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2011 DIGILAW 2000 (RAJ)

Mitthu @ Modiya v. State of Rajasthan

2011-09-16

MOHAMMAD RAFIQ

body2011
JUDGMENT 1. - This petition under section 482 Cr.RC. has been filed by the accused Mitthu @ Modiya challenging the order dated 27.7.2007 by which charges against him for offence under section 376, 326 and 323 IPC has been framed. 2. Contention of Shri D.V. Tholia, learned counsel for the petitioner is that the learned Additional Sessions Judge erred in law in mechanically framing charges against the accused-petitioner for those offences. Learned counsel referred to the first information report that was lodged by prosecutrix Smt. Mohra Devi. In the FIR, the allegation against the accused-petitioner was of biting the ear of husband of the prosecutrix and on that basis case against petitioner under section 326 and 457 of IPC was registered. There was no allegation of committing rape upon the prosecutrix by the accused in the FIR, which was registered on 21.2.2007. On the following day i.e. 22.2.07 when the statement of prosecutrix under section 161 Cr.RC. was recorded even therein also no allegation of rape was levelled by her. The dispute is between the husband of the prosecutrix and the petitioner on payment of certain unpaid agriculture wages. Learned counsel submitted that the medical examination of the prosecution was got done belatedly on 10.3.2007, which does not remotely suggest possible rape upon her. The allegation of rape appeared for the first time in the statement of prosecutrix recorded under section 164 of Cr.P.C. on 21.3.07, but even that allegation was made by her so belatedly. The learned trial court should have judiciously apply its mind to the facts of the given case so as to arrive at independent conclusion whether or not the case was of worth framing charge in the face of so much of improvements in the original version, which is not otherwise supported even by the medical examination. Learned counsel argued that even the charges under section 326 and 323 could not have been made out, but according to him the matter hardly travel under section 323 and 235 of IPC for biting the ear of the husband of prosecutrix. 3. Shri Paresh Choudhary, learned Public Prosecutor opposed the misc. petition. 4. Learned counsel argued that even the charges under section 326 and 323 could not have been made out, but according to him the matter hardly travel under section 323 and 235 of IPC for biting the ear of the husband of prosecutrix. 3. Shri Paresh Choudhary, learned Public Prosecutor opposed the misc. petition. 4. On hearing the learned counsel for the petitioner and perusing the material on record and also the finding that there was indeed no allegation of rape in the FIR that was registered by the prosecutrix herself who visited the police station accompanied by her husband. The allegation against the petitioner was of biting the ear of husband of prosecutrix and when he raised hue and cry, the accused ran way. The statement of prosecutrix under section 161 Cr.P.C. was recorded on 22.2.07 therein also similar allegation was made by her. It is only when the statement of prosecutrix was recorded under section 164 of Cr.P.C. by the judicial Magistrate nearly a month thereafter on 21.3.2007 that for the first time she levelled the allegation of rape. Even from the perusal of that statement, the case appears to be more like that of counsual sex rather than forceable rape, although it cannot be accepted because this allegation has been made very belatedly only to make the case graver against the accused. The medical examination report of the prosecutrix prepared on 10.3.07 also does not support the allegation of rape. If the arguments of the petitioner that there was not even sufficient material or finding to frame the charges against the accused-petitioner under section 325 and 326 of the IPC cannot be accepted, on this aspect of the matter, the learned trial court shall have to decide after evidence is laid and the statement of the Doctor second. 5. This petition is therefore partly allowed. The charge framed against the petitioner to the extent of Section 376 of IPC is quashed. The remaining charges will remain stand. The record of the trial court may be sent back forthwith with the direction of earliest conclusion of the trial on remaining two charges.Petition partly allowed. *******