IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc M- 37891 of 2010 Date of decision: 01.03.2011 Raghuvansh Mandal …Petitioner Versus State of Punjab …Respondent Present: Mr Nitin Thatai, Advocate for the petitioner. Mr TS Salana, DAG, Punjab. S.S.SARON, J. Heard counsel for the parties. The petitioner seeks regular bail in case FIR No.78 dated 17.10.2010, for the offence under Section 376 IPC, registered at Police Station Dugri, Ludhiana. The petitioner is the maternal uncle of the prosecutrix. He got registered FIR No.37 dated 19.02.2009 (P-1) at Police Station Model Town, District Ludhiana in which Moti Lal it has been alleged had kidnapped his niece (prosecutrix). The FIR against Moti Lal is in respect of offences under Sections 363, 366 and 376 IPC. According to the petitioner, who is complainant in FIR No.37 dated 19.02.2009 (P- 1), his niece aged about 15½ years on 15.02.2009 at about 7.30 p.m. had gone to grocery shop Jawadi for purchasing house hold articles. She had not returned. The complainant-Raghuvansh Mandal (petitioner) had searched for her at his own level. During the search of his niece, the petitioner came to know that Moti Lal who resides in front of his house and was earlier also generally teasing his niece (prosecutrix) and was trying to entangle her in his net, was also not present at his house. The petitioner had prevented Moti Lal many a Criminal Misc M- 37891 of 2010 2 times from troubling his niece. The said Moti Lal was not present from 15.02.2009. It is alleged that Moti Lal had enticed away the niece of the petitioner by alluring her on the pretext of intention to marry her. During investigation of the case, the niece of the petitioner was recovered and her statement under Section 164 Cr.P.C was recorded by the learned Judicial Magistrate, Ist Class on 26.02.2009. In her statement the prosecutrix stated that on 15.02.2009 at about 7 O’clock in the evening she had alone gone to the grocery shop which is at Punjabi Bagh. While she was going, Moti Lal son of Ram Yadav came on his motor cycle from the front. The prosecutrix was going to the grocery shop for buying mustard oil. Moti Lal by showing her a knife made her forcibly sit on the rear seat of his motor cycle and went on the Hambra Road towards a farm house, which is owned by Suraj Madan. There the prosecutirx was locked in a room by Moti Lal and he himself went elsewhere. On Monday, 16.02.2009, Moti Lal along with Suraj Madan came to the room where she had been locked. On coming to the room first Suraj Madan forcibly committed rape on her. Thereafter Moti Lal also committed rape on her without her consent. Then they both locked her in the room and went away. She remained locked in the room for three days. They used to give her to eat once a day. During this period her maternal uncle (Raghuvansh Mandal- petitioner) informed the police and on his complaint Moti Lal was arrested. The police by bringing Suraj Madan along came to the room where she was locked. Then the police brought her along and her custody was given to her maternal uncle (Raghuvansh Mandal- petitioner). She did not raise any noise because Moti Lal had threatened to kill her. It is stated that the said statement was being given by her on her own. Criminal Misc M- 37891 of 2010 3 On the basis of said statement of prosecutrix, the offence of rape it is submitted is against Moti Lal and Suraj Madan and not the petitioner who is the maternal uncle of the prosecutrix. The police however, investigated the case and Inspector Leela Devi, Incharge, Crime Against Women Cell (CAW) Ludhiana from her secret and open inquiry; statement of witnesses and perusing the file and inquiries made from the place of occurrence, found that the date of birth of the prosecutrix was 2.3.1991. Besides, specially on the statement of the prosecutrix it was found that the complainant of the case namely Raghuvansh Mandal (petitioner) firstly in the year 2007, then in the year 2009 in the month of February and lastly some days after recovery of the prosecutrix in the present FIR along with his friend Pramod Khosla alias Pardhan had committed rape on the prosecutrix against her wishes. It was observed that the prosecutrix had gone with Moti Lal on her own and thereafter, they got married also. It was observed that the petitioner Raghuvansh Mandal had forced the prosecutrix to make a false statement in Court under Section 164 CrPC against Suraj Madan. It was recommended that on the basis of statement of the prosecutrix recorded under Section 161 CrPC, there being no mention of any rape being committed by Suraj Madan on the prosecutrix; a cancellation report be filed against Suraj Madan. Besides, a case be registered against Raghuvansh Mandal (petitioner) and his friend namely Pramod Khosla alias Pardhan at Police Station Dugri for the offence under Section 376 IPC which may be investigated and a disciplinary proceeding be initiated against Daleep Kumar, SHO and HC Daljit Singh in view the statement of the prosecutrix and the applicant Suraj Madan. Criminal Misc M- 37891 of 2010 4 The case now is fixed for framing of charges before the learned trial Court. The petitioner is the maternal uncle of the prosecutrix. The petitioner had lodged the FIR (Annexure P1) 19.02.2009 against Moti Lal. In the course of the said investigation the prosecutrix was recovered and her statement has been recorded by the learned Judicial Magistrate, Ist Class on 26.02.2009. Thereafter, Suraj Madan submitted an application dated 29.03.2010 in which he alleged that in FIR No.37 dated 19.02.2009 (Annexure P1) he had been falsely implicated. On the basis of said representation the present FIR (Annexure P2) has been registered against the petitioner. The prosecution is to prove its case by leading evidence. The challan in the case has been filed against the petitioner in respect of the offence under Section 376 IPC. The trial in the case is likely to take time. The prosecutrix has been taking different stands at different times. At one stage in her statement under Section 164 CrPC, she states that Moti Lal and Suraj Madan had committed rape on her. However, before Inspector Leela Devi, she takes a different stand and allegations of rape have been made against the petitioner. The Police has investigated the case and filed its charge-report (challan). The question regarding framing of charges is to be considered by the learned trial Court at the time of trial. Therefore, it would be inappropriate to comment one way or the other as regards the two versions as it may affect the trial of the case. However, in the facts and circumstances, it would be just expedient that petitioner is admitted to bail. Accordingly, the petitioner on his furnishing personal bond and surety to the satisfaction of Chief Judicial Magistrate, Ludhiana shall be admitted to bail. Nothing stated or observed herein shall be Criminal Misc M- 37891 of 2010 5 construed as an expression of opinion on the merits of the case and the learned trial Court shall consider the case on the basis of material and evidence as adduced before it uninfluenced by any observations made herein. ( S.S.SARON ) March 1, 2011 Judge amit