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2011 DIGILAW 1806 (RAJ)

Jitendra alias Babli v. State of Rajasthan

2011-08-25

R.S.CHAUHAN

body2011
JUDGMENT 1. - The petitioners are aggrieved by the order dated 12.11.2009 passed by the Additional District & Sessions Judge, Bandikui, District Dausa, whereby the learned Judge has framed the charges for offences under Sections 363, 366, 366-A, 376 and 120-B IPC against the petitioners. 2. The brief facts of the case are that on 07.01.2009, Mannu Singh had filed a report at Police Station Sikandra, Dausa, wherein he claimed that his daughter Meenu came to Sikandra Choraha for the purpose of buying few things. At that time an Indica car came in which Jitendra alias Babli was inside along with few other people. These people kidnapped his daughter and went i towards Jaipur. This incident was seen by Kalu and Man Singh, who informed him over the phone. He further claimed that not only Jitendra but even other members of his family are involved in this case. On the basis of this report, a formal FIR No. 5/2009 was chalked out for offences under Sections 363, 366, 120- B IPC. However, after a thorough investigation, the police filed a challan for offences under Sections 363, 366, 376 and 120-B IPC. Vide order dated 12.11.2009, the learned Judge has framed the charges for offences under Sections 363, 366, 366-A, 376 and 120-B IPC. Hence, this petition before this Court. 3. Mr. Umesh Vyas, the learned counsel for the petitioners, has vehemently contended that the learned Judge has totally ignored the statement given by the prosecutrix Meenu under Section 164 Cr.P.C. In the said statement, she had clearly claimed that her age was 171/2 years. She has further claimed that she and Jitendra had developed intimate relationship. When her family members came to know of this fact, they married her to one Lokesh with whom she stayed for two months. However, when she told about the fact of her intimate relationship with Jitendra, her husband left her at her parental place. She further claimed that out of her own volition she had gone with Jitendra. She further stated that he had never committed rape upon her. According to the learned counsel, the prosecutrix had gone out of her own volition and had physical relationship with Jitendra with her own consent. The learned counsel has also contended that according to the medical evidence, Meenu is an adult. Thus, she was major enough to give consent to have physical relationship with Jitendra. According to the learned counsel, the prosecutrix had gone out of her own volition and had physical relationship with Jitendra with her own consent. The learned counsel has also contended that according to the medical evidence, Meenu is an adult. Thus, she was major enough to give consent to have physical relationship with Jitendra. Therefore, the offence under Section 376 IPC is not made out. Therefore, offences under Sections 363, 366, 366-A, 376 and 120-B IPC are not made out. As far as Kamlesh Kumar and Ajay Kumar, petitioner No.2 & 3, are concerned, he has contended that although the prosecutrix in her statement under Section 161 Cr.P.C. has claimed that both these persons had helped Jitendra in taking her away, but in the statement under Section 164, Cr.PC., she is absolutely silent on this point. Therefore, no offence under Section 120-B IPC is made out. Yet the learned Judge has framed charges against these two petitioners for offence under Section 120-B IPC. 4. On the other hand, Mrs. Alka Bhatnagar, the learned Public Prosecutor, has strenuously contended that there are two sets of evidence with regard to Meenus age. According to her father she is 151/2 years old. This statement is further corroborated by school document. Thus, she is a minor. Since she is minor, the question of her giving consent for physical relationship does not arise. Yet according to the medical evidence, allegedly, she is major. Thus, her age is an issue which needs to be decided by the trial Court. Secondly, that even if Meenus statement under Section 164, Cr.P.C. were taken to be true, even then she being a minor, she could not have given consent for leaving the guardianship of her parents or for having physical relationship with Jitendra. Lastly, that in her statement under Section 161, Cr.P.C., she has stated that Kamlesh Kumar and Ajay Kumar has not only been told by Jitendra that he wanted to marry her, but they also gave money to Jitendra to keep Meenu with him. Thus, the learned Judge was certainly justified in framing the charge for the offence under Section 120-B IPC. 5. In the case of Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368 , the Hon'ble Supreme Court has recently laid down the principles which should govern the framing of charge. Thus, the learned Judge was certainly justified in framing the charge for the offence under Section 120-B IPC. 5. In the case of Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368 , the Hon'ble Supreme Court has recently laid down the principles which should govern the framing of charge. The principles enumerated by the Apex Court are as under-On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge- (i) The Judge while considering the question of framing the charges under Section 227 Cr.RC. 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. The test to determine prima facie case would depend upon the facts of each case. (ii) Where 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. (iii) The 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 etc. However, at this stage; there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out in the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out in the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. 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. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 6. In the present case, there are two sets of evidence. According to the prosecutrixs father, his daughter is 151/2 years old. Similarly, according to the school document, the prosecutrix is a minor. Yet according to the medical report, the prosecutrix is major. Therefore, the first issue that needs to be decided by the learned trial Court is to determine the age of the prosecutrix. Obviously, this issue cannot be adjudicated upon at the stage of framing of the charges, as the issue is to be decided after considering the evidence produced by the prosecution and rebutted by the defence. Till this issue is thrashed out, the statement given by the prosecutrix under Section 164, Cr.RC. would not absolve the petitioner of the charges framed by the learned Judge. 7. At the stage of framing of the charge, the learned trial Court cannot accept the defence version as the gospel truth. What is required by the trial court is to see the broad probabilities of the case of the prosecution. Since the prosecution has pleaded that the prosecutrix happens to be minor, the issue about being competent to give consent or not can only be thrashed out after her age is determined. Therefore, at the initial stage, the statement of the prosecutrix cannot be read as absolving the petitioner No.1 of offences under Sections 363, 366, 366-A, 376 and 120-B IPC. 8. Therefore, at the initial stage, the statement of the prosecutrix cannot be read as absolving the petitioner No.1 of offences under Sections 363, 366, 366-A, 376 and 120-B IPC. 8. As far as petitioner No.2 & 3 are concerned, the prosecutrix in her statement recorded under Section 161, Cr.P.C. has clearly claimed that both the petitioners were well aware of Jitendras intention to marry her, yet they helped Jitendra financially and otherwise. Thus, the learned Judge was certainly justified in concluding that, prima facie, a case of criminal conspiracy does exist. Hence, he was justified in framing a charge under Section 120-B IPC against petitioners No. 2 & 3 along with petitioner No.1. 9. Thus, this Court does not find any illegality or perversity in the impugned order. This petition being devoid of any merit, is hereby dismissed.Petition dismissed. *******