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2010 DIGILAW 560 (GAU)

Ranjit Kumar Talukdar v. State of Assam

2010-08-10

H.N.SARMA

body2010
JUDGMENT H.N. Sarma, J. 1. This criminal petition is directed against the order dated 23.11.09 passed by the learned Addl. Sessions Judge (Fast Track Court) No. 1, Kamrup at Guwahati in Sessions Case No. 267 (K-G)/09 thereby framing charges under Section 376(1) IPC. 2. Heard Mr. K. Agarwal, learned Counsel for the Petitioner and Mr. Monir, learned Addl. PP, Assam. 3. On the basis of an FIR lodged by one Geetimala Patgiri on 18.12.04 with the O/C, Chandmari Police Station, Guwahati, the Chandmari PS Case No. 323/04 under Sections 448/376/506 IPC was registered against the Petitioner. After registration of the case, the I.O. started investigation. During the course of investigation, the informant/victim was medically examined, got her statement recorded under Section 164 Code of Criminal Procedure before the Magistrate and the statement of the witnesses under Section 161 Code of Criminal Procedure was also recorded. After conclusion of the investigation the I.O. submitted final report being Final Report No. 92/05 on 3.6.05. 4. The report of the investigation with necessary materials was submitted to the Court and notice was issued to the informant before acceptance of the report. The informant having raised objection against the report by filing protest petition, the learned SDJM(S) No. 1, Guwahati meticulously considered all the materials collected during the investigation as available in the case diary including the statement of the victim lady recorded under Section 164 Code of Criminal Procedure and did not accept the final report so submitted by the I.O. but took cognizance of the offence under Sections 448/376/506 IPC. The offence under Section 376(1) being exclusively triable by the Court of Session, the learned Magistrate committed the case to the Court of Sessions, Kamrup, Guwahati wherein it was registered as Sessions Case No. 267(K)/09 and the case was made over to the Court of the Addl. District & Sessions Judge (FTC) No. 1, Kamrup, Guwahati for necessary disposal. Upon hearing both the prosecution and the defence and upon consideration of the materials available on record filed under Section 173 of the Code of Criminal Procedure the learned trial Judge vide impugned order dated 23.11.09 framed charges against the accused/Petitioner under Section 376(1) IPC which on being read over and explained, the accused pleaded not guilty and claimed to be tried. 5. Assailing the impugned order framing charge against the accused/Petitioner, Mr. 5. Assailing the impugned order framing charge against the accused/Petitioner, Mr. Agarwal submits that perusal of the materials collected by the I.O., more particularly the statement of the witnesses, do not disclose an offence even prima facie against the Petitioner punishable under Section 376(1) IPC. Referring to the statement of the witnesses recorded by the I.O. during the course of investigation to the effect that on the date of occurrence i.e., on 14.5.04 a birth day party was going on in the residence of the accused Petitioner wherein the victim along with other members of her family were also present, it is contended by the learned Counsel that in such a situation the allegation levelled against the Petitioner is simply unbelievable and accordingly the learned trial Judge mechanically passed the impugned order framing charge against the accused without any application of mind, which is not sustainable in law. In support of his submission, Mr. Agarwal referred the various decisions of the Apex Court highlighting the scope and ambit as well as material facts required to be taken care of by the Court at the time of taking cognizance of the offence, some of which are noted below- (1) State of Bihar v. Ramesh Singh AIR 1977 SC 2018 (2)Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and Ors. AIR 1990 SC 1962 (3)Hem Chand v. State of Jharkhand (2008) 5 SCC 133 (4)State of Maharashtra v. Salman Selim Khan and Ors. (2004) 1 SCC 525 (5)State of Punjab v. Gurmin Singh (1996) 2 SCC 384 6. Mr. Munir, learned Addl. PP objecting the submission of Mr. Agarwal contends that the materials collected by the I.O. during the course of investigation was meticulously scrutinized by the learned SDJM and on such scrutiny the learned SDJM having found sufficient materials took cognizance of the offence under Section 376 IPC and did not accept the enquiry report and committed the case for necessary trial to the learned Court of Session. It is further contended that the learned Sessions Judge after considering the allegations levelled in the FIR and supporting the statement of the prosecutor both recorded under Sections 164 and 161 Code of Criminal Procedure and other witnesses so recorded during the course of investigation and having found materials as well as sufficient ground for prosecuting the accused on the basis of the principle of law required to be followed by a trial Judge framing the charge; passed the impugned order which requires no interference in this criminal petition. It is further contended by the learned PP that the Petitioner would get ample opportunity to defend his case at the time of trial and cross-examination of the prosecution witnesses and on the face of materials available on record, the case in hand it is a fit case for framing charges against the accused Petitioner. 7. The submission of the learned Counsel of both the sides received due attention of the Court. 8. As regards the existence of power and scope of the trial Judge to be exercised at the time of framing charge, more particularly the charge under Section 376 IPC and the materials required to be considered, there is no dispute at the bar with regard to the involvement of the accused Petitioner. 9. Mr. Agarwal justifying his submission made on the basis of the ratio of the decision rendered by the Apex Court as regards the principle to be followed at the time of framing charges, would argue that at the time of consideration of the charges, the Court exercises a limited jurisdiction and at this stage it is required to be seen whether prima facie case has been made out against the Petitioner and there are ground for presuming that the accused has committed the offence which is trialable by the Court of Session. 10. In the case of Hem Chand (supra), the Apex Court held that at the stage of framing charges the Court exercising a limited jurisdiction has to see as to whether a prima facie case has been made out and whether a case of probable conviction for commission of offence has been made out on the basis of the materials found during the investigation should be the concern of the Court. It, at that stage, would not delve deep into the matter for the purpose of appreciation of the evidence and it would ordinarily not consider whether the accused would be able to establish his defence, if any. 11. In the case of Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 the following principles have been laid down by the Apex Court for consideration of the Court at the time of framing charges: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Whether the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 12. In the case of Niraryan Singh Karam Singh Punjabi (supra), the Apex Court reiterated the principle as referred by Mr. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 12. In the case of Niraryan Singh Karam Singh Punjabi (supra), the Apex Court reiterated the principle as referred by Mr. Agarwal to the effect that at the stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. 13. In the case of Romesh Singh (supra), the Apex Court held that reading of Sections 227 and228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. If at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. If at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal case. For the purpose of deciding prima facie whether the Court should proceed with the trial or not is the test to be applied. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. 14. In the case of Gurmit Singh (supra), the Apex Court dealing with the case of conviction under Section 376 IPC observed as follows: 21. Of late, crime against women in general and rape in particular is one the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutor, which are not of fatal nature to throw out an otherwise reliable prosecution case. If evidence of the prosecutor inspires confidence, it must be relied upon without seeking corroboration of her statement in a material particulars. If evidence of the prosecutor inspires confidence, it must be relied upon without seeking corroboration of her statement in a material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutor must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. 15. Referring to the power under Section 482 Code of Criminal Procedure for the purpose of quashing of an order in the case of framing of charge by the trial Court, it is observed by the Apex Court in the case of Salman Selim Khan and Ors. (supra), that it is open to the High Court to entertain the petition under Section 482 Code of Criminal Procedure to quash the charges framed by the trial Court, the same cannot be done by weighing the correctness or sufficiency of evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing charge can be done only at the stage of trial. 16. Applying the aforesaid test, in the instant case, we find that the prosecutor in her statement recorded under Section 164 Code of Criminal Procedure as well as the statement give before the I.O. under Section 161 Code of Criminal Procedure has categorically alleged that the accused committed the acts that constitute an offence under Section 376(1) IPC on 14.5.05. Same version was also found in the FIR. From the reading of the averments made in the FIR and the state of the prosecutor under Section 164 Code of Criminal Procedure before the learned Magistrate as well as the statement recorded by the I.O. are consistent in nature as regards the allegation against the Petitioner. On the other hand, Mr. Same version was also found in the FIR. From the reading of the averments made in the FIR and the state of the prosecutor under Section 164 Code of Criminal Procedure before the learned Magistrate as well as the statement recorded by the I.O. are consistent in nature as regards the allegation against the Petitioner. On the other hand, Mr. Agarwal pointed out that the statement of the other witnesses recorded under Section 161 Code of Criminal Procedure disclosed that on the date of occurrence, there was a birthday of the accused and on that day party was going on in the residence and the prosecutor was also present in the party it cannot be said that the Petitioner has committed an offence as alleged. The submission made by the learned Counsel cannot be accepted considering the limited power of this Court under Section 482 to quash the proceeding to the effect that whether there is a prima facie case for holding the accused guilty of the offence or not. 17. In this case, filing Crl. Misc. Case No. 251/10, the Respondent No. 2/first informant prayed for dismissal of the Criminal Petition No. 418/09 while pointing out that at the investigation stage the accused Petitioner having made a prayer for pre-arrest bail before the learned Sessions Judged in M.C. No. 1027(K)/04, the learned Sessions Judge vide order dated 7.1.05. rejected the prayer on the ground that the case cannot be held to be false on the ground of delay of lodging an FIR and the case diary did not reflect any reason to hold that the Petitioner was falsely implicated. Subsequently, the Petitioner having filed BA No. 17/05, the same was also dismissed on 19.1.05 upon having found sufficient incriminating materials in the case diary against the Petitioner. Similar prayer for releasing the Petitioner on pre-arrest bail was made by the Petitioner in BA No. 485/05 and the same was also rejected on 11.3.05 by another Hon'ble Judge of this Court on the ground that the case diary contains specific materials against the accused Petitioner. 18. Similar prayer for releasing the Petitioner on pre-arrest bail was made by the Petitioner in BA No. 485/05 and the same was also rejected on 11.3.05 by another Hon'ble Judge of this Court on the ground that the case diary contains specific materials against the accused Petitioner. 18. From the materials collected by the I.O. during the course of investigation and the statement of the prosecutor recorded under Section 164 Code of Criminal Procedure as well as statement given before the I.O. by the husband of the victim and the statement of other witnesses examined under Section 161 Code of Criminal Procedure, it cannot be said that there is no case for presuming that the accused has committed the offence under Section 376 IPC, although Mr. Agarwal strenuously urged that the statement of all the witnesses recorded under Section 161 Code of Criminal Procedure during investigation discloses that on the date of occurrence there was a birthday party in the house of the victim. The specific statement of the prosecutor and her husband supported by other witnesses clearly disclose that there are sufficient materials to presume that the accused Petitioner has committed the offence under Section 376 IPC. 19. It is by now one of the settled principle of law that an accused can be convicted even on the solitary statement of the prosecutor provided the same inspires confidence of the Court. Whether the statement of the prosecutor supported by her husband and other witnesses on the one hand and statement of some other witnesses on the other hand is to be decided at the stage of trial but on the materials available on record. Considering the allegation levelled by the prosecutor against the accused Petitioner and fully supported by the statement of her husband and some other witnesses and also considering the scope, ambit and power of the trial Judge to deal with a case under Section 376 IPC and the principle of framing charge under Section 228 of the Code of Criminal Procedure as indicated above and the very limited jurisdiction of this Court to exercise under Section 482 Code of Criminal Procedure, the prayer of the Petitioner to quash the charge framed under Section 376 IPC is not acceptable. 20. In view of the above discussion this petition is dismissed being devoid of merit. 21. Interim order dated 21.12.09 stands vacated. Petition dismissed.