BAHADUR ALI Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The Petitioner-private complainant, Bahadur Ali, has preferred this revision against the judgment dated 28.2.2005 passed by Additional Sessions Judge (Ad hoc) Fast Track Court, Sangrur, vide which he acquitted the accused-Respondents No. 2 to 5 of the offences under Sections 366-A and 376 Indian Penal Code. The facts, in brief, are that on 4.6.2003, Bahadur Ali, complainant, PW-4, made his statement, Ex. P.4, before Parminder Singh ASI. He narrated therein that the prosecutrix (name not being disclosed in the judgment) who is his sister and was aged about 17 years, had been working as a part time maidservant in the house of Mohd Akhtar @ Gora, accused and had been going to his house from 6-00 a.m. to 10-00 a.m. and then from 4-00 p.m. to 7-00 p.m. and had been helping Shakeela-accused in cooking the meals. Rakesh Kumar @ Kala-accused, was working as a domestic servant in the house of those accused. On 2.6.2003, the prosecutrix had gone to the house of the accused at 6-00 a.m. and thereafter never came back. When he went to the house of the accused at about 11-00 a.m., Mohd. Jameel @ Daramet him at that place and when he enquired about the prosecutrix, that accused failed to give any satisfactory reply. He kept on searching for the prosecutrix and on 4.6.2003, his neighbourer Mohd. Shakil, PW-5, told him that on 2.6.2003, he was present in bus stand of Malerkotla forgoing to Ludhiana when all the accused came there with the prosecutrix at about 7-00 a.m. and made her to board the bus along with Rakesh Kumar @ Kala. Thereafter, he entertained a doubt that the prosecutrix had been kidnapped by the accused for committing some illegal act. On the basis of that statement of the complainant, FIR, Ex. P.26, was recorded against the accused under Sections 363, 366A/ 34 Indian Penal Code. On 5.6.2003, the prosecutrix was recovered from the house of Rakesh Kumar @ Kala, who was duly identified by the complainant. Memo Ex. P.5 to that effect was prepared by the ASI. The prosecutrix was produced before the Medical Officer, Civil Hospital, Malerkotla, by the ASI along with application, Ex. P.1, for her medical examination. Her medical examination was conducted by Dr. Ritu Sethi, PW-6. She took the vaginal swabs, which were duly sealed and were handed over to the police. The accused was produced before the Medical Officer for her medical examination and the same was conducted by Dr. Gurvinder Singh, PW-7, who found him fit for performing sexual intercourse. On 7.6.2003, the prosecutrix was produced before Sh. Rakesh Kumar, 'SDJM, Phul, who recorded her statement under Section 164 Code of Criminal Procedure. She narrated therein that on 2.6.2003, she was asked by Shakeela to perform marriage with Mohammedan boy, to which she refused. Then she was taken by all the accused on a scooter to the bus stand where Shakeela gave her Rs. 2000/- and made her to sit in the bus in which Rakesh Kumar @ Kala was already sitting, who took her to Kalka to the house of the friend of his sister Sheela, where he committed rape on her. She had a talk with Shakeela about the performing of that forcible sexual intercourse by Kala, from the PCO, on 3.6.2003 and thereafter, all the three other accused came there in a car make Maruti and told her that they would perform her court marriage with that boy and under fear, she accompanied them. She was brought to the house of that accused at Dhuri, where he committed forcible sexual intercourse with her twice and she was again raped on 4.6.2003 and was recovered from that place on 5.6.2003 by the police. About the date of birth of the prosecutrix, the Certificate, Ex. P.2, was collected from is lamia Girls Senior Secondary School, Malerkotla. On 8.6.2003, the accused was interrogated by the ASI, upon which he made a disclosure statement, Ex. P.13, that he had kept concealed the apparels worn by the prosecutrix on 2.6.2003 in the wooden almirah, lying in the house of the friend of his sister, after putting the same in a polythene bag, about which only he had the knowledge and could get the same recovered from that place. In pursuance of that disclosure statement, the accused got recovered the wearing apparels from the said place, which were converted into a parcel and the same was sealed by the ASI with his seal ''PS''. The sealed parcel containing the vaginal swabs and those wearing apparels, were sent to the Chemical Examiner through Sudham Singh, Constable, PW-11, and were delivered at that place with seals intact on 22.8.2003. After analysis, it was reported by the Chemical Examiner, vide his report, Ex. P.11, that the semen was detected only on the salwar and on no other article. During the investigation, Shakeela, Mohd. Akhtar and Mohd. Jamil @ Dara were found to be innocent, whereas the challan was presented against Rakesh Kumar @ Kala before SDJM, Malerkotla, who committed the same to the Court of Session on the ground that the accused committed offences punishable under Sections 363, 366A and 376 Indian Penal Code. From the documents sent along with the police report and after hearing Public Prosecutor for the State and the accused in persons, the Additional Sessions Judge found sufficient grounds for presuming that the accused committed offences punishable under Sections 366-A and 376 Indian Penal Code. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of this accused, prosecution examined Dr. Ritu Sethi, PW-1, Dr. Gurvinder Singh, PW-2, Mohd,. Jamila, PW-3, Amrit Singh, Draftman, PW-4 and the prosecutrix, PW-5. Thereafter the Public Prosecutor moved an application under Section 319 Code of Criminal Procedure, for summoning the other accused as additional accused. That application was allowed, vide order dated 20.2.2004 and the other accused were summoned to stand their trial along with Rakesh kumar @ Kala. accused.

(2.) On appearance of these accused in the court, mandatory provisions of Section 207 Code of Criminal Procedure. were complied with. From the documents sent along with the police report, the Additional Sessions Judge found sufficient grounds for presuming that all the accused committed offences punishable under Sections 366A and 376 Indian Penal Code. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove the guilt of the accused, prosecution examined the prosecutrix, PW-1. Naheed Jamal, Principal, Islamia Girls Sr. Section School, Malerkotla, Amrik Singh, Draftsman, PW-3, Bahadur Ali, PW-4, Mohd. Shakil, PW-5, Dr. Ritu Sethi, PW-6, Dr. Gurwinder Singh, PW-7, Nazeer Mohd, PW-8, Gurmaj Singh, PW-9, Rakesh Kumar, SDJM. Phul, PW-10 and Sudham Singh, PW-11.

(3.) After the close of the prosecution evidence the accused were examined and their statements were recorded under Section 313 Code of Criminal Procedure. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their false implication. It was stated by Rakesh Kumar @ Kala that the prosecutrix was major and had love affair with him but refused to marry him under the pressure of her parents and brothers, being from different religion. She had accompanied him with her free will and false story was concocted by her family members in connivance with the police. It was stated by the other accused that they had been running a factory of manufacturing almirahs etc. and on that account, the complainant party had been moving a number of applications to the authorities for the removal of that factory on the ground that the same created nuisance and spread dirt. The prosecutrix eloped with Rakesh Kumar @ Kala and the complainant party found an occasion to falsely implicate them. Even during the investigation, they were found to be innocent. The accused were called upon to enter on their defence. They examined Mohd. Nazir, DW-1, Mohd. Ismail, DW-2 and Gulam Mohd. Gama, DW-3 in their defence evidence.