Gaje Singh vs State of Haryana

K.S. Tiwana, J. (Oral)

Gaje Singh revision petitioner is employed as a constable in the Haryana Police. On the date of occurrence he was posted at Sirsa.

On 5th July, 1982, Tarsem Kumar, (PW7) and Manju Bala had started from Hissar for Pili Bangan in Rajasthan. Both of them reached Sirsa at about 11.00 p.m. where they had to change the bus to continue their onward journey. Tarsem Kumar and Manju Bala were sitting on a bench, when at about 11/4 p.m. the petitioner, who was allegedly on duty, came there in uniform. He was under the influence of liquor at that time. The petitioner sat by the side of Manju Bala on the same bench and started making indecent gestures towards her. After that the petitioner took out currency note of denomination of Rs. 10/ and asked Manju Bala to accompany him. Tarsem Kumar (PW7) objected to it. Lal Chand, Chand Singh, Surjit Kumar and Surinder Kumar PWs also happened to be there. All of them caught hold the petitioner and removed him towards the Police Station. On the way, they came across ASI Atma Nand (PW6). Tarsem Kumar made his statement, which was sent to the Police Station, on the basis of which formal first information report was recorded. ASI Atma Nand arrested the petitioner, who has injuries on his person. The petitioner was sent for medical examination.

Dr. B.S. Nain (PW1) on 5th July, 1982 at about 4.30 p.m. on medicolegal examination found the petitioner fully conscious. His eyes, breath, gait, speech and orientation were normal. The doctor opined that there was nothing to suggest that the petitioner has taken liquor.

After investigation, the petitioner was sent for trial in the Court of Chief Judicial Magistrate, Sirsa. The learned Magistrate served a notice on the petitioner to show cause as to why he should not be punished under Section 294 of the Indian Penal Code. The petitioner denied the contents of the notice, and pleaded false implication.

At the trial Tarsem Kumar (PW7) supported the case of the prosecution, in accordance with the first information report. Lal Chand, Surjit Kumar, Surinder Kumar and Chand Singh PWs did not support the case of the prosecution, as they turned hostile and refiled from their statements recorded by the Police. ASI Atma Nand (PW6) testified to the details of the investigation and Dr. B.S. Nain (PW1) proved the medicolegal report. Manju Bala was not produced.

When examined under Section 313 of the Code of Criminal Procedure, the petitioner denied the prosecution evidence against him and stated that Tarsem Kumar was indulging in pickpocketing at the Bus Stand. When he apprehended, Tarsem Kumar, he made out this false case against him.

The learned trial Judge believed the state of Tarsem Kumar and convicted the petitioner under Section 294 of the Indian Penal Code. In place of passing a regular sentence, he directed the release of the petitioner on probation on his finishing personal bond in the sum of Rs. 2,000/ with one surety in the like amount for a period of one year and in the meantime to keep the peace and be of good behaviour and appear and receive sentence when called upon during that period.

The petitioner, unsuccessfully challenged the matter in appeal to the Court of Session, where the conviction and sentence, awarded to him, were confirmed.

The petitioner has agitated against the judgments of subordinate Courts, convicting him, before this Court in revision.

On 9th January, 1987, when the revision petition came up before me for motion hearing, a notice was issued to the petitioner to show cause why the sentence awarded to him by the trial Court and affirmed by the First Appellate Court be not enhanced.

I have heard the learned counsel for the parties and have gone through the record. When the conviction has been affirmed by the first appellate Court, the evidence is not generally gone through by this Court in revision, but as the four witnesses cited by the prosecution did not support the case of the prosecution and the testimony of Tarsem Kumar (PW7), as noticed by the Subordinate Courts, did not appear to be convincing, I went through the records of the trial Court.

Tarsem Kumar (PW7) tried to project that the petitioner was excessively drunk, when he was apprehended by Tarsem Kumar and his companions. According to his version, the petitioner did not appear to be in proper control of his movements. The occurrence is stated to be at about 11.15 p.m. The petitioner was produced before ASI Atma Nand at 2.30 p.m. on the same day. The assistant SubInspector found the smell of liquor from the breach of the petitioner. At 4.30 a.m., on the same date, the petitioner was medico legally examined by the Dr. B.S. Nain, who did not find any smell of alcohol or any indication to suggest that he was drunk. The smell of liquor was not likely to disappear so soon. The story set up by Tarsem Kumar (PW7) that the petitioner was excessively drunk, which is not supported by Lal Chand, Surjit Kumar, Surinder Kumar and Chand Singh is not proved on the record.

The next question comes whether the petitioner had made any gestures or gesticulations towards Manju Bala, which could be considered as obscene, disgusting or dirty. The only evidence on the record is of Tarsem Kumar (PW7). He was confronted with his statement recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure, were there is no mention, of any gestures or gesticulations made by the petitioner towards Manju Bala. This part of the prosecution story, narrated by Tarsem Kumar, regarding overtures made to Manju Bala by the petitioner which in his view were obscene, is thus negatived from the record of the prosecution itself.

The other thing, which, according to Mr. Kamal Sharma, learned counsel for the State, falls within the ambit of section 294 of the Indian Penal Code, is the offer to Rs. 10/ by the petitioner to Manju Bala, with an invitation to her to accompany him. Tarsem Kumar (PW7) admitted that on a personal search of the petitioner, at the time of his arrest, no currency note was recovered from his possession. Tarsem Kumar was a party to the apprehension of the petitioner, if the currency note of the denomination of Rs. 10/ had fallen somewhere, he would have deposed about it. He could not state where the currency note of Rs. 10/ had disappeared within the time when the petitioner was apprehended by him and his companions, and produced before ASI Atma Nand (PW6). The absence of the currency note cuts at the root of the testimony of Tarsem Kumar (PW7) and proves that it was a false averment made by him. Lal Chand, Surjit Kumar, Surinder Kumar and Chand Singh, who appeared in the witness box, did not support the contention of Tarsem Kumar (PW7). Although the girl, who is subject to such actions by the accused, is not necessary to be produced at the trial, yet in this case the nonappearance of Manju Bala in the witness box casts doubts on the testimony of Tarsem Kumar (PW7).

Tarsem Kumar (PW7) himself does not appear to be a clean and straight forward witness. At the time of his statement he gave his father''s names as Hans Raj. When pressed during the crossexamination, he stated that his father''s name was Gulab Singh. In order to explain this inconsistency, he rushed to add that he was the son of Gulab Singh, but was adopted by Hans Raj. In the first information report and the examinationinchief he persisted to state that Manju Bala was his sister. During crossexamination he had to admit that she was not his sister. It is not known that relationship he had with Manju Bala.

For the foregoing reasons the notice issued to the petitioner on 9th January, 1984, is discharged, the revision petition is accepted and the conviction of the petitioner is set aside.

This also disposes of Criminal Revision No. 290 of 1984.

Petiton allowed.