Criminal Revision No.601 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Revision No. 601 of 2008 (O&M) Date of Decision: March 30, 2010 Ajmer Singh ...........Petitioner Versus State of Haryana ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.N.S.Shekhawat,Advocate for the petitioner. Mr.H.S.Benniwal,Deputy Advocate General Haryana ** Sabina, J. Petitioner has filed this petition under Section 401 of the Code of Criminal Procedure (`Cr.P.C.' for short) challenging order dated 11.3.2008 whereby the charge was ordered to be framed against the petitioner under Section 120-B of the Indian Penal Code (`IPC' for short). The contents of the complaint made by the complainant-Kali Ram to the police (Annexure P1) read as under:- “1. It is submitted that Neha @ Nisha daughter of my daughter Neelam wife of Jagjit Singh uses to live with me for the last several years. In the year 2005, Ajmer Singh of Wazir Singh resident of village Panghal user to live in H.No. 1366 U/E on rent Criminal Revision No.601 of 2008 (O&M) 2 near my house No.1363. At that time, he had started doing wrong gestures and he was made to understand and he went from there. On 3.1.2006, he entered the front courtyard of our house in the morning with bad intention and was caught. His uncle Hoshiar Singh and others were informed. He came from Barwala and tender a written apology (copy enclosed )and took him away and assured us that in future he will not commit any wrong act. 2. In January 2007, he again came and met father of Neha @ Nisha and gave a proposal to marry Neha. But father of Neha flatly refused to accept the proposal and on this, he went after warning. Later on he came to know about phone Nos. 9416947673 and 9416086814 of my son-in-legally somehow and on this he use to threaten from time and at the same time was maintaining contact with Neha secretly. 3. That on the night intervening Monday and Tuesday i.e. on the night of 9.4.2007, Neha left home along with about Rs.7000/-, 3 Chunnies, 2 shirts, both aforesaid mobiles and all the certificates of her status between 10 O'clock and left the home secretly. On 9.4.2007 the phone call was received in the date time and Neha had talked to the caller an its Phone No:9990329411 and I asking of her mother, she told that it was a phone call of her friend. Due to this reason, there was suspicion of any kind. So Ajmer Singh has enticed away minor girl from quarter No.14 Market Committee Colony, New Grain Market, Jind. 4. That on 10.4.2007 I went to Barwala and met Chaudhary Hoshiar Singh Sarpanch resident of village Panghal and informed Criminal Revision No.601 of 2008 (O&M) 3 him about the entire occurrence. He had also assured me that he and other family members would call Ajmer from Gurgaon and would clarify their position at their house at 8 O'clock in the morning but 11.4.2007. But Chaudhary Hoshiar Singh and Bijender Singh were unable to tell in which company Ajmer Singh works at Gurgaon. 5.Apart from this Chaudhary Hoshiar Singh had also assured me if our girl is with their boy they would handover her till next morning. But neither Chaudhary Hoshiar Singh nor any other family member of his family came to use till 5 p.m. nor they have sent any message in this regard. From this it is clear that our daughter is with their son and they are intentionally concealing her. The date of birth of my daughter is 2 August, 1990. The girl is under age and is not fit for marriage. So you are requested that FIR may be registered against the accused and our daughter may be recovered. While leaving, the girl has written a note with her handwriting and the photocopy of the same is attached. It is excepted that you would recovery the girl at the earliest and would give relief to the aggrieved family.” Learned counsel for the petitioner has submitted that, in fact, prosecutrix had gone of her own free Will with co-accused Bittu and had performed marriage with him. Co-accused Bittu has since been acquitted of the charge framed against him under Sections 363 and 366 IPC. So far as petitioner is concerned, the charge against the petitioner had been framed of conspiracy under Section 120-B IPC. The prosecution during investigation had found that the petitioner was innocent and had moved an application Criminal Revision No.601 of 2008 (O&M) 4 for discharge of the petitioner but the same was not accepted by the trial Court. Learned State counsel,on the other hand, has opposed the petition. After hearing the counsel for the parties, I am of the opinion that the present petition deserves to be allowed. FIR in this case was registered on the basis of complaint made by Kali Ram on the allegations that his grand daughter had been kidnapped and the petitioner had enticed away the prosecutrix. Thereafter, charge under Sections 363, 366 IPC was framed against accused Bittu. So far as petitioner is concerned, he was found innocent. During investigation, an application dated 31.5.2007 (Anneuxre P7) was moved by the prosecution for discharge of the present petitioner. However, disagreeing with the said request, the trial Court ordered further investigation in the matter and, thereafter, a supplementary challan was presented against the petitioner and charge was ordered to be framed against the petitioner vide impugned order under Section 120-B IPC. A perusal of Annexure P4 reveals that at the time of hearing of the bail application filed by co-accused Bittu, the complainant made a statement that he had no objection if bail was granted to the applicant- Bittu and,consequently, co-accused Bittu was ordered to be released on bail vide order dated 23.4.2007 (Annexure P5). Vide order dated 27.4.2007 (Annexure P6), petitioner was also ordered to be released on bail as the Investigating Officer had appeared before the Court and had made the statement that the girl had left the house herself. The prosecutrix, her father and grand father had also appeared in the Court and had made statement, at the time of grant of bail to co-accused Bittu, that Criminal Revision No.601 of 2008 (O&M) 5 the petitioner was not involved in the present case and, consequently, the petitioner was ordered to be released on bail. During the pendency of this petition, the trial against the co-accused Bittu had been concluded. During the course of arguments, learned counsel has placed on record a certified copy of the judgment passed on 5.10.2009 (Mark `A') by the Additional Sessions Judge Jind whereby co-accused Bittu was acquitted of the charge framed against him under Sections 363,366 IPC. A perusal of the judgment reveals that there was no evidence that the accused- Bittu had kidnapped the prosecutrix with intent to marry her and on this pretext had raped her. Rather from the statement of the prosecutrix, it was established that she had left her house of her own accord and had gone to Panchkula to meet her friend. The contents of para 9 of the judgment wherein the statement of prosecutrix has been discussed read as under:- "Prosecution in order to prove its case against the above named accused has examined fifteen witnesses in all. PW1 Dr.Sujata Bansal, Medical Officer, General Hospital, Jind has medico legally examined the prosecutrix/victim on 18.4.2007. PW2 prosecutrix deposed that she left her house of her own and gone to Panchkula where she remained upto 14.4.2007 with her friend Suman. She left the house as her parents wanted to marry her with Ajmer against her wishes. She wanted to continue her study but her parents did not allow her and used to confine her in the house. She was not allowed to go out of the house. She loved Bittu, accused present in the court and wanted to marry him. On her request Bittu accused went to Kurukshetra to bring her because she remained from 14.4.2007 to 18.4.2007 in Ambala Criminal Revision No.601 of 2008 (O&M) 6 Cantt with her friend Rajni. She had not made any complaint against Bittu. She wanted to go to the house of Bittu as she had disclosed in her statement under Section 164 Cr.P.C. Ex.PD. She further deposed that she did not want to go to the house of her parents. She was medico legally examined and her clothes were taken by the doctor. In the cross-examination she deposed that she is living in the house of Bittu being his married wife." Thus, it stands established on record that, in fact, the prosecutrix had a love affair with co-accused Bittu and had performed marriage with him. In these circumstances, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of the law. It appears that the FIR had been lodged against the petitioner merely on the basis of suspicion. Suspicion howsoever strong cannot be taken as proof of a fact. Accordingly, this petition is allowed. The impugned order dated 11.3.2008 is set aside. Petitioner is discharged of the charge framed against him. (Sabina) Judge March 30, 2010 arya