Document Fragment View

Matching Fragments

2.1 On the basis of aforesaid complaint (Ex.P-4) an FIR No.74 dated 09.04.2015 was registered at Police Station Kunjpura, District Karnal. It is apt to mention here that FIR was registered under Sections 363/366 IPC apart from Section 4 of POCSO Act. There was allegation of abduction and attempt to marry against the wishes qua Shubham and there was no allegation of commission of an offence as postulated 2 of 26 under Sections 363/366 IPC against present respondents i.e.Jeet and Ranjeet Malu.
2.2 The Police Authorities had recoded the statement of the prosecutrix under Section 161 Cr.P.C. in the presence of Legal Aid Counsel Sangeeta Mehta. On 10.04.2015, statement of prosecutrix was recorded under Section 164 Cr.P.C.

wherein prosecutrix inter alia disclosed that she had gone to Kurukshetra with Shubham at her own will and Shubham did not commit any wrong act with her. She wanted to marry him and when she was coming back from Kurukshetra, Malu who is residing in their neighbour forcibly caught her and took away in an empty plot. Malu committed wrong act with her and this incident took place on 22.03.2015. 10 days back Jeet forcibly entered her home and committed wrong act with her. At that time, nobody was at home. She does not want to stay at home and she does not want to go along with her parents. 2.3 The FIR culminated into arrest of respondents and police report under Section 173 of Cr.P.C. wherein private respondents herein Jeet S/o Diwan, Ranjeet Malu S/o Mahender Singh were arrayed as accused for commission of an offence under Sections 363/366 IPC and Section 4 of POCSO Act. It is apt to mention here that there was no allegation of commission of an offence punishable under Sections 363/366 IPC against Jeet and Ranjeet still challan under Section 173 was presented against both of them. The 3 of 26 allegation of commission of an offence punishable under Sections 363/366 IPC was against Shubham and he was not arrayed as an accused.

3. The prosecution to bring its case home examined 11 witnesses i.e. PW-1 to PW-11. Apart from 11 witnesses, the prosecution relied upon a number of documentary evidences which included FSL report, statement made under Section 164 Cr.P.C. and different applications moved during the course of investigation. The respondents were examined under Section 313 of Cr.P.C. and both of them denied allegations and pleaded that they have been falsely implicated.

4. The trial Court after considering deposition of witnesses and documents on record came to a conclusion that prosecution has failed to bring home guilt of accused beyond reasonable doubt of commission of offences punishable under Sections 363/366 IPC and Section 4 of POCSO Act. The trial Court noticed the fact that prosecutrix had made similar allegations against Sanjay @ Sanju who was later on acquitted by judgment dated 01.08.2013 (Ex.D-7) passed by Additional Sessions Judge, Karnal.

14 of 26

15. The appellant lodged complaint against Shubham and present respondents. The prosecutrix in her statement under Section 161 Cr.P.C. as well Section 164 Cr.P.C. did not implicate Shubham and police did not file challan against Shubham. There was specific allegation against Shubham of abduction and rape. However, appellant and prosecutrix did not pursue their grievance against Shubham inspite of the fact that police had not filed its report against Shubham. The prosecutrix in her deposition before learned Trial Court categorically stated that Shubham had also raped her. In her statements under Sections 161 & 164 Cr.P.C, she had disclosed that she had gone to Jyotisar at her own will and stayed at residence of maternal uncle of Shubham as wife of Shubham. During trial, she alleged that Shubham had committed rape whereas in her statements under Sections 161 & 164 Cr.P.C, her stand was altogether different qua Shubham and she did not initiate proceedings against Shubham. The police did not file its report under Section 173 Cr.P.C against Shubham even though Shubham was named in the FIR. The appellant and prosecutrix had number of opportunities to pursue their remedies against Shubham. There were specific allegations against Shubham that he had abducted and raped the prosecutrix. There is nothing on record which compelled appellant and prosecutrix to abstain from pursuing their remedies against Shubham. There were 15 of 26 allegations of abduction punishable under Sections 363 & 366 IPC. The allegation of abduction was made out against Shubham and there was no allegation of abduction against present respondents still trial proceeded against both of them under Sections 363 & 366 IPC besides under Section 4 of POCSO Act. Non-pursuing of legal action against Shubham even though there was FIR against Shubham and prosecutrix during trial had alleged that she was raped by Shubham, further indicates nature, character and antecedents of appellant and prosecutrix.