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2011 DIGILAW 488 (JHR)

Ashish Kumar Gupta @ Ashish v. State of JhaMand

2011-06-14

JAYA ROY

body2011
Order 1. Heard the learned counsel for the petitioner the learned counsel for the State and the learned counsel for the Opposite Party No.2. 2. Petitioner has filed this criminal revision application for setting aside the order dated 2.6.2010 passed by the Additional Judicial Commissioner, F.T.C.-VII, Ranchi, whereby the Court below has rejected the petitioner application for discharge filed under Section 227 of the Cr.P.C. 3. The learned counsel of the petitioner submits that Gunaj Jaiswal the Opposite Party No. 2 has filed a Written Report to the Mohila Police stating therein that she aged about 23 years, daughter' of am prakash Jaiswal and is resident of Kokar at Ranchi, she had intimacy with the petitioner since last six years and he forcibly made sexual relationship with her. It has further been alleged that on 20.4.2009 also sexual relation was made by the petitioner on the assurance of marriage. On 21.4.2009 the petitioner is informed the informant that his family members are going to solemnized his marriage with 'another girl on 23.4.2009. On this, the informant went to them and objected on which the bride party refused to marry the petitioner and left the place. Thereafter, the family members of the petitioner informed the informant that they are ready to perform the marriage of the petitioner with her and called the informant and her mother to their house on 28.6.2009. But instead of talking about the performance of the' marriage, they threatened the informant and her mother that if she or her mother ever asked for marriage, they will face serious consequences. They have further threatened the informant party to do away with their lives even Police will not save them. Thereafter, they kicked out the informant and her mother from their house. It is also alleged that the petitioner took away of the informant on 20.4.2009 in the Raj Rappa Mandir for performing marriage but though the petitioner has made a drama of performing marriage but no certificate was given regarding the said marriage to her. But on pretend of marriage, the petitioner enjoyed her and made physical relationship in the house of his friend for the whole night. On the basis of the aforesaid Written Report, a formal F.I.R. was drawn and case has been registered under Sections 376/323/ 504 I.P.C. against the petitioner. After investigation, the police has submitted the charge-sheet. 4. But on pretend of marriage, the petitioner enjoyed her and made physical relationship in the house of his friend for the whole night. On the basis of the aforesaid Written Report, a formal F.I.R. was drawn and case has been registered under Sections 376/323/ 504 I.P.C. against the petitioner. After investigation, the police has submitted the charge-sheet. 4. The learned counsel of the petitioner submits that from the contents of the F.I.R. it is quite clear that no offence under Section 376 of the Penal Code is made out against the petitioner. On the other hand it shows that the informant had happily consented for physical enjoyment for years together and lodged a present case only when the petitioner refused to marry her. It is further contended that the informant according to her own statement she is major and admittedly consent has not been' given for physical relationship under any fear or threat. Therefore, no' case of rape is made out against the petitioner. 5. The learned counsel for the petitioner has also submitted according to the statements of the informant, her age is 23 years therefore she is not minor at the time of lodging F.LR. or at the time of alleged occurrence. Even the report• of the Doctor who has examined the informant on 28.7.2009 has opined "Radiological the individual in between 21 to 22 years of age". In this contest he has cited a decision of the Hon'ble Apex Court reported in A.I.R. 1982 SC 1297 in a case of Jaya Mala vs. Home Secretary, Government of Jammu and Kashmir and Ors. in which the Hon'ble Apex Court has held:- "9...However, it is notorious and one can take judicial notice that the margin of error, in age ascertained by Radiological examination is two years on either side....". The learned counsel has argued that prosecutrix was major, well educated and it cannot be assumed that she was under misconception of facts. Therefore, sexual intercourse by Ashish can be done only with her free consent and thus no offence can be made out against the petitioner. 6. The learned counsel for the informant Mr. Mahesh Tiwary has submitted that even admitting she is major but according to the written report the petitioner has committed rape upon her forcibly from last six years. Therefore, admittedly rape committed upon her when she was minor. 6. The learned counsel for the informant Mr. Mahesh Tiwary has submitted that even admitting she is major but according to the written report the petitioner has committed rape upon her forcibly from last six years. Therefore, admittedly rape committed upon her when she was minor. Therefore, her consent has no value in eye of law. Furthermore, he has submitted that it has also come in the investigation that the petitioner has made physical relationship forcibly with the informant. 7. Mr. Mahesh Tiwary the learned counsel for the informant has cited a number of decisions to support his case. One of the citations is 1977 SCC (Cr.) 533 [: 1978 PLJR14], State of Bihar vs. Ramesh Singh in which the Hon'ble Apex Court has held:- "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, strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But 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 proceedings 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 cases in France where the accused is presumed to be guilty unless the contrary is proved, But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. 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. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227." 8. Considering the submissions made by the parties and considering the materials of records, I find after completion of investigation, charge-sheet was submitted against the petitioner not only that statements of the witnesses which has come in the case diary clearly shows that the petitioner from last few years on the assurance of marriage has made physical relationship with the informant. The said witnesses have also supported the contents of the F.I.R. made by the informant. They have further stated that ~he petitioner has taken the informant at Raj Rappa Mandir and pretend to marry her and thereafter enjoyed her for whole night keeping her in his friend's house. Furthermore, as according to the prosecution case, when the petitioner has made physical relationship for the first time with the informant, she was minor. It has also come in the statement of the witnesses that the petitioner has made physical relationship with the informant forcibly. Therefore, at this stage it cannot be decided whether the petitioner forcibly made physical relationship with the informant or not and whether the informant at the said point of time was minor and being the minor, her consent has no value in eye or law. It is wholly a matter of trial. Furthermore, it has come in the statements of the witnesses that the petitioner has made physical relationship forcibly with the informant. Considering all these aspect, I am not inclined to interfere with the impugned order. Accordingly, the revision application is dismissed.