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Madhya Pradesh High Court · body

2016 DIGILAW 1169 (MP)

Shankar Parwani v. State of M. P.

2016-12-20

RAJEEV KUMAR DUBEY

body2016
ORDER 1. This criminal revision has been filed against the order dated 22.4.2016 passed by 13th Additional Sessions Judge. Indore in S.T. No.277/2015, whereby the application filed under section 319 CrPC by the respondent/State to take cognizance against the applicant for the offences under sections 363, 376, 506 of IPC and under sections 3/4, 16/17 and 21 of the Protection of Children from Sexual Offences Act was allowed. 2. Brief facts of the case are that on 7.8.2015 the prosecutrix lodged a report at Police Station, Tukoganj, Indore stating that she used to go to the house of Mr. Hanuman Prasad Mishra of Ahilyamata Colony for the purpose of English Coaching. One day she met a boy standing near park of Ahilyamata Colony, who proposed her for friendship, but she denied. The boy followed her for 3-4 days regularly and made repeated requests for friendship. On 29.7.2015 at 7.00 p.m. while going to coaching he met her near park and offered her to come with him. He disclosed his name as Suraj Verma and told that he resided near her residence. Thereafter, Suraj took her to MS Hotel, near Sarwate Bus Stand, Indore on Scooter, where he committed rape on her. He threatened her for not disclosing the fact of commission of rape to anyone. thereafter, she stopped going to coaching and after 8-10 days, she disclosed the fact of commission of rape to her mother Laxmi and aunty Premlata and lodged the report. On the report Police Tukoganj registered Crime No.513/2016 against Suraj @ Sonu Verma under sections 363, 376, 506 of IPC and under section 3/4 of the Protection of Childen from Sexual Offences Act and investigated the matter. During investigation it was revealed that at the time of incident Surendra Kumar was on duty, who made room available to Suraj in the hotel. After investigation challan was filed against Suraj Verma and Surendra. On that challan S.T. No.277/2015 was registered and learned Additional Sessions Judge learned charges against accused applicant Suraj Verma under sections 366, 376(2)(1) of IPC and under section 212 IPC against Surendra and tried them. 3. During trial after statement of prosecutrix PW1 before the Court prosecution filed an application under section 319 of CrPC to take cognizance against the applicant. 3. During trial after statement of prosecutrix PW1 before the Court prosecution filed an application under section 319 of CrPC to take cognizance against the applicant. On that application learned Additional Sessions Judge took cognizance against the applicant holding that Police had made Surendra Kumar accused on the ground that he availed Suraj @ Sonu of a room in MS Hotel, where he committed rape with the prosecutrix while in their statements prosecutrix PW1 and her mother Laxmi (PW2) clearly deposed that Suraj Verma took her to MS Hotel situated near Sarvate Bus Stand, where owner of the notel was present. After paying Rs.500/- to the owner he made room available to Suraj, where Suraj committed rape with the prosecutrix. It is also clear from the case diary statement of applicant Shankar that his duty in hotel was from 12.00 p.m. to 9.00 p.m. So from the case diary statements of Ashish Shukla, Bheru, Durgesh Dhope and applicant it appears that from12.00 p.m. to 9.00 p.m. applicant was on duty at the hotel and accused Suraj took room from the applicant only. So taking cognizance trial Court issued arrest warrant against him. Being aggrieved by the impugned order the present revision has been filed. 4. Learned counsel for the applicant submitted that prosecution case is that co-accused Surendra after receipt of Rs.500/- provided room to Sonu. During investigation Police recorded the statements of accused applicant, Ashish Shukla, Bheru, and Durgesh Dhope and found that Surendra Kumar who was Supervisor in the hotel made room available to Suraj. Police made him accused in the case on the allegation of providing room to accused Suraj. 5. During investigation the Police also recorded the statements of prosecutrix under section 161 of CrPC and got the statements of prosecutrix recorded under section 164 CrPC before the Magistrate wherein prosecutrix deposed that Suraj paid Rs.500/- to the person who was sitting at the counter and opened the room for one hour. During trial on 2.4.2016 prosecutrix deposed that Sonu took her to MS Hotel where owner of the hotel was present. The statements of prosecutrix and her mother are apparently not believable as they denied to identify Surendra Kumar and stated that Suraj gave Rs.500/- to the owner of the hotel, which is contrary to the previous statements and the case of prosecution. The statements of prosecutrix and her mother are apparently not believable as they denied to identify Surendra Kumar and stated that Suraj gave Rs.500/- to the owner of the hotel, which is contrary to the previous statements and the case of prosecution. No test identification parade was carried out during investigation to identify that who were present at the relevant time at the counter of MS Hotel. Learned trial Court failed to consider that the prosecutrix and her mother tried to save accused Surendra Kumar and therefore, denied to identify him in the Court and falsely stated that money was give to owner of the hotel. The prosecutrix and her mother were not aware of who the owner was. So only on the basis of the statements of prosecutrix and her mother the applicant should not be proceeded in the matter. 6. Learned Panel Lawyer has opposed the prayer and submitted that learned trial Court after appreciating the evidence that came on record during trial rightly made the application accused. 7. In this regard, learned counsel for the applicant relied on the apex Court judgment passed in Babubhai Bhimabhai Bokhiria and another v. State of Gujrat and others, reported in 2014 CriLJ 2290, in which the Hon’ble apex Court held that mere suspicion is not sufficient to make any person accused under section 319 of CrPC. 8. A constitutional bench of Hon’ble apex Court in Hardeep Singh v. State of Punjab and others [ (2014)3 SCC 92 ], also held that power under section 319 CrPC is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner. 9. It appeared from the record that prosecution filed charge sheet against Surendra Kumar stating that at the time of incident Surendra Kumar was present at the hotel counter and he provided room to Suraj. 9. It appeared from the record that prosecution filed charge sheet against Surendra Kumar stating that at the time of incident Surendra Kumar was present at the hotel counter and he provided room to Suraj. Even in her case diary statement of prosecutrix (PW1) only it is mentioned that Suraj took her at MS Hotel where he hired room for one hour for Rs.500/- and took her in the room and committed rape with her. It is nowhere mentioned in her statement that when Suraj took her at MS Hotel the owner of the hotel was present there who gave room to Suraj. The prosecutrix in the Court deposed it for the first time that Suraj took room from owner of MS Hotel. Even in that statement it is not mentioned whether prior to the incident she knew who the owner of the hotel was and what his name was. So only on the ground that prosecutrix (PW1) deposed in her Court statement that owner of the hotel provided room to Suraj, it cannot be presumed that the person who provided room to Suraj, is the present applicant, therefore, in the opinion of this Court there is no strong and cogent evidence against applicant from the evidence led before the Court that such power should be exercised trial Court wrongly took the cognizance against the present applicant. So revision is allowed and order passed by the trial Court against the present applicant dated 22.4.2016 passed in S.T. No.277/2015 is hereby quashed. 10. Accordingly, this revision is disposed of.