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2013 DIGILAW 312 (RAJ)

Basant Kunwar @ Anita v. Guljarilal Saraswat

2013-02-07

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant miscellaneous petition has been filed by the petitioner against the order dated 22.2.2010 passed by the learned Addl. Sessions Judge No. 3, Udaipur in revision affirming the order dated 10.11.2008 passed by the learned Addl. Chief Judicial Magistrate No. 2, Udaipur accepting the Final Report No. 65/2006 filed after investigation of the F.I.R. No. 194/2006 of the P.S. Amba Mata, Distt. Udaipur. The police after investigation of the F.I.R. filed by the petitioner submitted a final report which was accepted by the learned Addl. Chief Judicial Magistrate and the learned Revisional Court has upheld the order passed by the learned ACJM. Now, the petitioner complainant has approached this Court by way of the instant miscellaneous petition seeking a direction that the respondent No. 1 should be prosecuted for the offences in relation whereof the F.I.R. had been filed. 2. Succinctly stated the facts of the case are that the petitioner filed a complaint in the Court of ACJM No: 2, Udaipur on 20.3.2006. The complaint was forwarded to the Police Station Amba Mata, Udaipur under Section 156(3) Cr.P.C. whereupon F.I.R. No. 194/2006 was registered and the police after thorough investigation of the matter filed a final report in the Court being F.R. No. 65/2006. The allegation as levelled by the petitioner complainant in the complaint was that her husband had expired in the year 1996. Thereafter in order to make ends meet, she started working in the Hansraj Finance and Consultants Section 12, Savina, Udaipur. She further alleged that the accused used to frequently visit the Finance Company as he had invested some money in the company. The complainant alleged that she became familiar with the respondent No. 1 because of his regular visits to the Finance Company, She also alleged that the respondent No. 1 who was a retired police officer showing sympathy towards the complainant's poor condition, advanced a sum of Rs. 50,000/- on 24.3.2000 as loan for redemption of her mortgaged house and as a security took into his possession, the complainant's F.D.R. worth Rs. 80,000/-. 3. The complainant further alleged that she returned most of the loan amount to the respondent by making payment of small instalments from time to time and only a sum of Rs. 6,000/- remained due. 50,000/- on 24.3.2000 as loan for redemption of her mortgaged house and as a security took into his possession, the complainant's F.D.R. worth Rs. 80,000/-. 3. The complainant further alleged that she returned most of the loan amount to the respondent by making payment of small instalments from time to time and only a sum of Rs. 6,000/- remained due. However, the accused did not return back her F.D.R. The accused hatched a sinister plan and called her to his house on 6.4.2005 under the pretext of returning the F.D.R. The complainant informed this fact to Mumtaz and reached at Savina Fatak at 11 Oclock. The accused took her to his house at Amba Mata. Nobody else was present in the house. The accused offered her water to drink and as soon as she consumed the same she became unconscious. After she became unconscious, the accused committed.rape upon her. When she regained senses about 20-30 minutes later, she saw' that her clothes were in a dishevel ed state. She confronted the accused and asked him as to why she had been ravished, on this the accused told her that he had recorded a video film of the act and that she would have to come to the accused as and when called. The accused once again committed rape upon her in April. 4. The case was registered as F.I.R. No. 194 dated 22.4.2006 for the offences under Sections 347, 376, 420, 498 and 509 I.P.C. and investigation commenced. After completion of the investigation, the police gave a final report finding the case to be totally false. The complainant filed a protest petition and examined herself, Mumtaz and Akbar in support of her case. The learned Magistrate after hearing the arguments advanced by the counsel for the complainant, by a detailed reasoned order accepted the final report and rejected the protest petition. The learned Magistrate held that the F.I.R. as a vendetta because of the dispute going on between the parties in relation to financial transactions. The allegation that the accused called the complainant to his house under the pretext of returning back the F.D.R. and the prosecutrix going to his house was found to be unbelievable. The learned Magistrate held that the F.I.R. as a vendetta because of the dispute going on between the parties in relation to financial transactions. The allegation that the accused called the complainant to his house under the pretext of returning back the F.D.R. and the prosecutrix going to his house was found to be unbelievable. The trial Court also found that the conduct of the prosecutrix after the alleged act of rape was also unnatural inasmuch as she stated that after the act of rape, she requested the accused to drop her back to her house. The learned trial Court also found that the allegation regarding the accused having committed rape with the prosecutrix once more in the month of April was also not worthy, of credence because it was not believable as to why the prosecutrix would fall in the trap of the accused on a second occasion when the accused had already forcibly ravished her once. The trial Court also found that the Investigating Agency collected material to the effect that after the incident, the prosecutrix kept silent for almost six months and for the first time in November, 2005, she is alleged to have sent some representations against the accused. The trial Court also found that the allegation of the complainant was highly doubtful because she mentioned in her statement that in November, 2005 the accused called her son for driving his car and she easily consented for the same. The learned trial Court also found that the police had not recovered any recording of the indecent video clips allegedly recorded by the accused. As regards the witness Mumtaz, the learned trial Court found that he was the mediator between the prosecutrix and the respondent in regard to transaction of money. He had given a cheque to the accused which was bounced and thereafter a notice of the bouncing was given by the respondent Gulzari Lal to Mumtaz Khan. Thus, the witness was having an axe to grind against the accused. The trial Court also discussed the testimony of the third witness Akbar Khan and arrived to the conclusion that he did not state regarding any act of rape having been committed by the accused on the complainant. 5. Thus, the witness was having an axe to grind against the accused. The trial Court also discussed the testimony of the third witness Akbar Khan and arrived to the conclusion that he did not state regarding any act of rape having been committed by the accused on the complainant. 5. The trial Court also took note of the evidence which was collected during investigation to the effect that a notice was issued by the accused to the complainant and the mediator Mumtaz on 18.11.2005 and thereafter the prosecutrix gave information of the alleged rape at the Police Station. 6. Ultimately, the trial Court came to the conclusion that the whole case as set up by the complainant in her complaint and the statements of the witnesses recorded under Section 200/202 Cr.P.C. was as a matter of fact nothing but an act of vengeance aimed at taking revenge upon the accused because of the fallout of the money transactions between the parties. The order passed by the trial Court has been affirmed by the Revisional Court and it has also examined the material available on record in detail. The Court observed that for the incident of 6.4.2005, the complaint was filed for the first time in the Court on 2.3.2006. In the intervening period there were many interactions between the accused and the complainant even to the extent of complainant sending tier son to drive the car of the accused. The Court thus concluded that the case of the complainant was patently false and the police rightly filed a final report in the matter after investigation. Now, the complainant has approached this Court by way of the instant miscellaneous petition against both the orders referred to above. 7. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the orders impugned as well as the record. 8. The contention of the learned counsel for the petitioner is that at the stage of cognizance only the existence of prima facie case is to be seen and nothing beyond that. Learned counsel submits that as there is a specific allegation of the complainant regarding her having been forcibly ravished by the accused after intoxicating her, the learned trial Court as well as the Revisional Court have committed a grave error in going into minute details for the purpose of shifting the prosecution launched by the complainant as its inception. Learned counsel submits that as there is a specific allegation of the complainant regarding her having been forcibly ravished by the accused after intoxicating her, the learned trial Court as well as the Revisional Court have committed a grave error in going into minute details for the purpose of shifting the prosecution launched by the complainant as its inception. Learned counsel submits that there is a specific allegation of rape levelled against the accused in the complaint as well as in the complainant's statement recorded under Section 200 Cr.P.C. He thus prays that the orders passed by the Courts below be quashed and a direction be issued to the trial Court for summoning the accused for the offence referred to in the complaint. 9. Heard and considered the arguments advanced at the bar. From a perusal of the orders impugned, it is apparent that the alleged incident of rape is' said to have taken place on 6.4.2005 and once again in the month of April. The complainant a 41 years old educated lady was working in a Finance Company and transaction of exchange of money had taken place between the complainant and the accused long before the alleged act of rape. It is not disputed that the complainant was in debt to the accused. The case as set up. by the complainant that in order to return back the F.D.R. of the complainant, the accused called her to his own house is prima facie not palpable and believable. The F.D.R. is not such a thing which could not have been returned to the complainant even at her work place. She has admitted that the accused used to frequently visit her work place. The story put up by the complainant in her F.I.R. is highly suspicious more particularly looking to the fact that for an incident of rape said to have been committed in April, 2005, the complaint has beep filed after a great delay of nearly 11 months. Not only this, during this period, the complainant has sent her son to the house of the accused for driving his vehicle. This conduct is totally against normal human behaviour. It is impossible to believe as to why an educated woman who. had allegedly been sexually ravished by somebody would send her grown up son to the house of such a person for assisting him. This conduct is totally against normal human behaviour. It is impossible to believe as to why an educated woman who. had allegedly been sexually ravished by somebody would send her grown up son to the house of such a person for assisting him. Thus, the conclusion of the police that the prosecution was launched by the complainant for oblique motives cannot be said to be unjustified or unacceptable. Two Courts below have already exercised their discretion by detailed well reasoned orders and have rejected the theory of the complainant that she was subjected to forcible rape by the accused. The trial Court as well as the Revisional Court have rightly rejected the allegation of the complainant regarding her having been raped. Therefore, this Court is of the opinion that there is no force in the miscellaneous petition and the same deserves to be dismissed.Accordingly, the miscellaneous petition being bereft of any force is dismissed.Petition dismissed. *******