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2008 DIGILAW 2238 (RAJ)

Namkin Devi v. State of Rajasthan

2008-09-23

MAHESH CHANDRA SHARMA

body2008
Judgment Hon'ble SHARMA, J.—This criminal revision petition has been filed by the complainant petitioner against the judgment and order dated 18.7.2007 passed by the Special Judge, SC/ST (Prevention of Atrocities) Act, Cases and Addl. District & Sessions Judge, Sawaimadhopur in Cr. Revision No. 67/2007 (75/2007) whereby the revisional court has allowed the revision filed by the accused non-petitioners and set aside the order dated 28.2.2007 passed by the Addl. Chief Judicial Magistrate, Sawaimadhopur in Cr. Case No. 51/2007 by which the Magistrate took cognizance against the accused non-petitioners for the offence u/S. 376 r/w 120-B, IPC. (2) Brief facts of the case as set up by the complainant petitioner are that complainant petitioner Smt. Namkin Devi W/o Premraj lodged a written report at police station Bonli District Sawaimadhour on 7.11.2004 at 8.20 PM. On the basis of the aforesaid information, an FIR No. 190/2004 was registered for the offence u/S. 376 against the accused respondents (Jagdish Prasad and Ramdhan). During the course of investigation, statements of the complainant were recorded u/S. 164 Cr.P.C. in which she was specifically corroborated the contention of the first information report regarding rape. At the relevant time, accused respondent Jagdish was an RAS officer and posted as a Sub-Divisional Magistrate, Bonli, while accused respondent Ramdhan was working as a teacher. Both the accused respondents are influential persons of the society. The investigation was conducted by the Additional Superintendent of Police, Kishan Sahai Meena who overlooked the statement of the petitioner recorded u/S. 164 Cr.P.C. and FSL report in which semen was detected, submitted final report. (3). Thereafter the complainant/petitioner filed a protest petition on 13.1.1995 against the final report. Statements of Prem Raj, Kaluram and Babu Lal were recorded u/S. 202 Cr.P.C. while statements of the complainant petitioner were recorded u/S. 200 Cr.P.C. (4). The Addl. Chief Judicial Magistrate, sawaimadhopur vide order dated 28.2.2007 took cognizance against the accused respondents for the offence u/Sec. 376 and 120-B, IPC and summoned them through warrant of arrest. (5). Thereafter a revision petition was filed against the order dated 28.2.2007 passed by the Addl. Chief Judicial Magistrate, Sawaimadhopur. In this revision petition, the Special Judge, SC/ST (Prevention of Atrocities) Act, Cases and Addl. District & Sessions Judge, Sawaimadhopur has quashed and set aside the order dated 28.2.2007 in which the Additional Chief Judicial Magistrate, Sawaimadhopur, took cognizance for the offence u/s. 376 r/w 120-B, IPC. (6). Chief Judicial Magistrate, Sawaimadhopur. In this revision petition, the Special Judge, SC/ST (Prevention of Atrocities) Act, Cases and Addl. District & Sessions Judge, Sawaimadhopur has quashed and set aside the order dated 28.2.2007 in which the Additional Chief Judicial Magistrate, Sawaimadhopur, took cognizance for the offence u/s. 376 r/w 120-B, IPC. (6). Against the said order, the prosecutrix/complainant/petitioner has preferred this revision petition before this Court. (7) Mr. Biri Singh and Mr. Mukesh Saini, learned counsel for the petitioner have contended that the revisional Court has passed the order without appreciating the statements u/S. 164, 200 and 202, Cr.P.C. in which it was clearly stated by the petitioner and other witnesses that the accused respondents have committed rape along with her and the FSL report is also in her favour in which semen was deducted even though the police has submitted the final report. (8). Thereafter she knocked the doors of the temple of justice where three witnesses, namely, Premraj, Kaluram and Babu Lal were examined u/S. 202 Cr.P.C. and she herself examined u/S. 200 Cr.P.C. (9). The statements of these witnesses have affirmed the commission of offence under Section 376 and 120-B, IPC but the revisional court has not appreciated these statements and set aside the order of the trial Court. (10). Learned counsel has relied upon in the case of Shivnath vs. State of West Bengal reported in JT 2006(2) SC 172, Nagawwa vs. Veeranna Shiva Langappa Kom Jalgi & Ors. reported in 1976 SCC (Cr.) 507 and Ajay Mehra & Anr. vs. Durgesh Babu & Ors. reported in 2003 SCC (Cri.) 1530. (11). In the last, they have urged to this Court that the Court of Addl. Chief Judicial Magistrate, Sawaimadhopur, has passed the order of cognizance on 28.2.2007 after due application of mind and considering the statements recorded u/S. 164, 200 and 202, Cr.P.C. and the aforesaid order of the Additional Chief Judicial Magistrate, Sawaimadhopur, was quashed and set aside by the revisional court. (12). On the other hand, Mr. Anoop Dhand and Mr. Nitin Jain, learend counsel appearing on behalf of the accused respondents have contended that the Addl. Chief Judicial Magistrate, Sawaimadhpur, has not appreciated the statements of the prosecutrix in a proper manner and also not considered the other relevant documents at the time of taking cognizance for the offence u/S. 376 and 120-B, IPC. (13). Anoop Dhand and Mr. Nitin Jain, learend counsel appearing on behalf of the accused respondents have contended that the Addl. Chief Judicial Magistrate, Sawaimadhpur, has not appreciated the statements of the prosecutrix in a proper manner and also not considered the other relevant documents at the time of taking cognizance for the offence u/S. 376 and 120-B, IPC. (13). The statements u/S. 164 and 200 Cr.P.C. of prosecutrix/complainant and the statements of the other witnesses namely Premraj, Kalu Ram and Babu Lal examined by the Magistrate u/S. 202 Cr.P.C. do not prove the offence of accused respondents. On behalf of the accused respondent Ramahdan, it was contended that it is the case of consent and this fact has been rightly appreciated by the revisional court at page No. 16 of is judgment and the revisional court has passed the order after the appreciation of evidence and set aside the cognizance taken by the Court below on 28.2.2007. (14). He has placed reliance on the following judgments Chhogaram vs. State of Rajasthan & Ors. reported in 2008(1) Cr.L.R. (Raj.) 252 and Richpal Singh vs. State of Rajasthan reported in 1992 Cr.L.R. (Raj.) 789 = RLW 1992(2) Raj. 457 and lastly they request to this Court that the judgment of the revisional court be maintained. (15). I have heard learned counsel for the parties and have gone through the material available on record as well as the impugned judgments and orders. (16). 457 and lastly they request to this Court that the judgment of the revisional court be maintained. (15). I have heard learned counsel for the parties and have gone through the material available on record as well as the impugned judgments and orders. (16). On a bare perusal on statements of the prosecutrix, it reveals that she has clearly stated in her statement before the trial Court u/S. 164 Cr.P.C. which is reproduced as under: <span class=”Hfont”> ^^esjh 'kknh izsejkt ds lkFk rhu lky igys f[kj[kMh xkao esa gqbZ FkhA esjk lkok 'kknh ds lkFk gh dj fn;k FkkA gekjs xkao dk jke/ku eh.kk gS ftlds firk dk uke ugha tkurhA blus esjs ifr dks ljdkjh ukSdjh] tehu o bafnjk vkokl dk >kaLkk fn;k vkSj ckSayh ,l-Mh-,e- ds ;gka 900@& :- eghus esa jksVh cukus ds fy;s j[k fy;kA esjk ifr ,l-Mh-,e- ds ;gka jksVh cukus vkrk rks ihNs ls gekjs ?kj vkrk vkSj ekSdk ns[krk Fkk fd ?kj ij dksbZ ugha gS rHkh esjs lkFk cqjk dke djrk FkkA esjs diM+s pM~Mh tcjnLrh [kksy nsrk vkSj viuh isUV pMMh [kksydj tcjnLrh esjs mij iM+dj viuk is'kkc djus dk esjs esa Mky nsrk vkSj esjh Nksjh gS mldks uhps iVd nsrk vkSj esjk eqag can dj nsrk FkkA mlds ckn fQj eq>s cgdkdj ,l-Mh-,e- ds DokVj ij ykus yx x;k vkSj ml le; esjk ifr eq>s ogka ugha feyrk FkkA ,l-Mh-,e- dk uke txnh'k FkkA eSa ?kwa?kV esa gh jgrh FkhA ,d dejs esa ys tkrs vkSj igys Nksjh dks jke/ku ckgj ys tkrk vkSj ,e-Mh-,e- vius lkjs diM+s [kksyrk vkSj esjs diM+s ,l-Mh-,e- tcjnLrh [kksyrk esjs mij iM+dj viuk is'kkc djus dk esjs vUnj ?kqlk nsrk FkkA mlds ckn ,e-Mh-,e- Nksjh dks j[krk vkSj jke/ku Hkh ,slk gh djrkA mlds ckn eq>s /kedh nsrs fd ;fn fdlh dks dgk rks tku ls ekj nsaxs rsjs ifr dks ejok nsaxsA nhikoyh ls igys tc ukSjrs Fks rks eSa lkeosa vkBosa uksjrs dks fnu esa HkS:th ds tkdj vk jgh Fkh rc jkLrs esa ulZjh o ikuh ds ,uhdV ds ikl cacwyksa ds chp esa jke/ku us eq>s idM+ fy;k vkSjh Nksjh dks uhps iVd fn;k vkSj tcjnLrh esjs diM+s pM~Mh [kksy nh vkSj vius diM+s [kksydj cqjk dke fd;kA eSa fpYyk;h rks ckcwyky vk;kA ml le; jke/ku esjs mij iM+k gqvk FkkA rFkk viuk is'kkc djus dk esjs esa Mky j[kk FkkA fQj ?kj vkdj eSaus lkjh ckr esjs ifr dks crk;h vkSj ckcwyky us Hkh lcdks crk nhA rc dgus yxs fd iSls ys yks vkSj ckr [kRe dj nksA ge iSls okys gSa ,e-Mh-,e- gekjk vr% Fkkus dksrokyh esa rqEgsa Qalok nwaxkA mlds ckn geus fjiksVZ dj nhA uksV xokg Lo;a ikapoh rd i<h gS mlus Lo;a Hkh c;ku i<k o i<dj lquk;k rks lgh gksuk ekudj vius gLrk{kj fd;sA c;ku esjs Lo;a ds dyeh gSa** (17). The trial Court has rightly appreciated the evidence and the revisional court failed to do so. (18). Prima facie, it seems that both the respondents are powerful persons gave offer to the prosecutrix that her husband will be put in Govt. employment and by this manner he (Ramdhan) obtained the consent of the prosecutrix by fraudulent manner. (19). From a bare perusal of the record of the case, statements of the prosecutrix recorded by the Magistrate u/S. 164 and 200 Cr.P.C. and also on the basis of the statements made by the other witnesses u/S. 202 Cr.P.C. and on the basis of the FSL report, in my opinion, this is not the case of consent in the light of section 90, IPC which is reproduced as under: "90. Consent known to be given under fear or misconception.- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act known, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.- unless the contrary appears from the context, if the consent is given by a person who is under twelve year of age." (20). For these reasons, I quash and set aside the order dated 18.7.2007 passed by the Special Judge SC/ST (Prevention of Atrocities) Act, Cases and Addl. District & Sessions Judge, Sawaimadhopur in Cr. Revision No. 67/2007 (75/2007) and I uphold the order dated 28.2.2007 passed by the Additional Chief Judicial Magistrate, Sawaimadhopur in Cr.Case No. 51/2007 by which he has taken the cognizance u/S. 376 and 120-B, IPC. (21). However, the trial Court is directed to try the matter in expeditious manner. Record of this case be sent back to the concerned court immediately. (22). The revision petition is allowed.