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2018 DIGILAW 2313 (RAJ)

Mahendra Dutt Sharma v. State of Rajasthan

2018-12-18

MANOJ KUMAR GARG

body2018
JUDGMENT Manoj Kumar Garg, J. - Instant revision petition under Section 397/401 Cr.P.C is directed against order dated dated 18.02.2008 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Hanumangarh in Criminal Case No. 220/2007 whereby, the learned trial court took cognizance against the petitioners for the offence under Section 376(1)IPC and Section 3(1)(x) of SC/ST (Prevention of atrocities) Act. 2. Facts giving rise to instant petition are that one complaint was filed by Fateh Singh on 12.02.2007 stating therein that on 09.03.2007 in the morning when he woke up, he found his daughter 'S' missing from his house. He searched for daughter but could not trace her. He was informed by someone that Mahendra S/o Atma Ram had taken away his daughter 'S' who is only 14 years old. The complainant further mentioned that Mahendra Poonia used to frequently visit his house. 3. A criminal case under Section 366, 363 IPC and Section 3(1) (x) of SC/ST (Prevention of Atrocities) Act was registered. During investigation, 'S' was recovered on 17.03.2007 alongwith Mahendra Poonia. In the statement recorded under Section 161 Cr.P.C,, 1973 S' mentioned that Mahendra Poonia took her forcibly on motorcycle and later on Mahendra married her forcibly and committed rape. On the basis of statement of respondent 'S', an offence under Section 376 IPC was added by the police and after investigation, the police filed charge sheet against Mahendra Poonia. 4. Thereafter, prosecutrix filed another complaint against the present petitioners Mahendra Dutt Sharma, Raj Kumar and Sher Singh before the court of Additional Chief Judicial Magistrate, Bhadra on 20.04.2007 stating therein that when she went outside her house, two persons standing outside took her forcibly on motorcycle, out of which one was Mahendra Poonia and other persons was Sher Singh. They telephoned petitioner Mahendra Dutt Sharma who came there and they committed rape with her. On the basis of aforesaid complaint, learned Magistrate firstly ordered to keep the complainant present on the next date of hearing and the complaint was sent for investigation under Section 156(3) Cr.P.C , 1973to the Police Station Bhirani, Distt. Hanumangarh. Learned Additional Chief Judicial Magistrate, Nohar recoded the statement of prosecutrix under Section 164 Cr.P.C , 1973in which she stated that she wants to live with Mahendra Poonia and wants to marry him and only due to pressure of police, she made allegation against Mahendra. Hanumangarh. Learned Additional Chief Judicial Magistrate, Nohar recoded the statement of prosecutrix under Section 164 Cr.P.C , 1973in which she stated that she wants to live with Mahendra Poonia and wants to marry him and only due to pressure of police, she made allegation against Mahendra. After investigation, the police filed Final report that no case is made out against the petitioners as well as Sher Singh. 5. On the basis of chargesheet filed against Mahendra Poonia, the trial court framed charges against Mahendra Poonia and trial commenced. During trial, prosecutrix 'S' was examined as PW/1 before the trial court and she made allegation against the present petitioners also. Thereafter, learned trial court took cognizance against the petitioners by the impugned order dated 18.02.2008. 6. Learned counsel for petitioner submits that the trial court has committed an error in taking cognizance against the present petitioners as in the FIR lodged by father of the prosecutrix so also in the chargesheet filed against Mahendra Poonia, no allegation has been levelled against the petitioners for committing rape. In the statement recorded under section 161 cr.P.C , 1973also, no allegation has been levelled against the petitioners. It is only after about one and half month that the prosecutrix filed a false complaint against the petitioners. She gave statement under Section 164 Cr.P.C., 1973 in which also, no allegation was levelled against the petitioners. The police after thorough investigation has come to the conclusion that no case is made out against the petitioners and submitted Final Report in the case. Further it is submitted that during pendency of the revision petition, prosecutrix 'S' has married with the main accused Mahendra Poonia and is presently residing with him. Therefore, the impugned order taking cognizance against the petitioners may be quashed and set aside. 7. Per contra, counsel for the respondents while supporting order of Magistrate taking cognizance of offences submits that not only in complaint but also statement recorded in course of trial, prosecutrix has levelled allegations against the present petitioners. However, counsel for the respondent no.2 does not dispute the fact that prosecutrix has married with the accused Mahendra Poonia and residing with him. 8. I have considered rival contentions of both the parties, and with their assistance, examined material available on record. 9. However, counsel for the respondent no.2 does not dispute the fact that prosecutrix has married with the accused Mahendra Poonia and residing with him. 8. I have considered rival contentions of both the parties, and with their assistance, examined material available on record. 9. In instant case, from the facts on record and material collected in course of investigation, it is evident that in the FIR, the petitioners were not named and after recovery of prosecutrix by the police, in the statement recorded under Section 161 & 164 Cr.P.C also, no allegations were levelled against the present petitioners. She had not levelled allegation with regard to rape in her statement recorded under Section 161 & 164 Cr.P.C and it is only in the complaint which was filed after an inordinate delay of one and half months, she has levelled allegation of rape against the present petitioners. This complaint was sent for investigation to the police under Section 156(3) Cr.P.C , 1973and the police after thorough investigation filed Final Report to the effect that no case is made out against the petitioners. It is only after considerable delay, a complaint was filed by the prosecutrix against the petitioners and in the court statement recorded on 14.05.09, she named the present petitioners on the basis of which the trial court took cognizance against the petitioners. Thus, the prosecutrix has changed her version at different places and she cannot be said to be a trustworthy and reliable witness. 10. Hon'ble Supreme Court in the case of " Narender Kumar v. State (NCT of Delhi)" : (2012) 7 Supreme Court Cases 171 , has held that conviction can be based on sole testimony of prosecutrix without any corroboration, if it inspires confidence. If Court finds the version of prosecutrix improbable and devoid of trust, same is to be rejected. It was also observed if the statement suffers from serious infirmities, inconsistencies and deliberate improvements on material point, reliance cannot be placed thereon. 11. Hon'ble Supreme Court in another case of " Krishan Kumar Malik v. State of Haryana" : (2011) 7 Supreme Court Cases 130 , acquitted the accused as there were several lacunae in the evidence of prosecutrix and story was not corroborated by any other evidence. There were discrepancies and omissions in F.I.R. Name of accused was not mentioned even when prosecutor was aware of his name. There were discrepancies and omissions in F.I.R. Name of accused was not mentioned even when prosecutor was aware of his name. Court held that such omissions shake credibility of the prosecutrix. 12. With regard to delay, Hon'ble Apex Court in the case of " Ramdas and Ors. v. State of Maharashtra" : (2007) 2 Supreme Court Cases 170 , held that delay in lodging of report may not by itself be fatal to the case of the prosecution, but the delay has to be considered in the background of the facts and circumstances in each case. The Apex Court gave benefit of doubt to the accused in a case under Section 376 IPC when F.I.R. was lodged after eight days of the alleged occurrence, for which no satisfactory explanation was rendered. 13. It is also relevant to note that reportedly, the prosecutrix 'S' has married with the main accused Mahendra Poonia and is presently residing with him. In these circumstances, this Court feels that the order impugned dated 18.02.2008 taking cognizance against the petitioners is not sustainable in the eye of law and same is liable to be set aside. 14. Consequently, the criminal petition succeeds and is hereby allowed. The impugned order dated dated 18.02.2008 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Hanumangarh in Criminal Case No. 220/2007 is hereby quashed and set aside. Record be sent back forthwith to trial Court to proceed in accordance with law.