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TMI Blog2014 (6) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... to rukka, when she raised alarm PW-1 Ved Parkash and PW-2 Rajinder Kumar had come on the spot. However, in her statement, she has stated that she came out and went to the house of Ved Paraksh and stayed there over night with him. PW-11 Gopal Dutt has not supported the prosecution case at all. In fact, PW-1 Ved Parkash and PW-2 Rajinder Kumar have been declared hostile. The only conclusion, which can be drawn from the evidence of the prosecution, is that the sexual act was consensual. The prosecutrix was 32 years of age having two children. There are material contradictions, inconsistencies and embellishments in the statements of the prosecution witnesses. The prosecution has failed to prove its case against the accused. The prosecution has failed to prove the charge under section 342 of the Indian Penal Code. It is duly proved from the statement of PW-2 Rajinder Kumar that prosecutrix was not wrongfully confined. She had an opportunity to raise alarm when the landlord s daughter Tara Devi had come and more particularly when PW-2 Rajinder Kumar was residing in the adjoining room. In order to prove charge under section 452 of the Indian Penal Code, the prosecution is required t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths and to pay a fine of ₹ 1,000/- each and in default of payment of fine to further undergo imprisonment for a period of one month, under section 342 read with section 34 of the Indian Penal Code. Accused were also sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of ₹ 3,000/- each and in default of payment of fine to undergo further imprisonment for a period of six months under section 506 read with section 34 of Indian Penal Code. All the sentences were ordered to run concurrently. 2. Case of the prosecution, in a nutshell, is that on 29.2.2008, at about 10.30 P.M, accused came on the front door of the room of the prosecutrix. The prosecutrix asked them as to why they were standing there. Accused told her that they wanted to have sex with her. Accused entered the room and when the prosecutrix threatened to raise alarm, one of the accused gagged her mouth and the other pressed her throat. Accused bolted the door from inside and threatened the prosecutrix that in case she raised alarm, she would be killed. One of the accused committed rape upon the prosecutrix on the carpet and the other accused took the prosecutrix to her bedro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s committed rape on her. He went to the spot where none was present. Other tenants had fled away. Prosecutrix revealed the names of accused, who committed rape on her as Tilak Raj and Ram Singh. Prosecutrix told him that she was apprehending threat to her life from the accused and he should not leave her room. Rajinder Kumar did not disclose anything on the spot. He was declared hostile. He was cross-examined by the learned Public Prosecutor. He has admitted that prosecutrix was crying when she came to his house. Her house was also in the same building. He has also admitted that he alongwith two other villagers went to the spot. He has denied the suggestion that Rajinder Kumar was also present on the spot at that time. He has also denied the suggestion that Rajinder Kumar disclosed the names of accused as Tilak Raj and Ram Singh. Volunteered that Rajinder Kumar told the names of accused on the next day to the police. He did not recognize the clothes which were seized by the police. His statement was recorded by the police at Police Post, Kala Amb. He has denied the suggestion that he gave statement to the police that Rajinder Kumar has disclosed the names of accused as Ram Singh an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.15 P.M. He heard the cries of prosecutrix after one hour. Thereafter, prosecutrix came to his room. She disclosed nothing to him and thereafter left to the room of Ved Parkash. A door from his room goes to the room of prosecutrix. 9. PW-3 Vidya Devi has testified that she was residing as a tenant in the house of Ved Parkash during the year 2008. She was having two rooms under her tenancy. Adjoining room was occupied by Rajinder Kumar. On 29.2.2008, at about 10.30 P.M., she was going to sleep after taking her meal. Two boys came in front of door of her house. She asked them as to why they were standing there. They appeared to be drunk. They both asked her name. She replied that they have no concern with her name and asked them to leave. The boys told that they wanted to have sex with her. They entered her room and when she threatened to raise alarm, one of them gagged her mouth and another pressed her throat. Accused bolted the door from inside and threatened her that in case she raised alarm they would kill her with knife. She called Tara. She cried but the accused threatened her to say nothing has happened. One of them first committed rape upon her on the carpet. Second boy t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. PW-11 Gopal Dutt has deposed that he was residing in village Johro in a rented room. Nothing has happened in his presence. He was declared hostile. In his cross-examination, he has deposed that he did not know Rajinder Kumar. He did not know as to whether Rajinder Kumar and Man Mohan Singh were living in a rented room at Trilokpur. He took the dinner with Man Mohan Singh at Trilokpur. He has denied that at about 11.00 P.M. he heard the cries of a lady and they both got up and came out of the room. He has denied that Vidya Devi raised cries saying bachao bachao . He did not know as to whether Rajinder Kumar and Ved Parkash also reached on the spot. He did not know that the boys were identified by Rajinder Kumar and disclosed their name as Tilak Raj and Ram Singh. Volunteered that in the morning, Man Mohan Singh told him that a lady has been raped. Man Mohan Singh met him in the factory. 14. PW Tara Devi was given up being won over. 15. PW-12 SI Balak Ram has deposed that prosecutrix moved an application Ex.PW-3/A before him near Sabu Saria (Iron) Factory at Kala Amb. He was on patrolling duty. He made endorsement Ex.PW-12/A on application Ex.PW-3/A and sent the same throu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in the adjoining room inquired from the boys what were they doing and to come out, they also threatened him. Short structured boy brought Dari from inside the room and committed rape upon her and thereafter the second boy dragged her to her bed room and committed rape upon her. She came out of the room and raised alarm. Rajinder and the boy sitting with him and the landlord assembled on the spot. Rajinder told her the names of boys Tilak Raj and Ram Singh. She stayed in the house of landlord due to fear. However, there is variance what has been stated in Ex.PW-3/A and when she appeared as witness in the Court. She has not stated in her statement that she told the boys to leave the place, failing which she would call the police. In her statement, she has stated that she had called Tara but the accused had threatened her. In the Rukka, she has testified that in fact Tara had come to the room and had inquired what was the matter, but she told her that there was nothing unusual. This is material omission made by PW-3 Vidya Devi in her statement. It is stated in the rukka that Rajinder has also inquired from the boys that what were they doing and he asked them to come out. PW-3 Vidy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e he came out, they would kill him. He has also denied the suggestion that the prosecutrix told him that the boys raped her. He has denied the suggestion that he disclosed the names of the accused to Ved Parkash. In his crossexamination conducted by the defence counsel he has deposed that the accused had left his room at 10 or 10.15 P.M. He heard the cries of the prosecutrix after one hour. Thereafter she came to his room. He inquired from her as to what has happened. She disclosed nothing to him. Thereafter he left the room. It is also stated that door from his room goes to the room of prosecutrix. The police has also prepared the spot map. It is evident from the statement of PW-1 Ved Parkash and PW-3 Vidya Devi that the room of the prosecutrix was adjoining to the room of Rajinder Kumar. If she had raised alarm, it would have definitely drawn the attention of Rajinder Kumar, who was residing in the adjoining room. Thus, version of PW-3 Vidya Devi that she was threatened by the accused cannot be believed. She could tell the same to Rajinder Kumar when he inquired from the boys, as per her version. Thus, it cannot be believed by any stretch of imagination that accused had forcibly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pening in the room was being heard by Rajinder Kumar. It is for this reason that Rajinder Kumar told the boys to come out. According to rukka, when she raised alarm PW-1 Ved Parkash and PW-2 Rajinder Kumar had come on the spot. However, in her statement, she has stated that she came out and went to the house of Ved Paraksh and stayed there over night with him. PW-11 Gopal Dutt has not supported the prosecution case at all. In fact, PW-1 Ved Parkash and PW-2 Rajinder Kumar have been declared hostile. The only conclusion, which can be drawn from the evidence of the prosecution, is that the sexual act was consensual. The prosecutrix was 32 years of age having two children. There are material contradictions, inconsistencies and embellishments in the statements of the prosecution witnesses. The prosecution has failed to prove its case against the accused. 24. In order to prove charge under section 342 of the Indian Penal Code, the prosecution has to prove that: a) the wronged person had a right to proceed on a particular way over land or water; b) the accused obstructed or prevented the wronged person from proceeding along the particular way; c) the accused caused such obstr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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