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2005 DIGILAW 1436 (RAJ)

Ram Niwas v. State of Rajasthan

2005-05-13

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-Both these criminal miscellaneous petitions under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code") are directed against the common Order dated 05.01.2005 passed by the Sessions Judge, Merta (for short, "the trial Court" hereinafter) in Sessions Case No. 25/2004, whereby the trial allowed the application filed by the prosecution under Section 319 of the Code and took cognizance of the offences punishable under Sections 363 and 366, IPC, against petitioner Ram Niwas and under Section 376, IPC against petitioner Hema Ram; and summoned them by non-bailable warrants. Aggrieved by the order impugned, both the petitioners have filed the aforesaid criminal miscellaneous petitions. Since, both the miscellaneous petitions arise out of the common order in one and the same case, therefore, they are being heard and decided together. 2. I have heard learned Counsel for the petitioners and the Public Prosecutor for the State. I have carefully gone through the impugned order as well as the statements of prosecution witnesses, more particularly the statement of prosecutrix PW. 2 Kumari Kiran Kanwar, a minor girl of 15 years in age, recorded on 011.2004 by the trial Court. I have also gone through the statement of the prosecutrix recorded under Section 164 of the Code by the Judicial Magistrate, Merta City on 09.07.2004. 3. On an FIR lodged by the father of the prosecutrix for the offences under Sections 363 and 366, IPC, the police investigated the matter and the prosecutrix was recovered. She was examined under Section 164 of the Code on 09.07.2004 and her statement was recorded by the Judicial Magistrate, Merta City. In her statement before the Judicial Magistrate under Section 164 of the Code, the prosecutrix clearly disclosed her age as 15 years and stated that her house is situated opposite to the house of co-accused Sita Ram; on 24.03.2004, at about 11:00 pm, co-accused Sita Ram suddenly caught-hold her; took her towards his house and with the help of petitioner Ram Niwas, she was put on a motorcycle which was driven by petitioner Ram Niwas; co-accused Sita Ram kept her holding on the motorcycle and took her to village Ren and thereafter in a jeep, she was taken to Jaipur. She further stated that she was kept in a hotel at Jaipur and subjected to forcible sexual intercourse by co-accused Sita Ram. She further stated that she was kept in a hotel at Jaipur and subjected to forcible sexual intercourse by co-accused Sita Ram. She further stated that petitioner Hema Ram also came there and he also subjected her to forcible sexual intercourse. She further stated that petitioner Hema Ram and co-accused Sita Ram threatened her and committed repeated forcible sexual intercourse for a number of days. Thereafter, she was taken from Jaipur to Bayana, where also co-accused Sita Ram and petitioner Hema Ram subjected her to rape. She categorically stated that she was forcibly taken away by petitioner Ram Niwas and co-accused Sita Ram. Co-accused Sita Ram threatened her not to disclose the name of petitioner Hema Ram, who is the brother-in-law of co-accused Sita Ram and intended to sell the prosecutrix; however, she was recovered by the police. Despite this statement, the police did not file challan against both these petitioners and the challan was filed only against co-accused Sita Ram. 4. On 011.2004, the prosecutrix was examined by the trial Court. Before the trial Court, she clearly stated on oath that co-accused Sita Ram caught-hold her and put her on the motorcycle which was driven by petitioner Ram Niwas and was taken to village Ren and thereafter in a jeep to Jaipur. At Jaipur, she was kept in a hotel and in the hotel room, she was subjected to rape by petitioner Hema Ram and co-accused Sita Ram. She further stated that she started crying, whereupon she was threatended by co-accused Sita Ram and petitioner Hema Ram of dire consequences, including the threat to her life. Thereafter, she was taken in a jeep to Bayana and there also she was subjected to sexual intercourse at Bayana in a rented room, where also, co-accused Sita Ram and petitioner Hema Ram repeatedly committed sexual intercourse with her. She categorically stated that co-accused Sita Ram and petitioner Hema Ram, both, subjected her to forcible sexual intercourse repeatedly and both of them were intending to sell her. 5. After recording the statement of the prosecutrix before the trial Court, the prosecution filed an application under Section 319 of the Code for arraigning the petitioners as accused and to be tried with the accused already facing trial. 5. After recording the statement of the prosecutrix before the trial Court, the prosecution filed an application under Section 319 of the Code for arraigning the petitioners as accused and to be tried with the accused already facing trial. By a well-reasoned order impugned, the trial Court allowed the application filed by the prosecution under Section 319 of the Code and took cognizance of the offences, as noticed-above, against the petitioners and issued process against both the petitioners by non-bailable warrants. 6. It is contended by the learned counsel for the petitioners that both the petitioners have not been named out in the FIR which was lodged by the father of the prosecutrix. Obviously, the father of the prosecutrix did not know as to how and in what manner the occurrence took place. He could only know that the prosecutrix had been taken away by co-accused Sita Ram but since he had not witnessed the occurrence, therefore, it was not expected from the first informant to narrated in the FIR the manner as to how the prosecutrix was kidnapped and subsequent thereto, what had happened with her, which could be know only after the prosecutrix was recovered by the police from the custody of the accused. 7. Learned Counsel for petitioner Ram Niwas contended that in the FIR, it was not alleged that the motorcycle of petitioner Ram Niwas was used. Be that as it may, the prosecutrix, after having been released from the clutches of the accused, made a statement under Section 164 of the Code before the Judicial Magistrate and categorically stated that it was petitioner Ram Niwas with the help of him, she was forcibly put on the motorcycle by co-accused Sita Ram and caught-hold her on the motorcycle against her wishes and petitioner Ram Niwas drove the said motorcycle. Thus, prima facie, it is established that petitioner Ram Niwas and co-accused Sita Ram kidnapped the prosecutrix from the lawful guardianship of her father with intent that she may be compelled, or knowing it to be likely, she may be forced and seduced to illicit intercourse against her will. Thus, prima facie, it is established that petitioner Ram Niwas and co-accused Sita Ram kidnapped the prosecutrix from the lawful guardianship of her father with intent that she may be compelled, or knowing it to be likely, she may be forced and seduced to illicit intercourse against her will. Thus, from the statement of the proseuctrix, prima facie, the offences punishable under Sections 363 and 366, IPC are made out against petitioner Ram Niwas and, therefore, in my view, the trial Court was justified in taking cognizance of the aforesaid offences against petitioner Ram Niwas and arraigning him as an accused. 8. So far as petitioner Hema Ram is concerned, learned Counsel appearing for him has contended that on 27.03.2004, a criminal case, being Criminal Case No. 92/2004 (State vs. Hema Ram), was pending against petitioner Hema Ram in the Court of Additional Chief Judicial Magistrate, Merta City, wherein the police filed challan against petitioner Hema Ram on 27.03.2004 before the said Court for the offence punishable under Section 19/54 of the Excise Act, wherein the presence of petitioner Hema Ram was shown in the Court. Be that as it may, on 27.03.2004 and onward dates, it has been alleged by the prosecutrix that petitioner Hema Ram also subjected her to forcible sexual intercourse against her will in a hotel room at Jaipur. The possibility cannot be ruled out that after attending the Court at Merta City in the early hours, petitioner Hema Ram could have travelled to Jaipur and thereafter, not only on 27.03.2004 but thereafter also, subjected the prosecutrix to forcible sexual intercourse against her will and she was thereatened of dire consequences, as also petitioner Hema Ram continuously stayed for a number of days in a hotel room at Jaipur and subjected the prosecutrix to rape and thereafter she was taken in a jeep to Bayana by the co-accused Sita Ram and the petitioner Hema Ram and there also she was subjected to forcible sexual intercourse in a rented room. Therefore, on the basis of the plea of alibi, at this stage, it cannot be said that petitioner Hema Ram had not committed rape on the prosecutrix and, therefore, at this stage, the contention raised by learned Counsel for petitioner Hema Ram cannot be accepted. 9. In Rakesh & Anr. Therefore, on the basis of the plea of alibi, at this stage, it cannot be said that petitioner Hema Ram had not committed rape on the prosecutrix and, therefore, at this stage, the contention raised by learned Counsel for petitioner Hema Ram cannot be accepted. 9. In Rakesh & Anr. vs. State of Haryana, 2001 (6) SCC 248 , the Honble Supreme Court held that although power under Section 319, CrPC, should be sparingly exercised but where prosecution witnesses name certain persons as being involved in a serious crime, their addition as accused in exercise of power would not be unwarranted. The Apex Court further held that on the basis of evidence of the prosecution witnesses, other persons can be arraigned as accused and while doing so, cross-examination of such witnesses is not necessary because the opportunity to cross-examine such witnesses would be available to such person at the time of trial. 10. In this view of the matter, I do not find any illegality, error or perversity in the order impugned warranting interference. 11. At this stage, learned Counsel for the petitioner submit that petitioners would surrender before the trial Court and move regular bail application (s), which may be decided on the same day. 12. Consequently, both the miscellaneous petitions are dismissed. The ad interim stay order dated 22.03.2005 passed in S.B. Criminal Miscellaneous Petition No. 270/2005 is hereby vacated and the stay petitions in both the cases stand dismissed. If the petitioners surrender before the trial Court on or before 25.05.2005 and move regular bail in the early hours of the Court with advance-copy to the Additional Public Prosecutor, the trial Court shall decide the same in accordance with law on the same day.