H.K.JUSTA Vs. MANOJ CHAUHAN

JUDGEMENT

(1.) SINCE both these petitions under Section 438 of the Code of Criminal Procedure (hereinafter referred to as the Code) arise out of the same FIR No. 53/2003, dated 1.7.2003, under Sections 363, 366 -A, 376, 342, 376/511, 506/34 IPC, registered at Police Station, Rajgarh, therefore, are being disposed of by this common order.

(2.) THE case of the prosecution against the petitioner -accused H.K. Justa and Manoj Chauhan (hereinafter referred to as A -1 and A -2 respectively) is that two girls, cousin sisters by relation, (hereinafter referred to as M and R), residents of village Bakhota, were studying in plus one in a school at Rajgarh. Date of birth of M is 29.4.1987 and that of R is 20.9.1986. On. 28.6.2003, at 8 A.M., they left for their school but did not return home in the evening. Father of R thought that they might have gone to the house of some relative. The next day was Sunday. On 30.6.2003, one Sulakshna, a class mate of M and R informed the father of R, the informant in the case, that M and R had not attended the school on 20.6.2003. Their family members carried out a search for them and came to know that both of them were at the residence of A -1. Informant searched the girls at the address of A -1 on 1.7.2003 but his residential premises were found locked. The matter was thereafter reported by the father of R to the police, where FIR initially under Sections 363 and 366 -A IPC was recorded and the investigation in the matter followed. On investigation so far carried out, it was found that A -1 had gone to the house of uncle of M, namely, Balbir Singh, and continued to visit his house for some time and had also been contacting his family members on telephone. A -1 had told Balbir Singh that he had divorced his wife and wanted to marry a girl of younger age. This desire A -1 had conveyed to M also telephonically and had been alluring her to marry him, and that he would give her ornaments and a vehicle to facilitate her studies. He further assured her that he would arrange employment for her and R. He invited the to come to Shimla. On 28.6.2003, as per the instructions given by A -1, M and R1, instead of going to the school, went to a place called Pabyana where A -1, A -2 and Prem Dutt Pandit, a co -accused in the case, alongwith a Maruti Car No. HP -03 -1006 were present. A -1 inquired from the girls whether they had informed their family members about their programs and the girls replied in the negative. Thereafter, in the aforesaid car driven by A -2 they were brought to the resistance of A -1 at Sanjauli. On the night intervening 28th and 29th June, 2003, A -1 committed rape on M. A -2 attempted to commit rape on R1, but because of resistance by her, could not succeed in committing sexual intercourse with her. On the following morning, A -2 and Prem Dutt left the house of A -1. A -2, who had received information about the death of his father, told the girls that establishes were available in the house and they could prepare whatever they wanted to eat. He further asked them that in case there is any telephonic call, they would not only the number of the caller and not attend the call and if they attempted to do anything contrary, that would not 6e in their interest. Thereafter, A -1 left to his home village after locking his residential premises thereby confining W and R in his residence. M, and R remained confined in the residential premises of A -1 till 2.7.2003, when at about 11.30" a.m., A -1 took them to Ridge, the Mall, Shimla. A -2 was also present there. A -1 told M and R that if anyone made queries from them, they would tell hat their parents did not provide them food and beat them and not it divulge to anyone that he had brought them to Shimla. A -1 wanted to prepare affidavits of M and R about this reversion but when it transpired that each one of them was of 16 years of age, the person arranged for typing of the affidavits refused to prepare the affidavits. A -1 then took both the girls to Additional Superintendence of Police, Shimla and informed him that both the girls had run away from their houses because their parents did not provide them food and used to beat them. Saying that he had to carry the mortal remains of his father to Haridwar, A -1 slipped away. Additional Superintendent of Police, believing the version of A -1 entrusted the girls to LJHC Veena. It transpired that case about the kidnapping of these girls was already registered at Police Station, Rajgarh. M and R were thereafter got medically examined in Ripon Hospital, Shimla. On medical examination of M, signs of sexual activities were seen on her person. However, no mark of injury or violence was noticed. In case of R, no evidence of sexual activity was found. In the meanwhile, A -1 moved the present application in which ad interim anticipatory bail was granted to him vide order 4.7.2003, with direction to join investigation as and when required by the investigating officer. Armed with the order, A -1 went to the concerned police station and he was associated in the investigation. As per the version of the investigating agency, he did not cooperate in the investigation on 5.7.2003 and refused even to get himself medically examined despite having been repeatedly asked by the police for such examination and complained of heart pain. He was permitted to go with direction to join investigation on 6.7.2003 at 9 a.m. However, A -1 thereafter did not join investigation. A -2 is yet to join investigation. The car used in the commission of the offence is yet to be recovered and co -accused Prem Dutt is yet not traceable. Commission of more offences having been found, more penal provisions including 376 and 376/511 IPC have been added.

(3.) A -2, in his application, has averred that from the press reports, he has come to know that he is being involved in the commission of offences under Sections 363 and 366 IPC for helping A -1 in kidnapping the girls and apprehends his arrest. It is claimed that accusations against him are false and he has not committed any offence as alleged in a section of the press.