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2014 DIGILAW 640 (RAJ)

Sondei @ Bhuj v. State of Rajasthan

2014-03-05

NISHA GUPTA

body2014
JUDGMENT : 1. Both these revision petitions arises out of a common order, hence are decided by this common order. For convenience the facts are taken from SB Cr. Revision Petition No. 763/2009. 2. These revision petitions have been filed against the order dated 25.3.2009 passed by Additional Sessions Judge (Fast Track) No.4, Bharatpur Head Quarter at Deeg in Sessions Case No. 36/2007 on the application under Section 319 Cr.P.C. whereby cognizance has been taken against the present petitioners for the offence under Sections 376 sub-clause (2) (g) and 114 IPC. 3. The short facts of the case are that complainant lodged a First Information Report No.282/2006 on 2.7.2006 for kidnapping of her daughter Pooja. During investigation, Pooja was recovered, her statements has been recorded under Section 161 and 164 Cr.PC and after investigation, charge-sheet has been filed against accused Jaikam for the offence under Section 363, 366, 376, 384 and 386 IPC and he has been charged for the same. During trial after examination of some of the witnesses including, Pooja, application under Section 319 Cr.P.C. has been moved and cognizance has been taken against the petitioner. Hence these petitions. 4. The contention of the present petitioners is that court below has committed serious error in passing the impugned order. The present petitioners have not been named in the First Information Report and first statement of Pooja recorded under Section 161 Cr.P.C. and also additional statement recorded twice of the prosecutrix, the date of the incident is 4.12.2005 after that Pooja has been recovered by her parents but at that time, nothing has been stated to the parents and after considerable delay when again Pooja was found missing, FIR has been lodged on 2.7.2006 in which suspicion has been shown on Shukbeer, Monu and Shameem, present petitioners have not been named in the First Information Report and statements during investigation, in court statements she has malafidely improved her version and court below has not considered the facts of the case in right perspective and impugned order is per verse and liable to be quashed and set aside.Per contra, the contention of the respondent and learned Public Prosecutor is that there is no infirmity in the impugned order. In the statements before Court specific allegations have been lodged against the present petitioners and no interference is needed. 5. In the statements before Court specific allegations have been lodged against the present petitioners and no interference is needed. 5. Heard the learned counsel for the parties and perused impugned order as well copies of the documents placed on record by counsel for the parties. 6. It is not in dispute that on 2.7.2006 father of the prosecutrix has lodged a First Information Report showing suspicion on Shukbeer, Monu and Shameem, no suspicion has been shown on the present petitioners. During investigation, the prosecutirx has been recovered and her first statement under Section 161 Cr.P.C has been recorded on 4.7.2006 in which she has stated that she has left home on her own wish and nobody is responsible for the same. Thereafter, her additional statements has been recorded on 17.6.2006, in this statement also, nothing has been stated in regard to the present petitioners and allegations have been levelled against Jaikam only. Again additional statement has been recorded on 6.9.2006 and Pooja has narrated the same statement which has been narrated on 17.6.2006 thereafter statement under Section 164 Cr.P.C has been recorded on 31.7.2006 in which for the first time, the allegations have been levelled against the present petitioners that Shokat Ali has raped her and other petitioner Sondei @ Bhuj has taken her to her house and same narration has been repeated before the Court. The father of the prosecutrix has been examined before the court below, he has stated that prior to two months of the impugned FIR, Pooja has left the house and she has been searched out at Mathura but he has specifically stated that at that time, Pooja has stated nothing about the offence. Statement of Suresh, father of the prosecutrix has been recorded number of times during investigation in which no allegations have been lodged against any of the present petitioners. Per contra, suspicion has been shown against Shukbeer, Monu and Shameem and same is the situation with the evidence of Geeta Devi, mother of the prosecutrix who has categorically stated that when Pooja has recovered earlier she has not stated anything that any incident has taken place against her. First time, in the court statement, Geeta Devi has implicated the present petitioners her statements have also been recorded thrice during the investigation and in all the three statements she has narrated a different story. First time, in the court statement, Geeta Devi has implicated the present petitioners her statements have also been recorded thrice during the investigation and in all the three statements she has narrated a different story. In the first statement she has shown suspicion on Shukbeer, Monu and Shameem. In the second statement, she has shown her suspicion on Jaikam and in her third statement, she has alleged against Jaikam, admittedly nothing has been stated against the present petitioners. 7. The contention of the present petitioners is that powers under Section 319 Cr.P.C are extraordinary powers and should be exercised in exceptional cases and the present case does not fall in the said category. It is true that to invoke powers under Section 319 Cr.P.C, it is necessary that sufficient material be there which may ultimately prove the guilt of the accused and in the present case, there is no evidence against the present petitioners to prove their guilt. The basic requirement of Section 319 Cr.P.C is that the court must have reasonable satisfaction from the evidence collected during the trial that persons who are arrayed as accused has committed the offence and the satisfaction is necessary that evidence adduced on behalf of the prosecution remained unrebutted, would lead to conviction of the petitioners. Here in the present case, there is no such evidence which can be held reliable or which can lead to the conclusion that if the evidence remained rebutted, it would prove the guilt of the accused. Admittedly in FIR and in three consequtive statements of prosecutrix and her father and mother, nothing has been stated against the present petitioners. Incident is of 4.12.2005 whereas the present petitioners have been implicated first time on 31.7.2006 in statement under Section 164 Cr.P.C. of the prosecutrix after a significant delay, the prosecutrix was recovered after the incident and much before the lodging of the FIR but nothing has been stated against the present petitioners by the prosecutrix to the father and mother. Father and mother of the prosecutrix have also not stated anything before the Investigation Officer implicating the present petitioners. 8. Hence in the light of the above, nothing has been said against the present petitioners in the FIR. No convincing evidence has been placed by the prosecution to invoke the extraordinary jurisdiction of the Court. Father and mother of the prosecutrix have also not stated anything before the Investigation Officer implicating the present petitioners. 8. Hence in the light of the above, nothing has been said against the present petitioners in the FIR. No convincing evidence has been placed by the prosecution to invoke the extraordinary jurisdiction of the Court. The learned court below has not appreciated the evidence in right perspective only on finding a prima facie case, cognizance has been taken against the present petitioners which is against the settled proposition as laid down in Michael Machado & Anr. v. Central Bureau of Investigation & Anr., (2000) 3 SCC 262 wherein scope and limitations of Section 319 Cr.P.C. have been dealt with by the Apex Court and it has been held as under: "The basic requirements of Section 319 Cr.P.C is that the court must have reasonable satisfaction from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. But even then, what is conferred on the court is only a discretion as could be discerned from the words the court may proceed against such person. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons." 9. It must be remembered that there is no compelling duty on the court to proceed against other persons." 9. In the light of the above, by scanning of the evidence adduced in the present case, it can safely be inferred that there is no sufficient evidence to implead the present petitioners in the array of accused. 10. The complainant and learned Public Prosecutor has relied upon Master Devi Ram v. State of Rajasthan & Anr., 2008 (1) Cr.L.R. (Raj.) 278 where the petitioner has been named in FIR, specific weapon and specific role has been described in the FIR which is not the case here. Further reliance has been placed on Manju (Smt.) v. State of Raj. & ors., 2008 (1) Cr.L.R. (Raj.) 331 where looking to the sufficient evidence on record to show the involvement of the petitioners, application under Section 319 Cr.PC has been allowed. Here in the present case, there is no evidence against the present petitioners much less sufficient evidence to array them as accused. Further reliance has been placed on Y. Saraba Reddy v. Puthur Rami Reddy & Anr., (2007) 4 SCC 773 where it has been held that the satisfaction of the Investigation Officer is not determinative while deciding the application under Section 319 Cr.P.C. There is no dispute about this legal proposition. 11. In view of the above, the impugned order is per verse and liable to be set aside qua the petitioners.Consequently both these petitions succeed and are allowed. The impugned order dated dated 25.3.2009 passed by Additional Sessions Judge (Fast Track) No.4, Bharatpur Head Quarter at Deeg in Sessions Case No. 36/2007 qua the petitioners is quashed and set aside.