- (1.) This is an appeal by way of special leave under Article 136 of the Constitution against the judgment of the Punjab & Haryana High Court in Criminal Appeal Nos. 768-SB of 1997 & 769-SB of 1997 arising out of a complaint case. Facts of the case:
(2.) The facts very briefly are that on 09.02.1989 at about 5.00 a.m. Shankar Dass, who was the Principal of D.A.V. Higher Secondary School, Balachaur, was shot dead by terrorists and Ramesh Kumar, son of the deceased Shankar Dass lodged FIR No. 13 on 09.02.1989 in Police Station, Balachaur. Thirty two persons of village Paili filed a petition before the SHO, Police Station, Balachaur, alleging that terrorists frequent the house of the complainant in Village Paili. The appellants who were posted in Police Station, Balachaur went to the house of the complainant and picked up the complainant and one Kamaljit Kaur, who were working as 'dai' and nurse respectively, and brought them to the Police Station. On 13.02.1989, the complainant sent a petition to the Governor of Punjab by a registered letter alleging that she along with Kamaljit Kaur were taken to the Police Station on 09.02.1989 at 7.00 a.m. and were asked whether the extremists were frequenting their house and when they replied in the negative they were tortured at the Police Station. On the intervention of Maha Singh, President of the Para Medical Union, Kamaljit Kaur, was released, but the complainant was not released. The complainant further alleged in her petition to the Governor of Punjab that in the night of 09.02.1989, the appellants tortured her with patta, made her senseless and had intercourse with her and released her on the morning of 10.02.1989 on the intervention of the Panchayats of Villages Paili, Otal Majarh and Unaramour. Soon after the release, the complainant disclosed to the members of Panchayat what had happened to her in the night of 09.02.1989. In this petition to the Governor of Punjab, the complainant made a request for an enquiry.
(3.) When no action was taken against the appellants, the complainant filed a criminal complaint before the Chief Judicial Magistrate, Hoshiarpur on 25.07.1989 making substantially the same allegations against the appellants. The Magistrate recorded the preliminary evidence of the complainant and took cognizance of the offences under Sections 323 and 504 read with Section 34 of the Indian Penal Code (for short 'IPC') and issued summons to the appellants. The complainant then filed a petition under Section 482 of the Criminal Procedure Code (for short "Cr.P.C.") contending that the appellants should be summoned for standing trial for the offences under Sections 366/342/376/506 read with Section 34 IPC. The appellants also filed a petition under Section 482 Cr.P.C. for quashing the complaint as well as the order of the Magistrate summoning the appellants. Both these petitions were disposed of by order dated 29.07.1991 with the direction to the Magistrate to hold an enquiry in respect of the offences described in the complaint. The complaint was thereafter transferred to the court of the Chief Judicial Magistrate, Chandigarh, by the High Court. Thereafter, the Magistrate took cognizance of offences under Sections 323/342/366/506 read with Section 34 IPC and summoned the appellants and Hussan Lal. The case was committed to the Sessions Court and the Additional Sessions Judge, Chandigarh, was entrusted with the case. The Additional Sessions Judge initially framed charges under Sections 366/504/342 and 323 IPC to which the appellants pleaded not guilty, but thereafter by order dated 16.02.1995 the High Court directed the Additional Sessions Judge to reconsider the framing of charges against the appellants in the light of the allegations made in the complaint and the preliminary evidence recorded in respect of the complaint. The learned Additional Sessions Judge reframed the charges under Section 376 (2) (g) IPC to which the appellants pleaded not guilty and the appellants were tried.;