KRISHAN KUMAR AND OTHERS Vs. STATE OF HARYANA

JUDGEMENT

(1.) LEARNED counsel for the petitioners has contended that the main accused Sunil @ Monu, who had allegedly kidnapped and raped Jyoti, has actually intended to marry Joyti and they had filed an application for protection before the High Court. So far as the petitioners are concerned, they have unnecessarily been arrayed as accused. It is further contended that without application of judicious mind and without appreciating the material, placed on record, the trial court has opted to frame charges against the petitioneRs. Reliance has been placed on Dilawar Balu Kurane vs State of Maharashtra, 2002(1) RCR (Cr.) 451 and State of Maharashtra and others vs Som Nath Thapa and others, 1996 SCC (Cri) 820, wherein law has been laid down to the effect that the court framing charges should apply its judicial mind to the material available on the record and the court has to arrive at a conclusion that prima facie a case is made out against the accused. The material on the record must satisfy the court framing charges that the commission of offence by the accused is probable. The other circumstance pointed out by the counsel for the petitioners is that an application dated 14.7.2011 for remand of Monu was filed by the prosecution agency before the trial court but there was absolutely no reference made to the part played by the petitioners, whereas the prosecution agency had allegedly recorded the statement u/s 161 Cr.P.C. on 4.7.2011 of Rajesh Kumar. It has been contended that Rajesh Kumar is a convenient witness, who has been introduced by the prosecution agency as a PW because he is inimical towards the petitioneRs. Counsel further submits that since the petitioners had earlier approached the High Court for a direction to take action against the complainant, they have been falsely implicated in the case.

(2.) I have heard learned counsel for the petitioners and carefully gone through the facts and circumstances of this case. The allegation of the petitioners for having abetted the offence by main accused Sunil @ Monu, is based upon the statement of one Rajesh Kumar recorded u/s 161 Cr.P.C., who has stated that on 10.1.2011, Kaushalaya, wife of Krishan Kumar and main accused Sonu came in the baithak and sat with the PW. Kaushalya had remarked that Monu had become bad with Jyoti daughter of Ramesh and some days back, prior to the marriage of Monu, Ramesh had hurled abuses against Kauhalya and her daughters and assaulted them. On that Ram Kumar, Krishan and Neeraj stated that this had rightly happened as Ramesh used to pose himself as big Pardhan/ Chaudhary. and said Ramesh had to be maligned and was to be insulted. As per his statement Monu, was asked to run away with Jyoti, daughter of Ramesh for some days.

(3.) I have considered the statement of Rajesh. A person is said to abet the doing of a thing, who instigates any person to do that thing or intentionally aids, by any act or illegal omission, the doing of that thing. Section 109 IPC prescribes punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. It will be pre -mature at this stage to enter into the niceties of the trial and to appreciate the strength of the statement of Rajesh Kumar to find out whether the said statement can be said to be a statement, which would fall within the ambit of Section 109 IPC. Whether the words said by Kaushalya and other petitioners tantamount to instigating the main accused Manu to do the acts, alleged against him. No doubt the statement of Rajesh Kumar appears to be a weak evidence but on the basis of the said weak evidence the charges framed against the petitioners u/s 109 IPC, cannot be quashed. Striking a balance between the right of liberty of the petitioners and the right of the prosecution agency to prosecute the accused -persons for any specific offence falling under IPC, the only just order, which can be obtained by the petitioners is that they will face the trial but a direction is issued that in case they move an application for exemption from personal appearance during trial, it will be allowed by the trial court subject to any conditions imposed by the trial court. Since the identity of the petitioners is not disputed, it will be open to the trial court to record the evidence as per the provisions of Section 273 Cr.P.C. in presence of the counsel, after recording the consent of the petitioners to the effect that the statements of the witnesses can be recorded in presence of their counsel.