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2011 DIGILAW 40 (RAJ)

Abdul Hameed v. State of Rajasthan

2011-01-06

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - By way of this revision petition, the petitioner has challenged the order dated 28.08.2010 passed by the learned Additional District and Sessions Judge (Women Atrocities Cases), Bhilwara in Sessions Case No. 21/2007, whereby the learned trial court ordered to frame charge against the petitioner for the offence under Section 366, 376, 342 and 315 IPC. 2. The brief facts of the case are that a complaint was lodged before the learned Chief Judicial Magistrate, Bhilwara on 07.10.2005 by prosecutrix Ruksana Bano stating inter alia that she is wife of Mohammed Hanif and there are four children out of their wedlock. The mental condition of the husband of the prosecutrix was not balanced and because of that, he left the prosecutrix six years ago and never returned back. It was alleged that the petitioner came to the prosecutrix and said that her husband is lying on the road and on hearing this, the prosecutrix accompanied the petitioner. The petitioner took her to some abandoned house and committed rape with her. The prosecutrix got pregnant and that child was aborted and she was threatened that if she disclosed the fact, she would be done away. Thereafter, she again became pregnant in September 2002 and that child was also got aborted by the petitioner. Thereafter also the petitioner continued to ravish her and when he told the prosecutrix that he would rape her daughter and keep her with him, the prosecutrix lodged the aforesaid complaint. The case was forwarded under Section 156(3) Cr.P.C. to the Police Station Pratap Nagar, Bhilwara and pursuant to that FIR No. 604/2005 under Section 366, 376, 344, 323, 392, 452, 313 and 201 IPC was registered and investigation was commenced. 3. After usual investigation, police filed a charge-sheet against the petitioner for the offence under Section 376, 366, 342 and 315 IPC. The learned Magistrate took cognizance against the petitioner for the aforesaid offences and committed the case for trial to the Court of Sessions and ultimately the case was transferred to the Court of Additional Sessions Judge (Women Atrocities Cases), Bhilwara for trial. The learned trial court vide the impugned order dated 28.08.2010 framed charge against the petitioner for the offence under Section 366, 376, 342 and 315 IPC. 4. Aggrieved by the aforesaid order framing charge, the petitioner has preferred this revision petition. 5. The learned trial court vide the impugned order dated 28.08.2010 framed charge against the petitioner for the offence under Section 366, 376, 342 and 315 IPC. 4. Aggrieved by the aforesaid order framing charge, the petitioner has preferred this revision petition. 5. Learned counsel for the petitioner contended that as per the directions of this court, the Investigating Officer conducted enquiry and as per the enquiry report, the Investigating Officer found that the victim demanded some money for compromise and she is clever to accept the compromise. The report of the Investigating Officer was submitted through the Government Advocate, Rajasthan High Court, Jodhpur and there is a reference of that report in the order dated 03.11.2006 passed by this court in S.B. Criminal Misc. Third Bail Application No. 3147/2006 and the learned trial court without considering that report ordered to frame the charge, therefore, the order dated 28.08.2010 may be set aside. 6. Per contra, learned Public Prosecutor opposed the arguments and defended the order dated 28.08.2010. 7. I have perused the order dated 28.08.2010. The said order does not bear any reference of the report of the Deputy Superintendent of Police, Bhilwara (Rural) submitted through the Government Advocate in the court and about the compromise arrived upon by the parties during the course of investigation as mentioned in the order dated 03.11.2006 as referred above. The learned trial court ought to have considered the report of the Deputy Superintendent of Police, Bhilwara (Rural) as well as the compromise arrived upon by the parties, therefore, the order dated 28.08.2010 appears to have been passed without considering all the relevant documents on record. In view of above, the impugned order suffers from impropriety and perversity, therefore, the same is liable to be set aside. 8. Accordingly, this revision petition is allowed and the order dated 28.08.2010 passed by the learned Additional District and Sessions Judge (Women Atrocities Cases), Bhilwara is set aside. The learned trial court is directed to pass order for framing the charge after considering the compromise arrived upon by both the parties, namely, Smt. Ruksana Bano and Abdul Hameed, and the report of the Deputy Superintendent of Police, Bhilwara (Rural) dated 15.10.2006.Revision allowed. *******