Application under Section 378(4) Cr.P.C. to recall acquittal of respondents No.2 to 4 in rape/abduction case was dismissed for non-prosecution due to repeated unrepresented appearances and inordinate delay spanning over a decade.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
218 CRM-A-5-MA-2012(O&M) Date of order: 12.11.2024
Pale Ram
…..Applicant(s)
Vs.
State of Haryana & Others
…..Respondent(s)
CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA
Present:Mr. Sanjeev Sharma, Adv o cate for the applicant.
Ms. Deep Shikha Chauha n , AAG Haryana. Mr. J.S. Saneta, Advocate for respondents No.3 an d 4.
Nidhi Gupta, J.
Present application und e r Section 378(4) Cr.P.C. is file d seeking leav e to file appeal against the jud g ment dated 21.10.2011 passed by the le a rned Additional Sessions J u dge, Panipat, whereby th e accused/res p ondents No.2 to 4 herein ha v e been acquitted in case FI R No.66 dated 22.03.2009 registered under S e ctions 366, 376, 120-B and 50 6 IPC at Police Station Matlauda, District Pani p at.
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“Perusal of the order sheets sh o ws that the matter pertains t o the year 2012 and notice of m otion in the present case wa s issued by a coordinate Bench of this Court vide order date d 13.08.2015. Thereafter, the m a tter was listed for hearing 11 times, but the same was un-ne c essarily being adjourned eithe r on the request of learned counsel for the applicant or o n account of non-appearance on behalf of the applicant. For th e last 03 dates i.e. 02.05.2022, 0 1.11.2022 and 11.09.2023, th e applicant had gone un-represe n ted.
Today, for the 4th time the applicant has gone un-represented, despite the case having been called twice. Therefore, it ca n safely be presumed that the ap p licant or his counsel is no mor e interested in pursuing the p resent criminal miscellaneou s application.
In view of the above, the p resent criminal miscellaneou s application is dismissed for non - prosecution.”
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commission of offences under Sections 366 , 376, 120-B and 506 IPC, in th e interest of j u stice.
the case file in great detail.
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had left the house without telling anybo d y on the intervening night o f 16/17.03.20 0 9. It was further stated in the c omplaint dated 18.3.2009 tha t the prosecu t rix had taken along with her f our suits, Rs.1,800/-, a pair o f shoes, and m obile phone. Thereafter, a s u pplementary statement dated 22.03.2009 (Ex.P2) was recorded by the ap p licant to the effect that his 17 - year-old daughter/the prosecutrix had bee n enticed and abducted by mai n accused Roh t ash and respondents No.2 to 4 herein. On the basis of this and FIR Ex.P3 was registered under sections 363 and 366 IPC.
“On 16.3.2009 Rekha had called me in her house for th e purpose of cutting of suit, as I am adept with the work o f sewing. I reached at the house of Rekha. Rohtash and Parvee n
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are brothers as their mothers a r e real sisters and Rekha is thei r sister. I cut the suit. Thereafter, Tani Devi - mother of Rekh a served tea to me. After co n suming tea, I started feelin g giddiness. I left my bag, contai n ing mobile phone and money i n their house and returned back to my house and slept. When, I came out from my house in t h e mid night at 12.00 A.M. fo r urinating, then Rekha, her Ma m i along with accused Rohtas h and Parveen were s tanding wi t h a car. They caught hold m e and gagged my mouth. Rajind e r and Sonu showed knife to m e and made me sit in the car. Su b hash was driving the car. The y left me at Pundri. From Pundri, accused - Rohtash and Parvee n took me at Pehowa on bike. T hen they took me to anothe r village whose name I do not r e member, and then at Ambala. There, they took a room throu g h Pardeep and took me in tha t room. I tried to contact at my home, but these accused brok e the sim' and threatened me o f dire consequences by showin g knife. Then they took me at S ambha, in a room. Rohtash - accused raped me against my c onsent. Parveen - accused ha d not committed any act with me, but only helped accuse d Rohtash, in kidnapping me. Rohtash - accused had als o committed rape upon me at A m bala. I was not allowed to g o back home, but repeatedly thr e atened of dire consequences o f being killed. Then my fathe r became aware of all thes e happenings and took me from J a mmu Kashmir. I remained wit h these accused for 3 months a nd during this periodRohtas h repeatedly raped me”.
11. Vide order dated 20.1 0 .2009Case was committed t o
trial. Vide order of charge dated 28.11.2009, Respondent No.2 was charge d under Secti o ns 363, 120-B and 506 IPC; w h ereas respondents No.3 and 4
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were charg e d under Section 120-B IPC. T h e main accused Rohtash wa s charged und e r Sections 363, 506, 366 and 3 7 6 IPC.
12. The prosecutrix in her t e stimony as PW1 reiterated he r allegations to the effect that on the inter v ening night of 16/17.03.2009 , when she g o t up to urinate, the four accused persons were present outsid e her house. A car was also parked there. Respondent No.3 caught hold th e prosecutrix a nd when she tried to raise a larm, her mouth was gagged . Respondent No.4 had pointed a knife to her and made her sit in the ca r which was b eing driven by one Subhash. A s per the prosecutrix, she wa s then taken to Pundri by the accused pe r sons whereafter Rohtash an d respondent N o.2 took her on motorcycle t o Pehowa and then to Ambala , where she w as kept in a room. It has been further deposed by th e prosecutrix t hat when she tried to contact her family members on phone, the accused Rohtash and respondent No.2 d amaged her sim and pointed a knife at her a nd threatened to kill her. Ther e after, Rohtash committed rap e upon her. It has to be noted that at no st a ge has the prosecutrix allege d that respon d ent No.2 had committed rape u pon her.
13. It has further been dep o sed that when the prosecutri x
tried to go b ack home, the accused threat e ned to kill her. In this manner , they kept h e r for three months till she was recovered on 16.06.2009 fro m the Railway S tation.
14. At this stage, it may be p o inted out that the testimony o f the prosecu t rix is at variance with the fi r st complaint dated 18.3.200 9
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lodged by the applicant wherein he has sta t ed that the prosecutrix had lef t the house with four suits, ₹1800/–, a pair o f shoes, and mobile phone.Th e said statem e nt of the applicant would indic a te that the prosecutrix had lef t the house in t entionally and willingly with th e accused persons.
15. Furthermore, as alread y noticed above, as per th e testimony o f Dr. Sandhya Gupta PW4, wh o had medico-legally examine d the prosecu t rix, it has been deposed that t he prosecutrix was brought t o her on 16. 0 6.2009 with the history of a ssault for three months. Yet , surprisingly, there were no injury marks on the body of the prosecutrix o r her private p arts; and Hymen was ruptured a nd healed.
16. The accused, responde n ts No.2 to 4 herein in thei r respective t e stimonies have denied the all e gations against them and hav e asserted tha t they have been falsely implica t ed in the present matter. It ha s been depos e d by the accused persons that R ohtash and prosecutrix were i n love with ea c h other. Admittedly, the pros e cutrix was major at the time o f incident; sh e had left the house with her o w n sweet will; she used to writ e love letters t o Rohtash and talked to him r e gularly from her mobile phone. It was reiter a ted that the accused/respond e nts No.2 to 4 had not aided o r assisted the prosecutrix in leaving her hous e , or in any other manner.
17. On the basis of the e ntire oral and documentar y evidence pr o duced before it, the learned t r ial Court returned the finding s that prosec u trix is major on the date of i n cident. The learned trial Cour t further reit e rated that there was a love a f fair between Rohtash and th e
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prosecutrix w hich was “ deep and intense ”. I n this regard, learned trial Cour t referred to t he letter (Mark A) written by the prosecutrix to Rohtash; a s also the 85 l o ng-duration phone calls betw e en Rohtash and the prosecutri x for the period 01.03.2009 to 16.03.2009 (Ex.DD); and the FSL report (Ex.CA ) dated 16.09 . 2011 in respect of the said p h one calls. It was further foun d that the pr o secutrix had accompanied the two accused i.e. Rohtash an d Parveen (re s pondent No.2) of her own wi s h and accord. It was observe d that the pr o secutrix being major “…has e very ability to understand th e ground real i ties and to realize the good o r bad upon her. Had she bee n forcibly tak e n away by the accused, fro m her lawful guardianship, sh e would have r aised hue and cry or sounded h e r miseries in any form…”.
18. Learned trial Court fur t her found that there was n o evidence br o ught on record by the prose c utrix to remotely indicate tha t her mouth w as gagged by the accused at the time when she was picked u p in the car or any medical evidence to show t hat after consuming the cup o f tea, allegedl y given to her by respondent N o .3, the prosecutrix had lost he r sense of bal a nce or had become giddy. It w as in this background that th e respondents No.2 to 4 were acquitted v ide the impugned judgment. However, R o htash, the main accused, was convicted by the learned tria l Court in vi e w of the statement of the prosecutrix that Rohtash ha d committed r ape upon her forcibly and ke e ping in mind the fact that th e “… accused R ohtash has not denied or uttered a word, through hi s statement u nder section 313 Cr.P.C. tha t no sexual assault has bee n committed by him…”. Rohtash was further sentenced to underg o
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imprisonme n t for a period of three years a nd to pay fine of ₹2000/– fo r commission of offence under section 36 6 IPCand in default to furthe r undergo rig o rous imprisonment for three m onths; and to undergo rigorou s imprisonme n t for seven years and to pay f i ne of ₹5,000/– for commissio n of offence u n der section 376 IPC and in def a ult to further undergo rigorou s imprisonme n t for six months, both sentenc e s to run concurrently.
19. The respondents no.2 to 4, however, were acquitted fo r the reasons noted here in above. I fin d no error whatsoever in th e reasoning a n d findings of the learned trial court. Nothing whatsoever ha s been shown to this Court to remotely p o int to the involvement of th e respondents No.2 to 4. It is to be borne in m ind that in the initial statemen t by the appli c ant/complainant on 18.03.200 9 , none of the accused person s were named and it was admitted by the ap p licant that the prosecutrix wa s major; it is o nly in his subsequent statement dated 22.03.2009 that th e present acc u sed have been named. It is als o relevant to note that after th e prosecutrix h ad remained in the company o f Rohtash and respondent No. 2 for three m o nths, she made her statement u/s 164 Cr.P.C. implicating th e accused per s ons. However, no evidence ha s been produced to substantiat e the bald alle g ations of the complainant and t he prosecutrix.
20. In view of the above, pre s ent application is dismissed. 21. Pending application(s) if a ny also stand(s) disposed of.
12.11.2024 (Nidhi Gupta) Sunena Judge Whether speaking/reasoned Yes/No Whether reportable Yes/No
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2 issues framed by the court
Whether the criminal miscellaneous application under Section 378(4) Cr.P.C. deserves to be allowed given the long delay in pursuing it.
Whether the learned trial court committed any error in acquitting respondents No.2 to 4 based on lack of evidence.
Pale Ram
State of Haryana
Nidhi Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
