IMRAN Vs. STATE OF RAJ

JUDGEMENT

(1.) BOTH these petitions challenge the order dated 23.7.2012 passed by the Additional Sessions Judge No.2, Deeg, District Bharatpur whereby the learned Judge has issued process under Section 319 Cr.P.C. against the petitioners, Imran and Jalish Khan @ Jalish Pradhan, and others for offence under Section 376 IPC. Hence, both these petitions are being decided by this common order.

(2.) BRIEFLY stated the facts of the case are that on 8.12.2010, one Nanga submitted a criminal complaint before the Judicial Magistrate, Kaman wherein he claimed that his niece, the prosecutrix in this case, aged about 16 years, was staying with him for the last two years. On 20.10.2010 between 4.00 to 5.00 PM, his niece and her aunt, Kamla, were coming back home after cutting some wood. As soon as they reached near B.K. Haryana Crusher Machine, they saw a white colour Marshal Car standing there. Nisar S/o. Ayyub, Maujuda S/o. Mutthhar, Nihal S/o. Dulla, Rahees S/o. Jallu, residents of Village Laharwadi, P.S. Punhana, District Mewat Nooh, Haryana, alongwith Islamuddin S/o. Saddiq, Chain son of unknown, were standing near the Car. These persons lifted his niece and threw her into the Car. When Kamla raised a hue and cry, Roopa and Mehmood rushed to their rescue. However, they could not stop the accused persons from escaping from the place. Kamla came back home and informed the family members. He and his family members went to the elders of the village in order to resolve the case. The elder members told him that since Israil's family members live in village Laharwadi, they will contact him. The elder members also asked the complainant not to file any report with the police. Israil was asked to contact the husband of the Sarpanch of Village Laharwadi, Safi. Safi informed them that the accused Nisar, Maujuda, Nihal, Rahees were not in the village. Safi also promised that he will cooperate with them and will try to help them out. Subsequently, Safi called the elder members of the complainant's village, namely Mohammad Zahoor Khan, Ex-MLA, Kaman, Abdul Rahman and Razzak, the former Sarpanch. When they went to the Panchayat, the persons from Village Laharwadi such as, Jahaj Khan, Sheikh, Itmal, Majeed, Saleem, Vaheed, Hastu, Gaffur and Bhure Khan alongwith family members of Nisar and Maujuda were present at the Panchayat. These persons told the complainant and his family members that his niece is with them. But his niece is with the accused persons who are not in the village. They also promised him that they will try their level best to have the girl returned. They asked for 5-10 days time to do the needful. However, even subsequently these persons kept on delaying the matter unnecessarily. Again on 6.12.2010 the complainant was called to Village Laharwadi. Initially these persons promised to return the girl, but after waiting for two hours, they refused to do so. The complainant and his family members were informed that the girl has changed her religion, and has become a Muslim. Therefore, they will not return the girl to them. Thus, on 7.12.2010, the complainant went to the Police Station Kaman for lodging a report. But the police refused to registered the FIR. Therefore, he has filed the criminal complaint before the learned Magistrate.

(3.) DURING the trial, after recording testimony of five witnesses, namely Nanga (PW.1), Mohd. Zahoor (PW.2), Roopa (PW.3), the prosecutrix (PW.4), and Abdul Rahman (PW.5), the prosecution submitted an application under Section 319 Cr.P.C. for taking cognizance against those who have been named by the prosecutrix, and yet have not been charge-sheeted by the police. By order dated 23.7.2012, the learned Judge issued process against Islamuddin, Maujuda, Chain, Raheesh and Nihal for offences under Sections 366, 368, 376 and 506 IPC, and issued process against Yakub, Imran, Anees, Jalish Pradhan and Aazam for offence under Section 376 IPC. He has also directed that since there is direction of the High Court that the trial pending against Nisar be completed within a period of two months, therefore a new case should be registered against the aforementioned persons against whom process has been issued. Hence, this petition before this court. Mr. Biri Singh Sinsinwar, the learned senior counsel for the petitioner, Jalish Pradhan, has raised the following contentions before this court: firstly, the petitioner, Jalish Pradhan, happens to be the husband of the sitting MLA, Smt. Zahida Khan. Therefore, he is being falsely implicated in the present case due to political rivalry. Secondly, falsity of the case is apparent from the fact that his name has not been mentioned in the FIR. Thirdly, the incident is alleged to have occurred on 20.10.2010, yet the complaint was not filed till 8.12.2010 i.e. after an inordinate delay of more than one and a half months. The inordinate delay casts a doubt about the veracity of the story narrated by the prosecutrix. Fourthly, that the prosecutrix had already married Nisar. This is apparent from a petition filed by Nisar and by the prosecutrix before the Punjab & Haryana High Court wherein they prayed for protection against the complainant in the present case. Fifthly, the prosecutrix is an unreliable witness. For, in her cross-examination, she has denied the fact that she ever filed a petition before the Punjab & Haryana High Court. Lastly, there is no likelihood that the petitioner would be convicted on the basis of testimony of such an untrustworthy witness. Therefore, the impugned order deserves to be quashed and set aside.