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2017 DIGILAW 2591 (RAJ)

Pawan Kumar v. State Of Rajasthan

2017-11-24

SANDEEP MEHTA

body2017
JUDGMENT Sandeep Mehta, J. - Heard learned counsel for the accused petitioners and learned Public Prosecutor and learned counsel representing the respondent complainant. Perused the material available on record. 2. These two petitions under Section 482 Cr.P.C., 1973 are directed against the order dated 20.05.2017 passed by the learned Additional Sessions Judge No.1, Sri Ganganagar in two separate revisions preferred by the accused petitioners against the order dated 01.10.2015 passed by the learned Chief Judicial Magistrate, Sri Ganganagar in Criminal Case NO.484/2014 whereby, charges were framed against the petitioner Ritu @ Rita for the offence under Section 342 read with Section 120B IPC and against the petitioner Pawan Kumar for the offences under Sections 497, 456, 342 and 120B IPC. 3. Shri Pankaj Sharma, learned counsel representing the petitioners advanced the following contentions for challenging the impugned orders: (1) that the essential ingredients of the offence of lurking house-trespass at night are not made out from the admitted prosecution allegation so as to justify the order framing charge for the offence under Section 456 IPC, (2) that the complainant was having access to a second door from the bed where he was allegedly confined in and thus, the charge under Section 342 read with Section 120-B IPC is not made out, and (3) that there is no allegation of the complainant Shivraj Ojha that he actually saw the two petitioners indulging in sexual intercourse and hence, the charge under Section 497 IPC cannot be sustained. 4. In support of his arguments, Shri Sharma relied upon the Orissa High Court judgment in the case of Bijoy Kumar Mohapatra & Ors. v. The State, reported in 1982 Cr.L.J. 2162 and urged that the impugned orders are bad in the eye of law and deserve to be quashed and set aside and the accused petitioners should be discharged in toto. 5. Per contra, learned Public Prosecutor and learned counsel representing the complainant vehemently opposed the submissions advanced by the petitioners'' counsel. They urge that the complainant Shivraj was sleeping in his house in the dead of the night. He suddenly woke up at about 3.30 a.m. and realized that his wife (the petitioner Ritu @ Rita) was not in the room and the bed had been arranged in such a manner to given an impression that someone was sleeping on it. The main access door of the bedroom was bolted from the outside. He suddenly woke up at about 3.30 a.m. and realized that his wife (the petitioner Ritu @ Rita) was not in the room and the bed had been arranged in such a manner to given an impression that someone was sleeping on it. The main access door of the bedroom was bolted from the outside. The complainant who had been locked and wrongfully confined, searched for an exit out of the room and finally could come out from the door of the bathroom which is not the normal exit route provided for the bedroom wherein the complainant was sleeping. When he reached the terrace of his house, he saw the accused petitioners intimated with each other in a semi-nude condition. 6. Shri Purohit urges (1) that admittedly the door through the bathroom does not provide a regular access to the complainant''s bedroom and by bolting the main door of the bedroom so as to prevent the complainant from coming out of the room, he was wrongly confined by the accused. (2) that the accused petitioner Rita provided clandestine access to the accused petitioner Pawan Kumar into the house owned by the complainant in the dead of the night and the petitioner Pawan Kumar, who had come with the intention to indulge in an adulterous affair with the complainant''s wife. Thus, Pawan Kumar is guilty of the offence under Section 456 IPC. (3) Both the accused were seen in a semi-nude compromising condition and thus, the offence under Section 497 IPC is also made out. Thus, he urges that all the offences are made out against the petitioners from the evidence available on record and hence, this Court should not feel persuaded to interfere in the impugned orders. 7. Firstly, the argument advanced by Shri Sharma regarding the offence under Section 456 IPC not being made out is taken up. Presence of the petitioner Pawan Kumar on the terrace of the complainant''s house in the dead of the night is undoubtedly covered within the definition of lurking house-trespass as provided under Section 451 IPC because he clandestinely entered into the property of the complainant with the intention to indulge in illicit carnal intercourse with the complainant''s wife which amounts to the offence of adultery. The facts that the time chosen was 3.30 a.m. and the complainant was locked into his bedroom, definitely bring the acts of the accused within the mischief of lurking house-trespass punishable under Section 456 IPC because the entry was undoubtedly made by the accused after taking offensive measures to conceal discovery by the complainant. 8. The fact that the main door of the complainant''s bedroom was locked up from the outside and he was forced to take the alternate route through the bathroom clearly covers the act of the accused within the definition of wrongful confinement within the mischief of Sections 341 and 342 IPC because the complainant was forced to exit the room through the bathroom, which is not the normal approach to the bedroom. Thus, offence under Section 342 IPC is also made out against the accused. So far as the offence under Section 497 IPC is concerned, true it is that the complainant did not pertinently allege that the accused were actually indulging in sexual intercourse but then the fact that the they were seen by the complainant on the terrace of his house at 3.30 a.m. in a semi-nude compromising position definitely gives rise to a strong suspicion that they must have indulged in sexual intercourse. The preceding acts of the accused before the complainant discovered them would undoubtedly be in their exclusive knowledge themselves and hence, they would have to refute this charge in view of the presumption available under Section 106 of the Evidence Act. 9. As a consequence of the above discussion, I find no illegality, infirmity or shortcoming in the impugned orders warranting interference therein while exercising inherent powers of this Hon''ble Court. Needless to say that none of the above observations shall prejudice the defences available to the accused at the trial. 10. With these observations, these misc. petitions and the stay applications filed under Section 482 Cr.P.C., 1973 are dismissed as being devoid of merit. A copy of this order be placed in each file.