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2004 DIGILAW 1172 (PNJ)

Mohinder Kumar v. State Of Haryana

2004-10-13

HARJIT SINGH BEDI

body2004
Judgment H.S.Bedi, J. 1. This appeal arises out of the following facts : 2. Complainant Rattan Singh had two sisters. His elder sister was married whereas the younger Kiran Devi aged about 17-1/2 years had completed her matriculation examination and was still unmarried. On 13.4.1991, Kiran Devi along with her family members went to sleep at about 11.00 P.M. She was, however, found missing the next morning. Rattan Singh made a search for her and was ultimately informed by Rajpal @ Pale Ram Lamberdar and Balbir Singh that she had been taken away by Dr. Mohinder Kumar Aggarwal accused on his scooter at about 2.00 A.M. Rattan Singh accordingly lodged a First Information Report expressing his suspicion that Kiran Devi had been kidnapped by Dr. Mohinder Kumar Aggarwal. On 16.4.1991, Dr. Mohinder Kumar Aggarwal was apprehended at the Railway Station Ambala Cantt. and Kiran Devi was recovered from him. After completion of the investigation, the matter was committed to the court of Sessions for trial and a charge under Sections 363, 366 and 376 of the Indian Penal Code was framed against the accused and as he pleaded not guilty he was brought to trial. 3. The prosecution in support of its case, examined inter alia PW-2 Varinder Nagpal, who medico-legally examined the accused on 16.4.1992 vide Ex. PC and opined that there was nothing to suggest that he was unfit to perform sexual intercourse, Dr. Anita Sethi as PW-5, who had examined Kiran Devi, and found no sign of injury on her person but stated that it could not be ruled out that she had been raped, Kiran Devi PW-6, the prosecutrix who deposed that she had been lured away by the accused who had also threatened that in case she did not come with him, he would defame her in the village, Rattan Singh (PW-8) and Balbir Singh (PW-9) the brother and father respectively of the prosecutrix Kiran Devi, who stated that she was also known as Suman Kumari and that her date of birth was 4.1.1974 and the investigating officer Mohinder Kumar ASI, PW-10. The statement of the accused was recorded under Section 313 Cr.P.C in which he denied the allegations levelled against him and examined DW-1 Vir Singh, DW-2 Jugal Kishore and DW-3 Naginder Parshad Bainjuwal in his defence. 4. The statement of the accused was recorded under Section 313 Cr.P.C in which he denied the allegations levelled against him and examined DW-1 Vir Singh, DW-2 Jugal Kishore and DW-3 Naginder Parshad Bainjuwal in his defence. 4. The court held that it was clear from the record that the prosecutrix was about seventeen and a half years of age at the time of incident and there was no evidence to suggest that any rape had been committed by the accused after she had taken her away on the night in question. It was also found on her admission that the letters Ex. DA/1 to DA/22 and greeting cards Ex. DB and Ex. DC had been written by the prosecutrix to the accused and it was thus clear from the record that both of them were involved in a love affair and as such there was no question of the involvement of the accused in a case of rape. The accused was accordingly held guilty only under Section 363 IPC and sentenced to undergo Rigorous Imprisonment for three years and a fine of Rs. 500/- and in default of payment of fine, he was to undergo R.I. for six months. Hence this appeal. 5. Mr. Sidhu, the learned counsel for the appellant has pointed out that there was no evidence to connect the Birth Certificate Ex. PQ of Sunil Kumari with the prosecutrix Kiran Devi, and as such it was clear that the prosecutrix was more than 18 years of age as on the date in question. He has stated that as both the accused and the prosecutrix were now happily married (though not with each other) and the fact that she had been involved in a love affair with the accused, this was a fit case for the grant of probation to him. 6. The learned State counsel has submitted that as the accused had taken away the girl from the custody of her parents and, therefore, had committed a grave crime, no leniency was called for. 7. I have heard learned counsel for the parties and have gone through the record. 8. It is clear from the Certificate Ex. PD that it cannot be connected with Kiran Devi. It is, however, clear from Kiran Devis statement that she admits the authenticity of the letters Ex. DA/1 to DA/22 and the greeting cards Ex. DB and DC. 7. I have heard learned counsel for the parties and have gone through the record. 8. It is clear from the Certificate Ex. PD that it cannot be connected with Kiran Devi. It is, however, clear from Kiran Devis statement that she admits the authenticity of the letters Ex. DA/1 to DA/22 and the greeting cards Ex. DB and DC. It is also clear that she admitted that she was involved in a love affair with the accused. Mr. Sidhu points out that both the parties are now happily married and it would be appropriate to close the chapter for all time, as the accused is now 40 years of age. Keeping in view the above facts, I think it proper that the accused should be released on probation on conditions which shall be fixed by the trial Court. The accused shall appear before the trial Court within a period of two months from the date that a certified copy of this judgment is supplied to accused. The appeal stands disposed of as such. Dasti.