CRM No. M 21176 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 21176 of 2010 Date of decision: 01.03.2011 Vipin Saini ........ Petitioner Versus State of Punjab and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Pritam Saini, Advocate for the petitioner Mr. Amit Rana, DAG, Haryana for the respondent - State Mr. Saurabh Chug, Advocate for respondent Nos. 4 and 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 Cr.P.C seeking quashing of FIR No. 786 dated 22.10.2008 under Section 363, 366 IPC registered at Police Post Killa Chowky, P S City, Panipat, District Panipat and its consequential proceedings with further prayer to direct the investigating agency to register a case under Section 193 IPC against respondent No. 4 for deposing falsely against the petitioner in the statement under Section 164 Cr.P.C accusing the present petitioner for commission of offence of rape after leaving the company of the petitioner. CRM No. M 21176 of 2010 2 Respondents No. 4 and 5 were duly served. On 17.08.2010, the matter was adjourned on the request made by learned counsel for respondents No. 4 and 5 to 25.10.2010. However, again on 25.10.2010, learned counsel for respondents No. 4 and 5 prayed for some more time file reply. Accordingly, the matter was adjourned to 20.12.2010. It was also made clear that no further opportunity shall be granted and the matter shall be finally argued on the date fixed. Today, neither learned counsel for respondents No. 4 and 5 is present nor reply has been filed till date. It is, therefore, evident that respondents No. 4 and 5 are no more interested in pursuing the matter. Facts, in short, are that the aforesaid FIR was registered against the present petitioner at the behest of respondent No. 5 Ramesh i.e. father of respondent No. 4 - Reena. As per the allegations in the FIR, respondent No. 4 is stated to be a minor i.e. aged 15 years. The petitioner herein was accused that he induced and abducted respondent No. 4 by befooling her. Whereas, the facts are some what different and speak for themselves. The petitioner and respondent No. 4 ran away from their respective homes on 20-21.10.2008. Respondent No. 4 called the petitioner about 7-8 times from her mobile number (9315399242). They left their respective homes out of their own free will. This fact is admitted by respondent No.4 in her statement suffered before the Chief Judicial Magistrate, Panipat on 11.07.2009. The said statement is placed on record as Annexure P1. It was duly stated in the said statement that she has got married to the petitioner out of her own free will and without any pressure. It was also stated by her that she was major at the time of marriage. She CRM No. M 21176 of 2010 3 further stated that she married with petitioner on 05.01.2009 at Chandigarh. Respondent No. 4 herself moved an application to the CMO Lakhimpur Khiri, U.P., in which, she stated that she wanted to get married to the petitioner and prayed that her bone ossification test be done for determining her correct age. The age proof certificate, issued by the Chief Medical officer, Lakhimpur Khiri is also placed on record as Annexure P2 . Thereafter, respondent no. 4 after getting her age proof got married with petitioner on 05.01.2009 at Chandigarh with their mutual consent. Since the parents of respondent No. 4 i.e. the complainant were not happy and the petitioners felt threatened at their hands, both the petitioners jointly filed CRM M 601 of 2009 before this Court (P5) in which, vide order dated 09.01.2009, interim direction was issued that the petitioners will not be taken in custody by the police on any complaint of the private respondents regarding kidnapping, abduction or rape of petitioner No. 1 alleged against petitioner No. 2. Respondent No. 5 took a specific stand in her reply to the petition that respondent No. 4 was a minor and prayed that the interim order dated 09.01.2009 should be vacated. But, this Court vide order dated 25.03.2009 passed in CRM 429 of 2009 in CRM M 601 of 2009 ordered the interim order to continue and directed the petitioners to be present in Court on 23.04.2009. Thereafter, the matter was adjourned to 26.05.2009. This Court vide order dated 26.05.2009, directed the Chief Judicial Magistrate, Panipat to hold an inquiry within a period of two months regarding the age of Reena-respondent No. 4 as to whether she had attained the age of majority on the date of marriage i.e. 05.01.2009 or not. In pursuance to the said order, the Chief Judicial Magistrate, Panipat completed its inquiry in CRM No. M 21176 of 2010 4 the time bound frame as ordered and submitted her inquiry report (P8) holding that respondent No. 4 was major at the time of her marriage i.e. on 05.01.2009. Meanwhile, respondent No. 4 was forcibly got picked up by respondent No. 5 i.e. her father. The petitioner filed Habeas Corpus petition bearing CRL W P No. 1133 of 2009. By that time, respondent No. 4, for the reasons best known to her being under the influence of respondent No. 5, expressed her wish to continue to live with her father-respondent No. 5. As such, she was allowed to accompany respondent No. 5 and CRM M 601 of 2009 was accordingly disposed of. There is no doubt that meanwhile, respondent No. 4 has suffered statement under Section 164 Cr.P.C alleging gange rape against the petitioner and other relatives. Nevertheless, the said statement is shrouded with suspicion and does not expire confidence in as much as; the statement of respondent No. 4 was recorded by the Chief Judicial Magistrate, Panipat on 11.07.2009 which reads as under:- “ It is stated that my age is 20 years. I am major. The name of my father is Ramesh. I have studied 1 and 2 class. I have studied at B R Memorial Public School. My father was married two times. First marriage was with Sudesh from her we two children were born. Elder to me is Sushma whose age is 28 years who is married who is having three children. I am the next younger Reena. My father's second marriage was held with Babli from whom there are two daughters and 1 son. From whom, there were three daughters and one son. Amongst the four, the elder was son Mintu. Next younger was Pooja, next to her was Majhi and one daughter was died. I am called Reena at home. I was married with Vipin Saini on 05.01.2009 at Chandigarh. I have sen the marriage CRM No. M 21176 of 2010 5 certificate on which there are my signatures. Which is Ex P1 (objected for want of mode of proof). The marriage was solemnized with my own wish and without any pressure. I have seen the age certificate which has been issued by the CMO, Lakhimpur which is EX P2. Age certificate dated 04.06.2009 is Ex P3 and EX P4 issued by Lakhimpur. After that I and my husband filed a writ in the Punjab and Haryana High Court for protection which is still pending. My parents got a challan presented against my mother-in-law Somwati who is on bail. My mother-in-law is innocent. Today, when I and my husband reached the gate of court then 5-6 persons attacked upon us in which there was also my father and he threatened that they will not spare me and will shot me with bullet. Then we went to P S Model town, Panipat. I want to live with my husband and I may be left there in police protection.” As per the inquiry report dated 04.08.2008 (P8), respondent No. 4 was major on the date of marriage. Thus, she was in a position to exercise her option. Thereafter, she even appeared before this High Court vide CRM M 601 of 2009 along with present petitioner seeking protection at the hands of respondent No.5 i.e. her father. From the above, it is clear that respondent No. 4 had ample opportunity to raise hue and cry or to allege gang rape which respondent No. 4 never did until and unless she returned back to her parents. It appears that the prosecutrix has been changing her stand. However, the facts narrated above in detail speak for themselves. She was very much a consenting party but is singing a different tune after returning back to her parents. Thus, the very prosecution story is doubtful. In fact, CRM No. M 21176 of 2010 6 from the facts narrated above, no offence under section 376 IPC is made out against the petitioner and the FIR is nothing but a misuse of the process of law. In view of the above, no offence under Section 376 IPC can be said to be made out against the present petitioner. Accordingly, the present petition is allowed and FIR No. 786 dated 22.10.2008 under Section 363, 366 IPC registered at Police Post Killa Chowky, P S City, Panipat, District Panipat and all the subsequent proceedings arising therefrom are hereby quashed. (Nirmaljit Kaur) Judge 01.03.2011 mohan