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2017 DIGILAW 2512 (RAJ)

PREM RAJ MEENA v. STATE OF RAJASTHAN

2017-11-15

SANDEEP MEHTA

body2017
ORDER : SANDEEP MEHTA, J. 1. By way of this revision, the petitioner accused Prem Raj Meena has approached this Court for challenging the order dated 03.06.2017 passed by the learned Additional Sessions Judge, Rajsamand in Sessions Case No. 32/2016 whereby, the learned trial court directed framing of charge against the petitioner for the offence under Section 376 IPC. 2. Notice of the revision has been served on the complainant respondent No. 2 but nobody has put in appearance on his behalf to argue the matter. 3. Facts in brief are that Chhog Singh respondent No. 2 lodged a written report at the Police Station Diver, District Rajsamand on 24.02.2016 alleging inter alia that he received a call on the very same day that his daughter Mst. 'P' was sitting in a destitute condition at the police station Diver. On this, the complainant immediately rushed to the police station with his wife and came to know that his daughter had been found roaming around carelessly at Deogarh Bus Stand. On inquiry being made from the girl, she disclosed that her teacher Prem Raj Meena had called her one day before the incident and advised her to take the bus for Karauli from Deogarh. On this, the girl went to Deograrh Bus Stand and was searching for the bus when the people saw her roaming around alone and being concerned about her welfare, she was brought to the police station. The girl divulged that three years earlier, when she was studying in Class 8th, Prem Raj Meena had established physical relations with her on numerous occasions and had sexually exploited her repeatedly after offering her an allurement of giving her money. The teacher had been transferred a month ago and right uptill then, he was continuously sexually exploiting the girl. In inquiry by police, the girl gave out her age to be 14 years. On the basis of this report, an FIR No. 26/2016 was registered at Police Station Diver, District Rajsamand for the offences under Section 376 IPC and Sections 4, 5 and 6 of the POCSO Act and investigation commenced. During investigation, when the girl was examined under Section 161 Cr.P.C., 1973 she stated that she started her education at the Government Sr. Secondary School, Bheragudha in the year 2001. She cleared the 8th Standard Examination from the very same school. During investigation, when the girl was examined under Section 161 Cr.P.C., 1973 she stated that she started her education at the Government Sr. Secondary School, Bheragudha in the year 2001. She cleared the 8th Standard Examination from the very same school. Prem Raj Meena came to be posted in the school in the year 2012-13. He was an English Teacher and thus, the victim and various other girls of the village, went to the rented room in the village Badhana where Prem Raj used to live. Prem Raj gave her lewd looks and touched her body, cheeks, etc. in an unchaste manner and also used to kiss her. Since Prem Raj was a teacher, she did not pay any attention to his unwarranted advances and did not oppose the same. A year after her marriage with Laxman Singh, she had been provided a Spice Mobile phone with a sim. On one particular day, Prem Raj called her on her mobile and asked her to come to his room at Badhana. She went to the rented room of Prem Raj located near Raj Marg Hotel at Baghana on her bicycle. Prem Raj was all alone in the room. He caught hold of the prosecutrix and despite her opposition, forcefully pushed her down on the cot, opened her leggings and subjected her to forcible intercourse. Prem Raj threatened that she should not divulge the incident to anybody. Fearing the threats, she did not tell her father about the incident. The prosecution and Prem Raj were in touch over mobile phone. On 24.02.2016, she called Prem Raj and requested him that she wanted to visit his house on the occasion of his sister's wedding. On this, Prem Raj told her that she should board a bus and promised that he would marry her. She was threatened that in case, she did not accede to his demands, she would be maligned in the society. On 24.02.2016, the prosecutrix took a tempo from her village at 11 O 'Clock' and went to Deogarh bus stand. There she was inquiring about the bus going to Karauli. While she was making inquiries, the booking clerk gave a call to the Deogarh Police who took her to the police station. From there, her parents were called and then, she divulged the entire sequence of events to the police and the report was lodged. There she was inquiring about the bus going to Karauli. While she was making inquiries, the booking clerk gave a call to the Deogarh Police who took her to the police station. From there, her parents were called and then, she divulged the entire sequence of events to the police and the report was lodged. In the said statement, the victim categorically gave out her age to be 20 years. In the concluding part of the statement, she stated that about an year ago, Prem Raj called her to his room under the pretext of meeting her and then subjected to sexual intercourse against her desire. The victim's statement was recorded under Section 164 Cr.P.C., 1973 on 29.02.2016. In the said statement, she categorically stated that Prem Raj, Mitthu Singh, Kailash and Madhu Singh used to come at her school for teaching them. Prem Raj Meena was an English Teacher. She was married to Laxman Singh. She categorically stated that Prem Raj never called her to his room and that he never subjected her to sexual intercourse. She emphatecially stated that Prem Raj Meena interacted with her only while she was studying in the school and never thereafter. He never indulged in any untoward act with her. 4. Be that as it may. Inspite of these categoric admissions made by the prosecutrix in her statement recorded under Section 164 Cr.P.C., 1973 the investigating officer proceeded to file a charge-sheet against the accused petitioner for the offence under Section 376 IPC. The learned trial court directed framing of charge against the petitioner for the offence under Section 376 IPC by order dated 03.06.2017 which is under challenge in this revision. 5. I have heard and considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record as well as the impugned order. 6. While considering the aspect of charges, the learned Trial Judge, relied upon the victim's statement recorded under Section 161 Cr.P.C., 1973 and came to a conclusion that the said statement gave rise to an inference that the victim had been subjected to forcible sexual intercourse by the petitioner and thus, he should be charged and tried for the offence under Section 376 IPC. The Trial Judge totally ignored the victim's statement recorded under Section 164 Cr.P.C., 1973 and chose to rely on the one recorded by the police under Section 161 Cr.P.C., 1973 while passing the impugned order. 7. Having appreciated the entirety of the facts and circumstances as available on record, this Court is of the opinion that though both the statements of the victim, one recorded under Section 161 Cr.P.C., 1973 and the other recorded under Section 164 Cr.P.C., 1973 fall within the category of previous statements but without any doubt, the statement recorded under Section 164 Cr.P.C., 1973 cannot be outright eschewed from consideration while considering the aspect of charge as the same is recorded on oath. It need not be gainsaid that benefit of any infirmity or lacuna in the prosecution case has to go to the accused. Since the prosecutrix virtually exonerated the accused in her statement recorded by the learned Magistrate under Section 164 Cr.P.C., 1973 the said statement has to be given credence. Further, even if the victim's statement recorded under Section 161 Cr.P.C., 1973 is considered then also, apparently the circumstances mentioned therein indicate that purely consensual relations were established between the victim and the accused petitioner herein. The victim gave out her age in both the statements as 20 years. Though the FIR was registered for the offences under the POCSO Act, the investigating officer, did not file a charge-sheet for the offence thereunder. The victim admitted that despite being married to Laxman Singh, she used to visit the rented room of the accused voluntarily. On the fateful day, on a simple call given by the accused, she readily went to his rented room and the accused allegedly subjected her to sexual intercourse against her desire. Had there been an iota of truth in this allegation, there was nothing to prevent the victim from disclosing the incident to her parents or her husband. The victim's silence for a period of nearly one year clearly indicates that the relations, if any, established between her and the accused were purely consensual. 8. In this background, I am of the firm opinion that the learned Trial Judge was totally unjustified in directing framing charge against the accused petitioner for the offence under Section 376 IPC. The victim's silence for a period of nearly one year clearly indicates that the relations, if any, established between her and the accused were purely consensual. 8. In this background, I am of the firm opinion that the learned Trial Judge was totally unjustified in directing framing charge against the accused petitioner for the offence under Section 376 IPC. Ex-facie, the circumstances available on record are sufficient to satisfy the court that there is absolute lack of connecting material on the record so as to justify framing of the sole charge against the petitioner for the said offence because (a), the sequence of events set out in the victim's statement recorded under Section 161 Cr.P.C., 1973 gives clear inference of consensual sexual relations and (b) in the statement recorded under Section 164 Cr.P.C., 1973 there is a categoric denial of her having been subjected to sexual intercourse by the present petitioner. 9. In view of the above discussion, the instant revision deserves to be and is hereby allowed. The impugned order dated 03.06.2017 passed by the learned Additional Sessions Judge, Rajsamand whereby charge was framed against the petitioner for the offence under Section 376 IPC is hereby quashed and set aside. The petitioner is discharged from the said offence.