Crl.Misc.No.748-MA of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Misc.No.748-MA of 2010 Date of decision: 1.11.2010 Pinki ... Applicant versus Anil and others ... Respondents CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Mani Ram Verma, Advocate, for the applicant. ... JORA SINGH, J. Pinki daughter of Murari Lal filed this application under Section 378(4) Cr.P.C. for leave to appeal to challenge the judgment dated 10.2.2010 passed by Additional Sessions Judge (Fast Track Court), Bhiwani, in Sessions Case No.77 of 18.12.2009, arising out of private complaint under Sections 376/511/506 IPC. By the said judgment, Anil and Manoj, respondents No.1 and 2, were acquitted of the charges levelled against them. Prosecution story, in brief, is that on 8.10.2008, private complaint under Sections 376/511/354/342/506/34 IPC was instituted by the applicant against Anil and Manoj on the allegation that marriage of applicant was solemnised on 29.4.2006 with Manoj. After marriage, in- laws of the applicant started harassing and maltreating her on account of demand of dowry. Private complaint was filed by the applicant and as per order of the Court, FIR No.268 dated 19.7.2008 under Sections 498- Crl.Misc.No.748-MA of 2010 2 A/406/506/323 IPC was registered. During investigation, accused assured the applicant and her family members not to harass her for want of dowry and also filed affidavits in this regard. As per assurance by the in-laws, applicant had gone to her matrimonial house. Manoj had also filed petition for restitution of conjugal rights and had assured to withdraw the said petition but petition was not withdrawn. Again in-laws of the applicant started misbehaving and maltreating the applicant for want of dowry. Applicant was confined in a room in the house of Anil. Anil had an evil eye on the applicant. When no one was present in the house, then Anil attempted to rape and outrage the modesty of applicant but she managed to save herself by raising a noise. On 20.9.2008, brother of the applicant came to the house of applicant to take her, then came to know about her illegal confinement in a room in the house of Anil. When family members came to take her, then in-laws of applicant directed them to give an affidavit to pay Rs.1,00,000/-. After that, father of the applicant gave an application to DSP, Bhiwani. As per application, DSP, Bhiwani, directed Incharge, Police Post, Kharak Kalan, to take action. When in-laws of applicant came to know about the application, then they came to leave her at Bhiwani in a private vehicle on 26.9.2008 to avoid registration of a criminal case against them. At about 5.00 PM, they came to the office of DSP, Bhiwani, along with the applicant. Vehicle was stopped at some distance from the office of DSP, Bhiwani, leaving the applicant and Anil in the vehicle. Manoj and others had gone to the office of DSP, Bhiwani. Anil started teasing the applicant and when she resisted and tried to come out of the vehicle, then Anil attempted to rape her. Applicant raised noise. In the meantime, one car came from the front side and on seeing the car, Anil had released the Crl.Misc.No.748-MA of 2010 3 applicant. After some time, Manoj came. Entire occurrence was brought to his notice. But instead of helping the applicant, he started abusing her. They threatened her to eliminate if disclosed about the incident to anybody. Out of fear, occurrence was not brought to the notice of any one. After some days, applicant had disclosed about the incident to her family members and had gone to the police station along with her father, but no action was taken. Preliminary evidence was led. After going through the preliminary evidence, accused were summoned to face trial under Sections 342/506/376/511 IPC. After hearing the accused, case was committed to the Court of Sessions for trial. Accused were charged under Sections 376/511/506/34 IPC, to which they pleaded not guilty and claimed trial. Evidence was led by the applicant. After close of the evidence of the applicant, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that applicant was habitual of making false complaints. Earlier also, applicant and her father filed many complaints to SP and DC at Mahendergarh and Narnaul. Complaints were found to be false. After hearing learned counsel for the complainant, learned defence counsel for the accused and from the perusal of evidence on the file, accused were acquitted of the charge levelled against them. We have heard learned counsel for the applicant and have gone Crl.Misc.No.748-MA of 2010 4 through the file. Learned counsel for the applicant argued that applicant was married to Manoj, respondent, on 29.4.2006. In-laws of Pinki, applicant, used to misbehave and maltreat her for want of dowry. Applicant got registered case under Sections 498-A/406/506/323 IPC against her in-laws. Case is pending. During the pendency of dowry case, in-laws of applicant approached her that in future, she was not to be harassed for want of dowry. Affidavits were also given to the effect that respondents were not to misbehave and maltreat the applicant for want of dowry. Manoj had also filed petition for restitution of conjugal rights and gave an assurance that applicant was not to be harassed for want of dowry. He also assured to withdraw the petition but again Manoj and his family members started misbehaving and maltreating the applicant for want of dowry and applicant was kept confined illegally in a room in the house of Anil. When there was no family member in the house, then Anil attempted to rape the applicant. Brother of applicant came, then noticed the applicant locked in a room. Manoj demanded Rs.1,00,000/- and an affidavit from the brother of applicant for her release. Argued that applicant was not having cordial relations with her husband. One criminal case under Sections 498- A/406/506/323 IPC was got registered by the applicant against her in-laws including Manoj. On the other hand, Manoj had also filed petition for restitution of conjugal rights. Respondents had assured not to misbehave and maltreat the applicant and also to withdraw petition for restitution of conjugal rights but the same was not withdrawn. When there was an attempt to outrage the modesty of applicant and rape her against her wish, then there was no reason to ignore the prosecution story. Crl.Misc.No.748-MA of 2010 5 After going through the file, we are of the opinion that evidence on the file including statement of applicant was rightly ignored. Applicant appeared as her own witness. According to applicant, occurrence was dated 26.9.2008 at about 5.30/6.00 PM when Anil had attempted to rape her in a car, which was parked at some distance from the office of DSP, Bhiwani. Immediately after the occurrence, applicant had brought the incident to the notice of her husband. In case there was a compromise amongst the parties to the effect that Manoj and his family members were not to misbehave or maltreat the applicant for want of dowry and also promised to withdraw petition for restitution of conjugal rights, then Manoj with the applicant should have gone to the concerned police station to lodge report. In case, Manoj was not supporting the applicant, then applicant should have approached the concerned police station but no explanation why applicant had not approached the concerned police station immediately after the occurrence. According to the affidavits on file at the time of occurrence, State case under Sections 498-A/406/506/323 IPC registered against Manoj and his family members was pending. Petition for restitution of conjugal rights filed by Manoj was also pending against the applicant. But no compromise in Court. After the occurrence, no complaint in writing was presented before the SHO of Police Station Civil Lines, Bhiwani. First of all, we are of the opinion that there is a delay in filing the complaint on 8.10.2008, whereas occurrence was on 26.9.2008. As per prosecution story, applicant remained confined in the house of Anil for about one month and if Anil had the intention to outrage the modesty of applicant, then during the stay of applicant in his house, he could easily rape Crl.Misc.No.748-MA of 2010 6 the applicant. There was no idea to make an attempt to outrage her modesty when she was in a car parked at some distance from the office of DSP, Bhiwani. Ex.DX/1 is the copy of written statement presented in Court on 1.11.2008. According to written statement, allegation of applicant was that she was residing with her husband from 31.7.2008 to 1.11.2008. In the written statement, there was not a word about the occurrence dated 26.9.2008. Ex.PB is the copy of complaint marked by the DSP on 26.9.2008 but no reference of present incident. Applicant was not having cordial relations with her husband and if there was a compromise amongst the parties and applicant had started residing in a room of Anil and her brother had seen her while illegally confined in a room in the house of Anil, then he should have contacted the police, but no effort to report the matter to the police. After the occurrence, applicant was taken to CIA Staff, Bhiwani. DSP was also present there but no complaint to anybody in the CIA Staff. As per complaint and statement of the applicant, Anil had attempted to rape the applicant earlier to the present occurrence also when she was living in his house. Applicant had filed petition under Section 125 Cr.P.C. and had also filed various complaints against the respondents. In case there was a compromise amongst the parties and Manoj had promised to withdraw petition for restitution of conjugal rights, then question was whether Anil had attempted to rape the applicant in a Tata Sumo parked at some distance from the office of DSP, Bhiwani. Nothing on the file that qua the present occurrence, any complaint was sent to the SP, Bhiwani, or SHO, PS, Civil Lines, Bhiwani, for taking action against the respondents. Without Crl.Misc.No.748-MA of 2010 7 approaching any authority, straightway, private complaint was instituted on 8.10.2008. As discussed earlier, Manoj was also with the applicant in the same Tata Sumo. They had gone towards the office of DSP, Bhiwani. Vehicle was parked at some distance from the office of DSP, Bhiwani, and in the vehicle, applicant and Anil were alone. Then an attempt was made by Anil to outrage the modesty of applicant, but story seems to be not correct one because vehicle was parked at some distance from the office of DSP, Bhiwani. Husband of the applicant was also in the same vehicle. He had simply gone to the office of DSP to enquire whether he was present or not. During day time at about 5.00 PM, Anil was not expected to make an attempt to rape the applicant particularly when applicant stayed in a room of Anil for about one month. If Anil had the intention to outrage the modesty of applicant, then in his house, Anil could easily make an attempt to outrage the modesty of applicant. When applicant was locked in a room, then it was very easy for Anil to make an attempt to rape or rape her. When there was a compromise amongst the parties and affidavits were also given by the accused that in future, applicant is not to be harassed for want of dowry, then in that situation, Manoj, who was in the same vehicle, was expected to protect his legally wedded wife. There was no idea to support Anil, particularly when Anil had earlier misbehaved with the applicant. After going through the file, trial Court rightly opined that there was a delay in filing the private complaint. Secondly, story regarding attempt to rape in Tata Sumo parked at some distance from the office of DSP, Bhiwani, inspires no confidence, particularly when applicant was not having cordial relations with the respondents and litigation was pending Crl.Misc.No.748-MA of 2010 8 amongst the parties. Judgment of trial Court is to be upset if the Court is of the opinion that judgment is perverse and based on misreading of evidence and against law and facts, but once evidence on the file was rightly scrutinized, then no reason to differ with the trial Court. When there are two versions, then the version favourable to the accused is to be accepted. Judgment of acquittal is not to be reversed simply on the allegation that from the evidence on the file, Appellate Court was inclined to take a different view. In the light of above discussion, application for leave to appeal is declined. ( JORA SINGH ) JUDGE 1.11.2010 ( SATISH KUMAR MITTAL ) pk JUDGE