crime. For some deterrence and/or vengeance becomes more important whereas another Judge may be more influenced by rehabilitation or restoration as the goal of sentencing. Sometimes, it would be a combination of both which would weigh in the mind of the Court in awarding a 13 Page 14 particular sentence. However, that may be question of quantum. What follows from the discussion behind the purpose of sentencing is that if a particular crime is to be treated as crime against the society and/or heinous crime, then the deterrence theory as a rationale for punishing the offender becomes more relevant, to be applied in such cases. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. Thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. Society demands that the individual offender should be punished in order to deter other effectively as it amounts to greatest good of the greatest number of persons in a society. It is in this context that we have to understand the scheme/philosophy behind Section 307 of the Code

. 19. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the Court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the Court, particularly in those cases where the crimes committed are heinous in nature or depicts depravity, or lack morality. At times it is to satisfy the element of “emotion” in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment 14 Page 15 by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter-se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape, or other sexual offences etc. would clearly fall in this category. After all, justice requires long term vision. On the other hand, there may be, offences falling in the category where “correctional” objective of criminal law would have to be given more weightage in contrast with “deterrence” philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the Court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two inflicting interests which is to be achieved by the Court after 15 Page 16 examining all these parameters and then deciding as to which course of action it should take in a particular case.

20. We may comment, at this stage, that in so far as the judgment in the case of Bhandari (supra) is concerned, undoubtedly this Court observed that since offence under Section 307 is not compoundable in terms of Section 320(9) of the Cr.P.C., compounding of the offence was out of question. However, apart from this observation, this aspect is not discussed in detail. Moreover, on reading para 12 of the said judgment, it is clear that one finds that counsel for the appellant in that case had not contested the conviction of the appellant for the offence under Section 307 IPC, but had mainly pleaded for reduction of sentence by projecting mitigating circumstances.

21. However, we have some other cases decided by this Court commenting upon the nature of offence under Section 307 of IPC. In Dimpey Gujral case (supra), FIR was lodged under sections 147,148,149,323,307,552 and 506 of the IPC. The matter was investigated and final report was presented to the Court under Section 173 of the Cr.P.C. The trial court had even framed the charges. At that stage, settlement was arrived at between parties. The court accepted the settlement and quashed the proceedings, relying upon the earlier judgment of this Court in Gian Singh vs. State of Punjab & Anr. 2012 AIR SCW 5333 wherein the court had observed that inherent powers under 16 Page 17 section 482 of the Code are of wide plentitude with no statutory limitation and the guiding factors are: (1) to secure the needs of justice, or (2) to prevent abuse of process of the court. While doing so, commenting upon the offences stated in the FIR, the court observed: “Since the offences involved in this case are of a personal nature and are not offences against the society, we had enquired with learned counsel appearing for the parties whether there is any possibility of a settlement. We are happy to note that due to efforts made by learned counsel, parties have seen reason and have entered into a compromise.” This Court, thus, treated such offences including one under section 307, IPC were of a personal nature and not offences against the society.

22. On the other hand, we have few judgments wherein this Court refused to quash the proceedings in FIR registered under section 307 IPC etc. on the ground that offence under section 307 was of serious nature and would fall in the category of heinous crime. In the case of Shiji vs. Radhika & Anr. (2011) 10 SCC 705 the Court quashed the proceedings relating to an offence under section 354 IPC with the following observations: “We have heard learned counsel for the parties and perused the impugned order. Section 320 of the Cr.P.C. enlists offences that are compoundable with the permission of the Court before whom the prosecution is pending and those that can be compounded even without such permission. An offence punishable under 17 Page 18 Section 354 of the IPC is in terms of Section 320(2) of the Code compoundable at the instance of the woman against whom the offence is committed. To that extent, therefore, there is no difficulty in either quashing the proceedings or compounding the offence under Section 354, of which the appellants are accused, having regard to the fact that the alleged victim of the offence has settled the matter with the alleged assailants. An offence punishable under Section 394 IPC is not, however, compoundable with or without the permission of the Court concerned. The question is whether the High Court could and ought to have exercised its power under section 482 the said provision in the light of the compromise that the parties have arrived at.” 23. In a recent judgment in the case of State of Rajasthan vs. Shambhu Kewat & Ors. 2013 (14) SCALE 235, this very Bench of the Court was faced with the situation where the High Court had accepted the settlement between the parties in an offence under Section 307 read with Section 34 IPC and set the accused at large by acquitting them. The settlement was arrived at during the pendency of appeal before the High Court against the order of conviction and sentence of the Sessions Judge holding the accused persons guilty of the offence under Section307/34 IPC. Some earlier cases of compounding of offence under Section 307 IPC were taken note of, noticing under certain circumstances, the Court had approved the compounding whereas in certain other cases such a course of action was not accepted. In that case, this Court took the view that High Court was not justified in accepting the compromise and setting aside the conviction. While doing so, following discussion ensued: 18 Page 19 “We find, in this case, such a situation does not arise. In the instant case, the incident had occurred on 30.10.2008. The trial court held that the accused persons, with common intention, went to the shop of the injured Abdul Rashid on that day armed with iron rod and a strip of iron and, in furtherance of their common intention, had caused serious injuries on the body of Abdul Rashid, of which injury number 4 was on his head, which was of a serious nature. Dr.Rakesh Sharma, PW5, had stated that out of the injuries caused to Abdul Rashid, injury No.4 was an injury on the head and that injury was “grievous and fatal for life”. PW8, Dr. Uday Bhomik, also opined that a grievous injury was caused on the head of Abdul Rashid. DR. Uday conducted the operation on injuries of Abdul Rashid as a Neuro Surgeon and fully supported the opinion expressed by PW5 Dr. Rakesh Sharma that injury No.4 was “grievous and fatal for life”. We notice that the gravity of the injuries was taken note of by the Sessions Court and it had awarded the sentence of 10 years rigorous imprisonment for the offence punishable under Section 307 IPC, but not by the High Court. The High Court has completely overlooked the various principles laid down by this Court in Gian Singh (Supra), and has committed a mistake in taking the view that, the injuries were caused on the body of Abdul Rashid in a fight occurred at the spur and the heat of the moment. It has been categorically held by this Court in Gian Singh (supra) that the Court, while exercising the power under Section 482, must have “due regard to the nature and gravity of the crime” and “the social impact”. Both these aspects were completely overlooked by the High Court. The High Court in a cursory manner, without application of mind, blindly accepted the statement of the parties that they had settled their disputes and differences and took the view that it was a crime against “an individual”, rather than against “the society at large”. We are not prepared to say that the crime alleged to have been committed by the accused 19 Page 20 persons was a crime against an individual, on the other hand it was a crime against the society at large. Criminal law is designed as a mechanism for achieving social control and its purpose is the regulation of conduct and activities within the society. Why Section 307 IPC is held to be non-compoundable, because the Code has identified which conduct should be brought within the ambit of non-compoundable offences. Such provisions are not meant, just to protect the individual, but the society as a whole. High Court was not right in thinking that it was only an injury to the person and since the accused persons had received the monetary compensation and settled the matter, the crime as against them was wiped off. Criminal justice system has a larger objective to achieve, that is safety and protection of the people at large and it would be a lesson not only to the offender, but to the individuals at large so that such crimes would not be committed by any one and money would not be a substitute for the crime committed against the society. Taking a lenient view on a serious offence like the present, will leave a wrong impression about the criminal justice system and will encourage further criminal acts, which will endanger the peaceful co-existence and welfare of the society at large.”

24. Thus, we find that in certain circumstances, this Court has approved the quashing of proceedings under section 307,IPC whereas in some other cases, it is held that as the offence is of serious nature such proceedings cannot be quashed. Though in each of the aforesaid cases the view taken by this Court may be justified on its own facts, at the same time this Court owes an explanation as to why two different approaches are adopted in various cases. The law declared by this Court in the form of judgments becomes binding precedent for the High Courts and the subordinate courts, to follow under Article 141 of the 20 Page 21 Constitution of India. Stare Decisis is the fundamental principle of judicial decision making which requires ‘certainty’ too in law so that in a given set of facts the course of action which law shall take is discernable and predictable. Unless that is achieved, the very doctrine of stare decisis will lose its significance. The related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual Judges. In a way, it achieves equality of treatment as well, inasmuch as two different persons faced with similar circumstances would be given identical treatment at the hands of law. It has, therefore, support from the human sense of justice as well. The force of precedent in the law is heightened, in the words of Karl Llewellyn, by “that curious, almost universal sense of justice which urges that all men are to be treated alike in like circumstances”.

25. As there is a close relation between the equality and justice, it should be clearly discernible as to how the two prosecutions under Section 307 IPC are different in nature and therefore are given different treatment. With this ideal objective in mind, we are proceeding to discuss the subject at length. It is for this reason we deem it appropriate to lay down some distinct, definite and clear guidelines which can be kept in mind by the High Courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it 21 Page 22 should refrain from doing so. We make it clear that though there would be a general discussion in this behalf as well, the matter is examined in the context of offences under Section 307 IPC. 26. The two rival parties have amicably settled the disputes between themselves and buried the hatchet. Not only this, they say that since they are neighbours, they want to live like good neighbours and that was the reason for restoring friendly ties. In such a scenario, should the court give its imprimatur to such a settlement. The answer depends on various incidental aspects which need serious discourse. The Legislators has categorically recognized that those offences which are covered by the provisions of section 320 of the Code are concededly those not only do not fall within the category of heinous crime but also which are personal between the parties. Therefore, this provision recognizes whereas there is a compromise between the parties the Court is to act at the said compromise and quash the proceedings. However, even in respect of such offences not covered within the four corners of Section 320 of the Code, High Court is given power under Section 482 of the Code to accept the compromise between the parties and quash the proceedings. The guiding factor is as to whether the ends of justice would justify such exercise of power, both the ultimate consequences may be acquittal or dismissal of indictment. This is so recognized in various judgments taken note of above. 22 Page 23

27. In the case of Dimpey Gujral (supra), observations of this Court to the effect that offences involved in that case were not offences against the society. It included charge under Section 307 IPC as well. However, apart from stating so, there is no detained discussion on this aspect. Moreover, it is the other factors which prevailed with the Court to accept the settlement and compound he offence, as noted above while discussing this case. On the other hand, in Shambhu Kewat (supra), after referring to some other earlier judgments, this Court opined that commission of offence under Section 307 IPC would be crime against the society at large, and not a crime against an individual only. We find that in most of the cases, this view is taken. Even on first principle, we find that an attempt to take the life of another person has to be treated as a heinous crime and against the society. 28. Having said so, we would hasten to add that though it is a serious offence as the accused person(s) attempted to take the life of another person/victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under Section 307 IPC as well. Therefore, only because FIR/Chargesheet incorporates the provision of Section 307 IPC would not, by itself, be a ground to reject the petition under section 482 of the Code and refuse to accept the settlement between the parties. We are, therefore, 23 Page 24 of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 IPC, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 IPC were unnecessary included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties.

29. At this juncture, we would like also to add that the timing of settlement would also play a crucial role. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the proceedings/investigation. Of course, it would be after looking into the attendant circumstances as narrated in the previous para. Likewise, when challan is submitted but the charge has not been framed, the High Court may exercise its discretionary jurisdiction. However, at this stage, as mentioned above, since the report of the I.O. under Section 173,Cr.P.C. is also placed 24 Page 25 before the Court it would become the bounding duty of the Court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. sustained by the victim. This aspect, however, would be examined along with another important consideration, namely, in view of settlement between the parties, whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak. If the Court finds the answer to this question in affirmative, then also such a case would be a fit case for the High Court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case.

30. We have found that in certain cases, the High Courts have accepted the compromise between the parties when the matter in appeal was pending before the High Court against the conviction recorded by the trial court. Obviously, such cases are those where the accused persons have been found guilty by the trial court, which means the serious charge of Section 307 IPC has been proved beyond reasonable doubt at the level of the trial court. There would not be any question of accepting compromise and acquitting the accused persons simply because the private parties have buried the hatchet. 25 Page 26

31. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: (I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. (II)When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any Court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 26 Page 27 (III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. (IV) On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. (V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. (VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the 27 Page 28 charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. (VII) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the 28 Page 29 criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime. 32. After having clarified the legal position in the manner aforesaid, we proceed to discuss the case at hand. 29 Page 30

33. In the present case, FIR No.121 dated 14.7.2010 was registered under Section 307/324/323/34 IPC. Investigation was completed, whereafter challan was presented in the court against the petitioner herein. Charges have also been framed; the case is at the stage of recording of evidence. At this juncture, parties entered into compromise on the basis of which petition under Section 482 of the Code was filed by the petitioners namely the accused persons for quashing of the criminal proceedings under the said FIR. As per the copy of the settlement which was annexed along with the petition, the compromise took place between the parties on 12.7.2013 when respectable members of the Gram Panchayat held a meeting under the Chairmanship of Sarpanch. It is stated that on the intervention of the said persons/Panchayat, both the parties were agreed for compromise and have also decided to live with peace in future with each other. It was argued that since the parties have decided to keep harmony between the parties so that in future they are able to live with peace and love and they are the residents of the same village, the High Court should have accepted the said compromise and quash the proceedings. 34. We find from the impugned order that the sole reason which weighed with the High Court in refusing to accept the settlement between the parties was the nature of injuries. If we go by that factor alone, normally we would tend to agree with the High Court’s approach. However, as pointed out hereinafter, some other attendant and 30 Page

31 inseparable circumstances also need to be kept in mind which compel us to take a different view

. 35. We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail. However, a very pertinent statement appears on record viz., “respectable persons have been trying for a compromise up till now, which could not be finalized”. This becomes an important aspect. It appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. In this context when we find that the elders of the village, including Sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. The evidence is yet to be led in the Court. It has not even started. In view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. Even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become difficult to prove as to who caused these injuries. The chances of conviction, therefore, appear to be remote. It would, therefore, be unnecessary to drag these proceedings. We, taking all these factors  into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14.7.2010 registered with Police Station LOPOKE, District Amritsar Rural be quashed. We order accordingly.

36. Appeal is allowed. No costs. ……………………………

…J. (K.S.Radhakrishnan) ………………………………J. (A.K.Sikri) New Delhi,

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