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2012 DIGILAW 578 (RAJ)

Kallu Ram v. State of Rajasthan

2012-03-02

R.S.CHAUHAN

body2012
Hon'ble CHAUHAN, J.—The petitioner is aggrieved by the order dated 26.11.2011 passed by the Sessions Judge, Merta whereby the learned Judge has framed the charges for offences under Sections 363, 366A, 384, 376(2)(g) and 120B IPC against the petitioner. 2. The brief facts of the case are that on 26.04.2011, Krishna Ram lodged a FIR wherein he claimed that in the night of 24.04.2011, his daughter, the prosecutrix (name withheld) was sleeping with her sister-in-law in his house. However, in the morning, they did not find his daughter in the house. He has suspicion that she may have been enticed and taken away by Bhanwar Lal and Nemaram. A formal FIR was chalked out for offences under Sections 363, 366A and 120B IPC. However, subsequently after the recovery of the prosecutrix, offences under Sections 376 (2)(g) and 384 IPc were also added. After a thorough investigation, the police submitted a charge-sheet against the present petitioner and Suganaram. After going through the evidence contained in the charge-sheet, vide order dated 26.11.2011, the learned Judge framed the charges mentioned-above. Hence, this petition before this Court. 3. The learned counsel for the petitioner has vehemently contended that there is no evidence in the charge-sheet for framing the charge under Section 376(2) (g) read with Section 120B IPC. According to the prosecutrix, she had been subjected to gang rape by Nemaram and Sadiq Master. Hence, the learned Judge has erred in framing the charge for offence under Section 376 (2)(g) read with Section 120B IPC. 4. On the other hand, the learned Public Prosecutor has contended that the prosecutrix in her statement recorded under Section 161 Cr.P.C., has clearly claimed that she was abducted by the petitioner along with other co-accused persons. She has further claimed that these persons had taken her to village Kosana and thereafter to village Pipar where she was forced to marry Nemaram. Subsequently, Nemaram, Sadiq Master and Megharam committed rape upon her. Thus, from her first statement given under Section 161 Cr.P.C., a strong suspicion does exist that the petitioner was involved in the conspiracy for abducting, for marrying and for eventually committing rape upon the prosecutrix by the other co-accused persons. Hence, the learned Judge was certainly justified in framing the charges for the aforementioned offences. 5. Thus, from her first statement given under Section 161 Cr.P.C., a strong suspicion does exist that the petitioner was involved in the conspiracy for abducting, for marrying and for eventually committing rape upon the prosecutrix by the other co-accused persons. Hence, the learned Judge was certainly justified in framing the charges for the aforementioned offences. 5. In the case of In the case of Sajjan Kumar vs. Central Bureau of Investigation ( (2010) 9 SCC 368 = 2010(4) RLW 3435 (SC)), the Hon'ble Supreme Court has reiterated the principles which should govern the framing of charge by the learned trial Court. It would be beneficial to reproduce the same :- 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 u/S. 227 Cr.P.C. has the undoubted power to sift and weigh the evide-nce 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. (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 if 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. A bare perusal of the statement given by the prosecutrix under Section 161 Cr.P.C., clearly reveals that she was abducted. The present petitioner was certainly present at the scene of crime. Moreover, according to her, she was taken by the petitioner and others to village Pipar where she was forced to marry Nemaram. Subsequently, according to her, she was ravished by Nemaram, Sadiq Master and Megharam. Thus, there is a strong suspicion that the petitioner has been involved in a conspiracy for commission of offences under Sections 363, 366A, 384, 376(2)(g) and 120B IPC. Therefore, this Court does not find any illegality or perversity in the impugned order dated 26.11.2011. 7. The petition is devoid of any merit; it is, hereby, dismissed.