IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc. No.4118 -M of 2010 DATE OF DECISION : FEBRUARY 22, 2010 NAVEEN & ORS. ....... PETITIONER(S) VERSUS STATE OF HARYANA .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Vinod Ghai, Advocate, for the petitioner(s). Mr. Gaurav Dhir, DAG, Haryana. AJAI LAMBA, J. (Oral) This petition under Section 439, Code of Criminal Procedure, has been filed for bail in case FIR No.142 dated 1.9.2009 under Sections 363, 366, 376, 506, 34, Indian Penal Code, Police Station, Mohana, District Sonepat. Learned counsel for the petitioners contends that the statement under Section 161, Code of Criminal Procedure, given by Varinder, father of the prosecutrix, has been falsified by his statement given on oath before the trial court in Sessions Case No.915 of 2009, relating to FIR No.143 dated 1.9..2009 under Sections 302, 201, 34, Indian Penal Code, and Sections 25 and 27 of the Arms Act, Police Station, Mohana, District Criminal Misc. No.4118 -M of 2010 2 Sonepat. Learned counsel for the petitioners has pointed out that so as to cover up the murder of the prosecutrix i.e. daughter of Varinder, the present FIR for commission of rape was lodged. It transpires that on 30.8.2009, the prosecutrix seems to have eloped with Naveen (petitioner No.1). She is stated to have returned back on 31.8.2009 at 5.30 a.m. The present FIR was registered on 1.9.2009 at serial No.142 in Police Station Mohana, District Sonepat. As per the averments in the FIR, the prosecutrix was present in the house on 30.8.2009. Complainant-Indrawati along with her husband-Varinder had gone to the fields. When they came back at 6.30 p.m., the prosecutrix was not found in the house. An attempt to locate her was made. After two hours, a mobile phone was found lying in the house which, on inquiry, was found to be belonging to Naveen (petitioner No.1). Subsequently, the complainant is stated to have come to know that her daughter had been taken away by the petitioners by alluring her, with a view to commit bad act with her. On 31.8.2009 at 5.30 a.m., she came back and also endorsed the fact that the three persons had committed rape. The FIR was, however, lodged on the next day i.e. on 1.9.2009. So far as the case of murder is concerned, the FIR was lodged at the instance of Varinder, father of the prosecutrix, against his own brother and three other persons. When the statement of Varinder was taken during the course of trial, Varinder clearly stated, in cross- examination, in the following terms:- “I have heard statement given by me Ex. PD. No such statement was made by me before police. However, police had obtained my thumb impression on some blank papers. I Criminal Misc. No.4118 -M of 2010 3 never stated before the police that my daughter Nitu had eloped with Navin, Jaswant, Prem and Jasbir on 30.8.2009 and due to this my daughter Ritu since deceased used to reside at the house of my brother Jai Singh accused. (Confronted to portion A to A of Ex. PD, wherein it is so recorded). ....” The fact that father of the prosecutrix has given the statement, as extracted above, on oath, is not in dispute. Considering the totality of facts and circumstances of the case, it transpires that in the context of the offence of rape, the prosecutrix is not available to give her statement. Her statement under Section 164, Code of Criminal Procedure, was not recorded. The prosecutrix was not even medico-legally examined. The father of the prosecutrix got registered the FIR in relation to murder of his own daughter against his own brother and others, in which he turned hostile. The father also disowns his statement given in support of present FIR case. In such circumstances, it cannot be ruled out that it was a ruse on the part of the family of the prosecutrix to have got registered the present FIR. In view of the above, this petition is allowed. Bail to the satisfaction of CJM/Duty Magistrate, Sonepat. It is, however, observed and made clear that the documents have been considered only in the context of prayer made for bail and are not observations or findings in regard to the facts of the case. February 22, 2010 ( AJAI LAMBA ) Kang JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?