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2014 DIGILAW 981 (PNJ)

Lata Kumari v. Harish @ Monti

2014-06-30

ASHUTOSH MOHUNTA, KULDIP SINGH

body2014
JUDGMENT Mr. Kuldip Singh, J.: - Prosecutrix has preferred this appeal against the judgment dated 11.2.2014, passed by learned Additional Sessions Judge, Pathankot, whereby accused Harish @ Monti and Yudhvir Saini, who were summoned to face trial under Section 319 Cr.P.C., were acquitted of the charges framed against them under Sections 363, 366-A and 376 IPC. 2. The prosecution story, in brief, is that Sushma, mother of the prosecutrix, approached the police on 22.2.2010 and made a complaint that her daughter, i.e. prosecutrix, aged about 17/18 years, is studying in BA-III year in S.D. College, Khosla Mill, Sarna. Her daughter had gone to attend annual function to be held at her college on 21.2.2010 at 10:30 AM, but she did not return home till 6:00 PM. She and her brother-in-law Ram Ditta went to the college to enquire about the prosecutrix and came to know that prosecutrix had not come to attend the college in the morning. She had suspicion that some unknown boy of village Sarna had kidnapped her daughter by alluring her (prosecutrix) with false promise of marriage. Accordingly, police registered a case under Sections 363 and 366 IPC. During the investigation, it came out that one Gaurav @ Billa, who was already undergoing sentence in case No. 273, dated 9.9.2006 under Section 307 IPC and was on parole from 5.2.2010 to 6.3.2010, has committed the crime. Said Gaurav @ Billa had also jumped the parole. Later on, said Gaurav @ Billa (accused) surrendered in the Court. 3. During the course of investigation, the prosecutrix was produced by her father Sham Lal and mother Sushma before the police and her (prosecutrix’s) statement was recorded by the police wherein she alleged that accused Gaurav had kidnapped her on the false promise of marriage and accompanied her to different places and had also made physical relations with her on the false promise of marriage and later on against her wishes. When she came to know about the antecedents of the accused Gaurav, she ran away from his custody. Prosecutrix was medically got examined from Civil Hospital, Pathankot. 4. After completion of investigation, challan was presented against accused Gaurav under Sections 363, 366-A and 376 IPC and he was accordingly chargesheeted. However, during the trial, prosecutrix as well as her mother Sushma Devi made statement levelling allegations against present respondents Harish @ Monti and Yudhvir Saini. Prosecutrix was medically got examined from Civil Hospital, Pathankot. 4. After completion of investigation, challan was presented against accused Gaurav under Sections 363, 366-A and 376 IPC and he was accordingly chargesheeted. However, during the trial, prosecutrix as well as her mother Sushma Devi made statement levelling allegations against present respondents Harish @ Monti and Yudhvir Saini. The trial Court accordingly summoned the said accused under Section 319 Cr.P.C. 5. All the three accused were served with chargesheet under Sections 363, 366, 376 and 120-B IPC. 6. In support of its case, prosecution examined Sushma Devi (PW1), Prosecutrix (PW2), Sham Lal (PW3), Dr. Indu Mahajan (PW4), Dr. Rajinder Parsad, Medical Officer (PW5), Sunny Kanotra (PW6), Inspector Satish Chander (PW7), Inspector Paramvir Singh (PW8), Manjit Singh (PW9) and closed the prosecution evidence. 7. When examined under Section 313 Cr.P.C., accused Yudhvir Saini claimed that he is studying in CGC College, Landran, Mohali. His friend Harish @ Monti is also studying. He claimed that he and Harish do not know Gaurav. There was political rivalry in the village between the father of the complainant and his father. Therefore, they have been falsely implicated. Accused Harish @ Monti claimed that prosecutrix has levelled false allegations against him. 8. In defence, accused examined Gurjit Singh (DW1) and Om Parkash (DW2). 9. After hearing the prosecution, the learned defence counsel and going through the evidence, learned Additional Sessions Judge, Pathankot, convicted accused Gaurav under Sections 363, 366 and 376 IPC and sentenced him accordingly. However, present respondents Harish @ Monti and Yudhvir Saini were acquitted of the charges framed against them. Prosecutrix has preferred this appeal against part of the judgment, vide which accused Harish @ Monti and Yudhvir Saini were acquitted. 10. We have heard the learned counsel for the appellant and have also examined the judgment and the supporting documents produced with the file. 11. We are of the view that there is no illegality or perversity in the judgment of the trial Court qua respondents Harish @ Monti and Yudhvir Saini. It comes out that as per the prosecution case, prosecutrix was enticed away by accused Gaurav on 21.2.2010. Prosecutrix stayed with said Gaurav and as per her statement in the Court, on 26.4.2010 she came to know that Gaurav is a proclaimed offender in some criminal case. It was thereafter that she slipped away from the custody of Gaurav. It comes out that as per the prosecution case, prosecutrix was enticed away by accused Gaurav on 21.2.2010. Prosecutrix stayed with said Gaurav and as per her statement in the Court, on 26.4.2010 she came to know that Gaurav is a proclaimed offender in some criminal case. It was thereafter that she slipped away from the custody of Gaurav. In this way, prosecutrix remained with accused Gaurav for more than 2 months. During the investigation, prosecutrix was produced before the police by her father and mother and her statement was recorded by the police. In her (prosecutrix’s) initial statement to the police, she stated that Gaurav had kidnapped her on the promise of marriage and had accompanied her to different places and made physical relations with her on the false promise of marriage and later on against her wishes. When she came to know about the antecedents of Gaurav, she ran away from his custody. In the statement, there was no mention about the involvement of Harish @ Monti and Yudhvir Saini (respondents). It was for the first time in the Court that the prosecutrix named the said two respondents. She changed the entire story and stated in the Court that on 21.2.2010, Harish alongwith Yudhvir Saini and Gaurav forcibly gave her cold drink and took her to Tourist Hotel, Pathankot, and committed rape against her wishes. Accused Gaurav represented himself as resident of Jalandhar having house in Malaysia. Allegations were also levelled that accused Yudhvir Saini and Harish had also committed rape with her (prosecutrix). It is to be noted that during investigation, the father and mother of the prosecutrix never stated before the police that their daughter had disclosed them about the involvement of accused Harish and Yudhvir Saini in the crime. Nor the prosecutrix made any such statement before the police. The prosecutrix remained with Gaurav for more than two months. Inspector Satish Chander, who had partly conducted the investigation, appeared as PW7 and stated that he had asked the prosecutrix to record her statement under Section 164 Cr.P.C., but she did not agree. He proved the statement made by the prosecutrix before the police. 12. In this case accused Gaurav has been convicted and sentenced. All the allegations qua him will be examined separately. In this appeal, we will confine only to the allegations levelled against respondents Harish @ Monti and Yudhvir Saini. He proved the statement made by the prosecutrix before the police. 12. In this case accused Gaurav has been convicted and sentenced. All the allegations qua him will be examined separately. In this appeal, we will confine only to the allegations levelled against respondents Harish @ Monti and Yudhvir Saini. The names of Harish and Yudhvir Saini never appeared during investigation. None of the witnesses levelled any allegation against them during investigation. For the first time, it was only during the trial that prosecutrix levelled allegations against them. When the prosecutrix was subjected to cross examination during trial, she admitted that police had recorded her statement regarding the involvement of accused Gaurav only. She did not make any statement to the police or any higher authority regarding Harish @ Monti and Yudhvir Saini. She admitted that Gaurav had married with her, though she claimed that the said marriage was forcible one. She admitted the photographs Ex.D1 to D13. The prosecutrix was about 17 years and 8 months at the time of commission of crime. The trial Court took into consideration this fact while recording adverse findings against accused Gaurav. In the record of the Hotel, only the name of Gaurav was there. The father and mother of the prosecutrix were confronted with their statements Ex.DA and Ex.DB made before the police where the names of respondents Harish and Yudhvir Saini do not appear. 13. Now the question would arise whether in these circumstances, the statement of prosecutrix made in the Court for the first time involving Harish and Yudhvir Saini can be believed ? We are of the view that the trial Court has given strong reasoning for disbelieving her qua the role of Harish and Yudhvir Saini (accused). If there was any role of Harish and Yudhvir Saini, the prosecutrix and her parents should have levelled such allegations against them during investigation. We do not agree with the contention of the learned counsel for the appellant that the police deliberately did not record the names of Harish and Yudhvir Saini during investigation. If it was so, there was nothing which prevented the prosecutrix and her parents from making complaint to the higher authorities or filing a criminal case before the Court against Harish and Yudhvir Saini. 14. If it was so, there was nothing which prevented the prosecutrix and her parents from making complaint to the higher authorities or filing a criminal case before the Court against Harish and Yudhvir Saini. 14. In these circumstances, we are of the view that the statement of prosecutrix qua the role of Harish @ Monti and Yudhvir Saini was rightly disbelieved by the trial Court by giving proper and sound reasoning. There is no illegality or perversity in the said judgment qua the role of Harish @ Monti and Yudhvir Saini. Accordingly, the present appeal stands dismissed. ---------0.B.S.0------------ —————————