CRR No. 2366 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRR No. 2366 of 2009 Date of decision: 05.03.2010 Kamlesh ........ Petitioner Versus State of Haryana .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Raj Mohan Singh, Advocate for the petitioner Mr. Sanjeev Sura, Additional A.G., Haryana, for the respondent- State -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This revision petition has been filed against the order dated 27.08.2009 passed by the Additional Session Judge, Faridabad dismissing the application under Section 319 Cr.P.C. filed by the petitioner to summon Baljit son of Pohap Singh. Learned counsel for the petitioner submitted that prosecutrix Kalmesh lodged a complaint to the police on 06.03.2008 with the allegation that her marriage was solemnised with Nardev (accused facing trial) in the year 1998. Differences arose for the last 4/5 years and petitioner under CRR No. 2366 of 2009 2 Section 125 Cr.P.C. Was filed by the petitioner. Divorce petition is also pending and presently the prosecutrix-petitioner is residing in her brother's house in Rajiv Nagar, Palwal. It has been alleged by the petitioner that on 20.02.2008, she was alone at home, when her husband Nardev entered the house after scaling the wall, abused her and then had forcible sexual intercourse with her. She made a complaint to the police. The police summoned Nardev and his family members and a compromises is stated to have taken place, according to which the land and house of the share of Nardev will be transferred in the name of the petitioner to the extent of ½ share by 28.02.2008 and it was agreed that accused will take the complainant with them by 01.03.2008. Thereafter, neither the land was transferred nor the petitioner was taken back and ultimately she lodged the complainant with was later on converted into Section 376-A IPC. The petitioner was medically examined and thereafter challan was presented. In fact, the petitioner made the report to the police involving Nardev and Baljit in the commission of offence. The police twisted the fact and only named Nardev in the complaint. In fact, a criminal complaint under Section 323, 376, 376-A, 452 IPC has been filed by the petitioner on 02.04.2008 in the Court of learned Judicial Magistrate Ist Class, Palwal and the case is still pending in which some of the preliminary evidence has been recorded. It is further stated that in her statement, the petitioner has asserted all the incriminating allegation against Baljit for whom prayer has been made to summon him as an additional accused. Learned counsel for the petitioner was heard. It is specifically noted in the impugned order that the CRR No. 2366 of 2009 3 application under Section 319 Cr.P.C. was not forwarded by the Public Prosecutor. Even then, the matter was decided on merits and while dismissing the said application, the Additional Sessions Judge, Faridabad held as under:- “13. In the present case, complainant/prosecutrix is the wife of accused Nardev already facing trial. She made specific allegation in her complaint made to the police that it is her husband Nardev, who had committed rape upon her on the night of 20.02.2008. Complaint to the police was made on 06.03.2008. In the intervening period, a compromise has been arrived at as per which husband and other in-laws of the complainant had to transfer half of the property of Nardev in the share of complainant and had to take her back. When this settlement was not implemented by the husband and in- laws, then the complainant was made. It is also to be noted that during investigation, statement of Mahender, brother of the prosecutrix was also recorded, as per which he was told by his sister that Nardev had committed rape upon her. Thus, neither in the complaint on which FIR is based nor in the statement of Mahender name of Baljeet, the brother of Nardev surfaced. It is for the first time on 01.06.2009 that when complainant entered in the witness box as PW4, she stated that her husband Nardev and his brother Baljeet had entered the home and had taken turns in raping her. Though she says that SHO did not record the FIR as per her statement and so she had made a complaint to S.P., but no such complaint has been produced on file. Similarly, Mahender, the brother of Kamlesh was examined on 31.07.2009 and told that he had come to know that CRR No. 2366 of 2009 4 Nardev and Baljeet had committed rape upon his sister on the night of 20.02.2008. His statement was recorded by the police in March, 2008. Present application has been moved at the fag end of the trial.” No illegality has been pointed in the impugned order dated 27.08.2009 passed by the Additional Sessions Judge, Faridabad. Meanwhile, learned counsel for respondent No. 2 has placed on record a certified copy of the judgement dated 24.09.2009 passed by the Additional Sessions Judge, Faridabad vide which co-accused Nardev has since been acquitted of the charge. Even otherwise, as per ground No. 8 of the present revision petition, the prosecutrix has filed a criminal complaint under Section 323, 376, 376-A, 452 of Indian Penal Code against both Nardev and Baljit in which preliminary evidence has already been led and the complaint is pending in the Court of learned Judicial Magistrate Ist Class, Palwal. In view of the facts that vide order dated 24.09.2009 passed by the Additional Sessions Judge, Faridabad, the main accused has since been acquitted and also keeping in view the fact that a criminal complaint filed by the petitioner is pending in the Court of learned Judicial Magistrate Ist Class, Palwal in which preliminary evidence has already been recorded, the present revision petition against the order dismissing the application moved by the petitioner is rendered infructuous and is dismissed as such. (Nirmaljit Kaur) Judge March 05, 2010 mohan