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2017 DIGILAW 2520 (RAJ)

Nosad Khan @ Sonu v. State of Rajasthan

2017-11-16

SANDEEP MEHTA

body2017
JUDGMENT : Sandeep Mehta, J. By way of this revision, the petitioner accused Nosad Khan @ Sonu has approached this Court for challenging the order dated 17.9.2016 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Jodhpur in Sessions Case No. 13/2016 whereby, charges were framed against the petitioner for the offences under Sections 363 and 366A I.P.C. 2. No-one has appeared to oppose the revision on behalf of the respondent No. 2 despite service. 3. Facts in brief:- The respondent No. 2 Dilip Khan lodged a report at the P.S. Mahamandir on 1.2.2016 alleging inter alia that the accused petitioner kidnapped his minor daughter Sushri 'R' on 31.1.2016 at about 2 O'clock and took her away to the village Sayla with the intention of establishing sexual relations with her. On the basis of this report, an F.I.R. No. 40/2016 was registered at the P.S. Mahamandir for the offences under Sections 363 and 366A I.P.C. The victim was traced out on the very day of filing of the report. Her statement was recorded by the Investigating Officer on the same day wherein she stated that the petitioner Nosad used to visit her aunt's house which was located in the neighbourhood for the last 4 to 5 months and thus, she knew him. On 31.1.2016 she had gone to Reliance Fresh Store for purchasing vegetables. She called Nosad Khan on mobile and told him that she was desirous of living with him and thus, he should come and take her away. On this, Nosad Khan came to the Krishi mandi on foot. From there, they voluntarily boarded a local city bus and went to the Bus Stand from where they took another bus and reached to Nosad Khan's village at about 8.30 PM. At that time, nobody was present in his house. Both of them took food and then went to sleep. Nosad did not commit any untoward act with her. She clearly expressed that she was desirous of marrying Nosad Khan but was afraid of her family members. Nosad had provided her a mobile phone which she had returned to him. The story appears to have taken a turn when the victim's statement was recorded under Section 164 Cr.P.C., 1973 on 3.2.2016. In such statement, the victim stated that she had gone to Reliance Fresh Store on 31.1.2016 at about 4 O'clock. Nosad had provided her a mobile phone which she had returned to him. The story appears to have taken a turn when the victim's statement was recorded under Section 164 Cr.P.C., 1973 on 3.2.2016. In such statement, the victim stated that she had gone to Reliance Fresh Store on 31.1.2016 at about 4 O'clock. There, a boy named Sonu (Nosad) met her. He gave her some intoxicant mixed in water which she consumed and became unconscious. The accused took her to some village and locked her inside a room. The Police came there and saved her. She categorically stated that she was unable to recall the exact scene and the manner in which, Sonu took her to his village. Based on these as pertions made by the victim in her statement recorded under Section 164 Cr.P.C., 1973 the Investigating Officer proceeded to file a charge-sheet against the petitioner for the offences under Sections 363 and 366A I.P.C. The learned trial court framed charge against the petitioner in the same terms by the impugned order dated 17.9.2016 which is assailed in the instant revision. 4. I have heard the arguments advanced by Shri Gokulesh Bohra representing the petitioner and the learned Public Prosecutor and have gone through the impugned order as well as the Challan papers. 5. Suffice is to say that both the previous statements of the victim available on the charge-sheet; one recorded under Section 161 Cr.P.C., 1973 and the other recorded under Section 164 Cr.P.C., 1973 are of the same evidentiary worth. Both are previous statements within the meaning of the Evidence Act. The first statement of the victim recorded on the very day of lodging of the F.I.R. clearly indicates that she herself called the accused and then voluntarily accompanied him to his village. If the said statement is considered as true on its face value, apparently the ingredients of the offences alleged are not made out against the accused. However, as stated above, the victim changed the story drastically while being examined under Section 164 Cr.P.C., 1973 as stated above. On appreciating the material available on record, this Court is of the firm opinion that the subsequent statement of the victim recorded under Section 164 Cr.P.C., 1973 is totally dubious and unbelievable. However, as stated above, the victim changed the story drastically while being examined under Section 164 Cr.P.C., 1973 as stated above. On appreciating the material available on record, this Court is of the firm opinion that the subsequent statement of the victim recorded under Section 164 Cr.P.C., 1973 is totally dubious and unbelievable. It is impossible to accept the aspersion that the accused gave some intoxicant mixed in water to the victim and that she became unconscious as a result thereof and was taken by the accused to his village Otwara in the District Jalore without the victim realising as to in what manner she travelled to reach there. Apparently, this allegation made by the victim in her statement recorded under Section 164 Cr.P.C., 1973 is a sheer embellishment and cannot be accepted by any stretch of imagination. In the natural course of events, the statement of the victim recorded under Section 161 Cr.P.C., 1973 seems to be more credible and the same manifestly does not give rise to the necessary inferences required to frame charge against the petitioner for the offences alleged. 6. In view of the above discussion, this Court is of the opinion that the impugned order dated 17.9.2016 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Jodhpur in Sessions Case No. 13/2016 whereby charges were framed against the petitioner for the offences under Sections 363 and 366A I.P.C. is bad in facts as well as in law and thus cannot be sustained. 7. Accordingly, the instant revision deserves to be and is hereby allowed. The impugned order dated 17.9.2016 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Jodhpur in Sessions Case No. 13/2016 is hereby quashed and set aside. The accused petitioner is discharged of these offences. 8. The record be returned to the trial court forthwith.