TMI Blog2010 (12) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... 376 Indian Penal Code Seven years and to pay fine of Rs. 1500/-or in default R.I. For one year. 2. This case was registered on the statement made by the complainant, Phool Chand, PW10, father of the prosecutrix, who stated that he has four daughters and one son. His elder daughter is married at Padala, younger to her is married at Tohana. His son Yash Pal is younger to her and next to him is prosecutrix @ Rinku, aged 15= years, is youngest among daughters. On 27.7.1997 he and his wife had gone in Jagrata. The prosecutrix, his other younger daughter Pooja, PW8, and his son Yashpal were present at the house. When they came back in the morning at about 6/7 a.m. from Jagran, his son Yash Pal told them that the prosecutrix was not prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate committed the case to the Court of Session for trial. 6. Charge under Sections 363/366/506/34 Indian Penal Code was framed against Crl. Appeal No. 788 SB of 2000 3, Rajinder Kumar and Raju whereas charge under Section 376 Indian Penal Code was framed against Rajinder Kumar. Further a charge under Section 376(2)(g) Indian Penal Code was framed against Rajesh and Kallu @ Ajay. All the accused pleaded not guilty and claimed trial. 7. In order to prove its case the prosecution examined the prosecutrix as PW7, her sister Ms. Pooja (she was declared hostile) as PW8, and her father Phool Chand PW10. Shri Mewa Singh, Judicial Magistrate, 1st Class, Karnal who recorded statement under Section 164 Code of Criminal Procedure on 10.8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellants further submits that delay has been used to twist the facts so as to fit in the case of the prosecution. There is No. explanation for the delay in lodging FIR. 12. Learned Counsel for the Appellant has further submitted that in the statement under Section 164 Code of Criminal Procedure, the prosecutrix did not name the Appellant, the person, who committed rape upon her. He submits in fact the allegations are against Rajesh, Kalu and Pawan. 13. From the reading of the statement of the prosecutrix, it is made out that prosecutrix was a consenting party, who accompanied the Appellant with consent and free will. The mother of the prosecutrix who could be the best witness regarding the age of the prosecutrix has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reover, the prosecutrix had been going through one place to another place by using public transport. She came across a number of people at Bus Stands and she stayed with his sister's home at Delhi. There is No. evidence that she had at any point of time raised any alarm or shared her being kidnapping by the Appellant. There is nothing on record to suggest that she made any effort to escape from the custody of the Appellant. Therefore, it appears that the prosecutrix left the house after deliberation with accused Rajinder Kumar alias Pappi. 18. Even as per the statement of prosecutrix under Section 164 Code of Criminal Procedure Ex. PQ the allegation of rape were attributed to Rajesh, Kalu and Pawan. She has specifically mentioned i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 164 Code of Criminal Procedure she stated that Raju and another person enticed her out of her house on 27.7.1997 and the name of second person is not known to her which clearly seems to be on after thought only for the reason to rope Raju. Further for the first time in court she alleged that Raju and Pawan (P.O.) had committed rape upon her. 22. It appears that the sudden change in version of the prosecutrix is most probably due to the treatment she was forced to face at her own house. As per her statements under Section 164 Code of Criminal Procedure after she was raped by three persons she met Raj Kumar. As per the affidavit Ex. DC which is produced in defence, signed and sworn by prosecutrix she has stated that she is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Indian Penal Code is made out because the girl was about 18 years and had ran way from her house on her own. With Regard to Section 376 Indian Penal Code, it is evident from her statement under Section 164 Code of Criminal Procedure that Raju was not the person who raped her. 25. Another point which makes the case fishy is the testimony of the Prem Kumar, PW4, who is drafts man and has said to have prepared the site plan at the pointing out of prosecutrix. He has deposed that he has seen the site plan. However, No. name of the owner or any home number has been mentioned, which shows that the site plan was prepared at the instructions of the I.O. only, not by actually visiting the site. 26. Testimony of the Miss Pooja, PW8, sister ..... X X X X Extracts X X X X X X X X Extracts X X X X
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