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2014 DIGILAW 1293 (HP)

State of H. P. v. Bhupinder Singh

2014-09-18

RAJIV SHARMA

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Judgment : Justice Rajiv Sharma, J. This Criminal Revision Petition is instituted against the judgment/order dated 7.1.2008, rendered by the learned Sessions Judge, Bilaspur, H.P., in Sessions Trial No. 42 of 2006. 2. Key facts, necessary for the adjudication of this Criminal Revision are that FIR No. 60 of 2005 dated 1.4.2005 was registered at Police Station Ghumarwin, on the basis of application filed by the prosecutrix. According to the case of the prosecution, the prosecutrix had gone to Ghumarwin hospital in the year 2004 for routine check up alongwith her husband. They got acquaintance with the doctor (hereinafter referred to as the accused). The accused called them to his house and in consequence thereof, they visited the house of doctor on 13.5.2004. Both the families started visiting each others house. The prosecutrix suffered from Typhoid. She went to the hospital alongwith her son. The accused was on night duty. He asked them to sit in the Doctors’ duty room. After arranging the tea, the accused went away. When she took the tea, she started feeling giddiness. She enquired from the accused as to what was happening, he told that it was due to weakness. The accused gave her two injections and she did not know what happened thereafter. When she got up, she found her Salwar kept on one side and blood was on the bed sheet of the hospital. The underwear of the accused was stained with blood. On that day, she was undergoing menstrual course. Thereafter, the accused kept on having sex with her at different places including hotels and Rest Houses. She became pregnant. She went to the hospital for aborting the pregnancy. Although the prosecutrix asked the accused to have Court marriage with her but on the advice of the Advocates, he told that if he solemnizes second marriage, he would be suspended. 3. The case was investigated by the police. Various documents were taken into possession. The challan was put up in the Court of Addl. C.J.M., Ghumarwin on 3.12.2005. The learned Addl. C.J.M., Ghumarwin, committed the matter to the learned Sessions Judge, Bilaspur, vide order dated 1.11.2006. The matter came up before the learned Sessions Judge for framing of charge. The learned Addl. Sessions Judge, after sifting the entire evidence did not frame any charge against the accused under Section 376(2)(d) and 506 IPC, on the basis of FIR No. 60 of 2005. The matter came up before the learned Sessions Judge for framing of charge. The learned Addl. Sessions Judge, after sifting the entire evidence did not frame any charge against the accused under Section 376(2)(d) and 506 IPC, on the basis of FIR No. 60 of 2005. 4. I have gone through the records of the case including FIR dated 1.4.2005. It is not mentioned in the FIR as to on which date, month or year, the accused had committed rape on the victim. According to the averments contained in the FIR, the accused was having regular sex with her. She was rather consenting party. She infact wanted to marry with the accused. However, the accused had declined to marry her. 5. It cannot be believed that a woman would go to the hospital suffering from Typhoid at night. She should have gone with her husband and not with her child aged 11 years. The events started unfolding from the year 2004. However, the FIR was registered only on 1.4.2005. The prosecutrix has not even mentioned the date when she visited the Ghumarwin hospital for the first time. The learned Sessions Judge, Bilaspur, has rightly come to the conclusion that the prosecutrix was consenting party to the alleged acts of sexual intercourse with the accused. The prosecutrix and the accused both were married. There were no probable grounds for presuming that the accused had committed offence under Section 376 (2)(d) and 506 IPC. He was rightly discharged of the offence vide impugned order date 7.1.2008. The version of the prosecutrix does not inspire confidence at all. 6. Their lordships’ of the Hon’ble Supreme Court in the case of State of Bihar vrs. Ramesh Singh, reported in (1977) 4 SCC 39 , have laid down the following test and considerations while ordering discharge of the accused or to proceed with the trial as under: “5. In Nirmaljit Singh Hoon vrs. 6. Their lordships’ of the Hon’ble Supreme Court in the case of State of Bihar vrs. Ramesh Singh, reported in (1977) 4 SCC 39 , have laid down the following test and considerations while ordering discharge of the accused or to proceed with the trial as under: “5. In Nirmaljit Singh Hoon vrs. State of West Bengal—Shelat, J. delivering the judgment on behalf of the majority of the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prokash Chandra Bose – where this Court was held to have laid down with reference to the similar provisions contained in Sections 202 and 203 of the Code of Criminal Procedure, 1898 “that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused”. Illustratively, Shelat, J., further added “Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case”. 7. Their lordships’ of the Hon’ble Supreme Court in the case of Union of India vrs. Prafulla Kumar Samal and another, reported in (1979) 3 SCC 4 , have explained the scope and ambit of Section 227 Cr.P.C. as under: “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; (2) 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. (3) The test of determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. (3) The test of determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouth-piece 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 8. Their lordships’ of the Hon’ble Supreme Court in the case of Dilawar Bsalu Kurane vrs. State of Maharashtra, reported in (2002) 2 SCC 135 , have held that the function of the Judge, while exercising power under Section 227 Cr.P.C., is not to act as a post office or a mouthpiece of the prosecution but has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. When two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he can discharge the accused. Their lordships’ have held as under: “12. Now the next question is whether a prima facie case has been made out against the appellant. When two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he can discharge the accused. Their lordships’ have held as under: “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Sec. 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; 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; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Sec. 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. [See Union of India vs. Prafulla Kumar Samal & Anr., (1979 3 SCC 5)].” 9. The Delhi High Court in the case of Sushil Ansal vrs. State, reported in 2002 Cri. L.J. 1369, held that the order for discharge is permissible only in those cases where the Court is satisfied that there are no chances of conviction of accused and trial would be an exercise in futility. In the instant case, after sifting through the evidence, there are no chances of conviction of the accused. The Court is not to weigh the evidence adduced before the trial Court but is to sift the evidence to find out prima facie case against the accused. In the instant case, after sifting through the evidence, there are no chances of conviction of the accused. The Court is not to weigh the evidence adduced before the trial Court but is to sift the evidence to find out prima facie case against the accused. In those cases, where it appears to the Court that the continuation of the proceedings would result in futility, the same should be closed. 10. Accordingly, there is no merit in the present revision petition, the same is dismissed, so also the pending application(s), if any.