CRM No. M 1662 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 1662 of 2011 Date of decision: 26.05.2011 Preet Kaushik ........ Petitioner Versus State of Haryana and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. J S Hooda, Advocate for the petitioner Mr. Sidrath Sarup, DAG, Haryana for the respondent - State Mr. R K Malik, Senior Advocate with Mr. Vishal Aggarwal, Advocate for SI Pardeep Kumar Mr. Som Nath Gaur, Advocate for respondent No. 4 Mr. Animesh Sharma, Advocate for respondent No. 5 -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 of the Code of Criminal Procedure for quashing of FIR No. 223 dated 19.09.2010 under Section 363, 366A, 376, 506 of Indian Penal Code, registered at Police Station Sector 10, Gurgaon, District Gurgaon and all the subsequent proceedings arising CRM No. M 1662 of 2011 2 thereof. Learned counsel for the petitioner submitted that on 18.09.2010, respondent No. 4 went to the house of petitioner-Preet Kaushik to meet him. At around 8.30/9 pm (night), 7/8 young aged boys, with muffled faces having Saria and Lathis in their hands assaulted the petitioner. They beaten up the petitioner with danda blows and pushed him down from the roof. Thereafter, they raped Respondent No. 4. The petitioner and respondent No. 4 went to the Police Chowki, Sector 9, Gurgaon for lodging the complaint but the police being drunken did not register the FIR. Accordingly, on the same night, both respondent No. 4 and the petitioner approached the higher police officials. They asked respondent No. 4 to get medically examined and return back on the next morning. In the morning, the police reused to register the FIR and shooed them away. They insisted for registration of the FIR. Accordingly, the police official called the mother and brother of respondent No. 4 and by misrepresenting the facts to the mother and brother of respondent No. 4, got a false FIR registered against the present petitioner. The petitioner, therefore, approached the higher police officials and FIR No. 224 dated 20.09.2010 was registered by the local police but some how the correct facts were not noted in the said FIR. When the petitioner came to know about his false involvement, respondent No. 4 tendered her sworn affidavit dated 30.09.2010 to the higher police authorities and gave statement on oath to the effect that the impugned FIR which has been registered by the police against the petitioner is false. Vide her aforesaid affidavit, respondent No. 4 deposed that the police officials took her mother and brother, they have CRM No. M 1662 of 2011 3 colluded with each other and registered a false case of rape and abduction against petitioner, whereas, rape was committed by another person who had come to kill the petitioner. She has further deposed that she can recognize the person who had committed rape upon her. In view of the above, the Director General of Police, CID, Haryana, Chandigarh, vide its letter (P5) directed the Commissioner of Police, Gurgaon as under:- “Kindly peruse affidavit dated 30th September, 2010 of Minu d/o late Bhim Singh, News Paper clippings of Punjab Kesari, Delhi, dated 27th September, 2010 and the attached CD received in this office. It appears that FIR No. 223 dated 19.09.2010 under Sections 363, 366A,376, 506 IPC in Sector 10, Gurgaon stands registered against Preet Kaushik son of Mahi Pal Singh, House No. 70, Gali No. 7, Devi Lal Nagar, Gurgaon based on the statement of the mother of prosecutrix, Smt. Indira Devi alleging that Preet Kaushik committed rape with her daughter Minu after kidnapping her. However, the prosecutrix Minu has stated in her affidavit that no rape was committed with her by Preet but it was some other boy who had raped her on 18.09.2010 between 08.30 pm to 09.00 pm in the house of Preet. The police has arrested Preet Kaushik without taking into consideration the statement of Minu. In this context, it is stated that the statement of Minu be got recorded under Section 164 Cr.P.C immediately and further necessary action taken accordingly. It should also be ensured that prosecutrix is not harassed by anyone as some of them are threatening to send her to Nepal. Action against police officials be taken if they have not conducted the investigation properly without verifying the factual CRM No. M 1662 of 2011 4 position. Action taken report be sent to this office early.” However, no such statement of the prosecutrix was recorded. Accordingly, notice of motion was issued and respondent Nos. 4 and 5 were directed to be served through respondent No. 3 for 09.03.2011. On that date, respondent No. 4 put in appearance in the Court, whose identity was duly verified by SI Pardeep Kumar. Mr. Som Nath Gaur, Advocate appeared and filed his power of attorney on behalf of respondent No. 4. She expressed her willingness for recording her statement. Accordingly, her statement was recorded. Her statement reads as under:- “Stated that the Police official, who is present in the Court, came to our house. He informed my mother in my presence that she is required to be present in the Court for 09.03.2011. Thereafter, I went to the house of Mahipal Singh father of Preet Kaushik and asked him whether he is going to the Court at Chandigarh. He informed me that he will go to the High Court on 09.03.2011. Accordingly, I expressed my desire to accompany him to the High Court. I have come to the High Court out of my own free will. Petitioner Preet Kaushik has done no wrong with me. I had also mentioned the said fact to the officer present in Court. However, he did not listen to me. The person, who had misbehaved with me, was present in the Police Station. I mentioned and pointed out this fact to the said officer. However, he allowed the said person to go away. I pleaded with the said officer to record my statement. Still, petitioner Preet Kaushik was arrested and taken in police custody. Whereas, other person, who was present at Police Station, and was the person who committed rape, was allowed to go.” CRM No. M 1662 of 2011 5 Reply was filed by SI Pardeep Kumar, explaining therein as to why the statement of prosecutrix was not recorded in spite of the direction of DGP. It was stated that respondent No. 5 Indira Devi i.e. mother of the prosecutrix had given her affidavit during the course of investigation disclosing that her daughter Meenu was minor and was under the influence of the accused and his father. She, therefore did not allow the statement of her daughter to be recorded. It is, therefore, obvious from the above facts that the prosecutrix-respondent No. 4 has been clamouring on the top of her voice telling each and every one at every stage that it was not the present petitioner who had misbehaved and raped her, rather, he had accompanied her to the police station to get her statement recorded but nobody was recording her side of the story. Her stand was consistent throughout. The same is evident from the following facts:- a) FIR No. 223 dated 19.09.2010 under Section 363, 366-A, 376, 506 IPC, PS Sector 10, Gurgaon, was registered by the local police at her behest. No mention of rape was made in the said FIR. b) On 30.09.2010, the prosecutrix executed her sworn affidavit and sent the same to the DGP, CID, Haryana, stating therein, that a false case has been registered against present petitioner Preet Kaushik, whereas, the rape was committed by one another person who had come to kill Preet Kaushik to whom she can recognize on being brought before her. c) It was further stated by her that FIR against the present petitioner was registered without recording her statement. d) On 09.03.2011, the prosecutrix appeared before this CRM No. M 1662 of 2011 6 Court and got her statement recorded to the effect that the present petitioner had done no wrong with her. Her stand throughout has been consistent that the present petitioner has not committed any rape upon her. As per the letter dated 01.12.2010 of the Police Commissioner, Gurgaon addressed to the Director General of Police, CID, Haryana, the age of the prosecutrix as per the panel of doctors was certified as 16½ and 17 years. The medial report is not the conclusive proof of the exact age. As per the well settled proposition of law, the same can be two years on either side. It is, therefore to be read in favour of the accused which means that she is to be taken as 19 years of age. Even if, it is taken that she is 17 years of age, she is matured enough to point out as to who is the real culprit and she has all throughout stuck to her statement that the present present is not the person who had committed rape upon her. In fact, he was arrested in spite of the fact that she pleaded before the police official that Preet Kaushik was innocent. Thus, the prosecutrix herself has come forward to state that the present petitioner has been wrongly enroped. Therefore, from no stretch of imagination, the offence under Section 376 IPC can be said to be made out against the present petitioner. Meanwhile, SI- Pardeep Kumar has filed the affidavits dated 04.04.2011 and 05.04.2011 in response to the order dated 09.03.2011. Taking into account the explanation as well as his unconditional apology, the Officer is discharged of the said notice of contempt. In view of the above, the present petition is allowed and FIR No. 223 dated 19.09.2010 under Section 363, 366A, 376, 506 of Indian CRM No. M 1662 of 2011 7 Penal Code, registered at Police Station Sector 10, Gurgaon, District Gurgaon and all the subsequent proceedings arising thereof are hereby quashed qua the present petitioner being misuse of the process of law. (Nirmaljit Kaur) Judge 26.05.2011 mohan