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Madhya Pradesh High Court · body

2019 DIGILAW 847 (MP)

Abhishek v. State of M. P.

2019-12-04

VISHNU PRATAP SINGH CHAUHAN

body2019
ORDER 1. The applicant has filed this criminal revision under section 397/401 of the CrPC being aggrieved by order dated 11.10.2017 passed by the learned Special Judge designated for trial of offence under Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') in Special Case No. 65/2017, whereby charges of offence punishable under section 4 of the POCSO Act, in alternate, under sections 376 (1) of IPC and section 305 of IPC were framed against the applicant. 2. The prosecution's case, in short, is that, on 14.4.2017, the prosecutrix, who was below 17 years of age at that time, went to the house of Shashikant Patel. Father of the prosecutrix came there in search of her and found her with the applicant Abhishek in objectionable position. He rebuked the prosecutrix by uttering filthy words and asked her to go home. Thereafter, the prosecutrix left for home. Later on, the prosecutrix was found in hanging condition in the upper storey of her house and died due to hanging. The matter was informed to the police. The police registered merg No. 4/2017 under section 174 of the CrPC and during investigation in that merg, it was found that the applicant forcibly committed rape upon her and the prosecutrix was left with no option but to commit suicide. FIR was registered against the applicant at Crime No. 52/2017 for offence punishable under section 376 of IPC and sections 3/4 and 6 of POCSO Act and later on, offence under section 306 of IPC was added. After due investigation, charge-sheet was filed before the Special Court. After hearing both the parties, the learned Special Judge framed the charges of offence punishable under section 4 of the POCSO Act, in alternate, under sections 376 (1) of IPC and section 305 of IPC against the applicant. 3. Learned counsel for the applicant submits that the learned trial Court has not properly considered the evidence available on record. The applicant has not committed rape upon the prosecutrix. No ingredients of section 107 of IPC is made out in the case on the basis of the evidence collected by the prosecution. The prosecutrix committed suicide when she was caught with the applicant by her father and her father rebuked her for the same. The applicant has not instigated the prosecutrix to commit suicide. No ingredient of abetment was found. The prosecutrix committed suicide when she was caught with the applicant by her father and her father rebuked her for the same. The applicant has not instigated the prosecutrix to commit suicide. No ingredient of abetment was found. When no prima facie evidence is available with the prosecution to establish the case, the applicant is liable to be discharged. However, the learned trial Court, instead of discharging the applicant, framed charges against him, therefore, it is prayed that this revision be accepted and the applicant be discharged from the aforesaid charges by setting aside the impugned order. 4. On the other hand, learned Government Advocate for the State submits that there is sufficient material available on record for framing of charges against the applicant. The learned trial Court has not committed any error in framing the charges. There is no illegality or perversity visible in the impugned order warranting interference by this Court, hence, the present revision deserves to be dismissed. 5. Having heard the learned counsel for the parties, perused case diary of Crime No. 52/2017 and documents collected by the prosecution during merg enquiry No. 4/2017, it appears that body of the deceased was sent for post-mortem. In the post-mortem report, some fluid and clotted blood was found in the hymen. Margins of the hymen were ruptured and torn at 7 O' Clock position, seen mucosa congested ecthymas and congestion seen at the vaginal orifice and opined that torn of hymen was within 24 hours of her death. Doctors opined that before her death, she was under sexual assault. On the direction of FSL officer, doctors after examining the private parts of the deceased, prepared vaginal smear slide and found stains on the clothes of the prosecutrix. Vaginal slide and stained undergarments of the prosecutrix were sent for DNA test. No semen spot was found on the undergarments of the prosecutrix. In the vaginal smear slide, no male profile was detected in the DNA test which shows that no sexual intercourse was committed with the prosecutrix by the applicant. 6. On a perusal of the statement of witnesses recorded under section 161 of the CrPC and during merg enquiry, some of the witnesses have stated that the prosecutrix was in relation with the applicant, but none of the witnesses has stated that the applicant committed rape upon the prosecutrix. 6. On a perusal of the statement of witnesses recorded under section 161 of the CrPC and during merg enquiry, some of the witnesses have stated that the prosecutrix was in relation with the applicant, but none of the witnesses has stated that the applicant committed rape upon the prosecutrix. Even the prosecutrix did not narrate the fact of rape to her family, nor to her friends and anyone. From a perusal of DNA report, which is annexed with the case diary, it is clear that no male profile was found in the vaginal slide or on the undergarments of the prosecutrix. On the basis of DNA report, which is a scientific method, presence of only female DNA profile in the vaginal slide and undergarments of the prosecutrix, clearly not establishes the fact that applicant committed sexual intercourse with prosecutrix. 7. From a perusal of statement of Shyamu Patel, father of the prosecutrix, it is apparent that when he saw prosecutrix with the applicant, the applicant was not committing rape upon her. He has categorically stated that when he saw the prosecutrix, she was only standing near the applicant and he asked the prosecutrix to go home, then the prosecutrix left for home and the applicant remained in the house. This witness has not stated anywhere that he saw the applicant and the prosecutrix in objectionable position or in the stage of committing intercourse. This witness also not stated that prosecutrix narrated factum of rape committed by applicant. Thereafter, the prosecutrix was found hanging in her house. 8. It is the case of the prosecution that father of the prosecutrix seen her with the applicant in objectionable position and he rebuked the prosecutrix for the same and thereafter, the prosecutrix committed suicide. However, no cogent reason has been shown by the prosecution as to why the prosecutrix has taken this terminal step. Prima facie there is no evidence available on record to show that the applicant committed rape with the prosecutrix or refused to get married with her. The applicant might be in love affair with the prosecutrix but having love affair is not a sufficient reason to establish the fact that the applicant abetted the prosecutrix to commit suicide. Prima facie there is no evidence available on record to show that the applicant committed rape with the prosecutrix or refused to get married with her. The applicant might be in love affair with the prosecutrix but having love affair is not a sufficient reason to establish the fact that the applicant abetted the prosecutrix to commit suicide. There is no evidence available on record that the applicant uttered such words to the prosecutrix or acted in such a manner which comes under the purview of abetment to commit suicide. The prosecution has failed to prove beyond reasonable doubt that the applicant committed rape upon the prosecutrix or abetted the prosecutrix to commit suicide. 9. The Supreme Court, in the case of Amit Kapoor v. Ramesh Chandra and others (2012) 9 SCC 460 , while laying down the conditions in which revisional powers can be exercised, has held as under: "19. Having discussed the scope of jurisdiction under these two provisions, i.e., section 397 and section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the Courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly with regard to quashing of charge either in exercise of jurisdiction under section 397 or section 482 of the Code or together, as the case may be: 1) Though there are no limits of the powers of the Court under section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly the charge framed in terms of section 228 of the Code, should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 2) The Court should apply the test as to whether the un-controverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. 2) The Court should apply the test as to whether the un-controverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 4) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate Courts, even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 5) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 6) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 8) Where the allegations made, and as they appeared from the record and documents annexed therewith to, predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. 9) Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice. 10) It is neither necessary nor is the Court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 12) In exercise of its jurisdiction under section 228 and/or under section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. 13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 14) Where the charge-sheet, report under section 173 (2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 15) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours otherwise, it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the Courts exist." 10. In the light of the aforesaid law laid down by the Supreme Court in the case of Amit Kapoor (supra), this Court is of the firm view that the learned trial Court has committed an error of law in framing charges against the applicant. At the stage of framing of the charges, appreciation of evidence cannot be done but, it has to be seen that by the evidence collected by the prosecution, whether any incriminating material available against the accused or not. 11. In view of the aforesaid, this Court is of the considered view that there is no evidence available on record to show that ingredients of section 107 of IPC against the applicant. 11. In view of the aforesaid, this Court is of the considered view that there is no evidence available on record to show that ingredients of section 107 of IPC against the applicant. On the basis of the evidence collected by the prosecution, no offence under sections 4 of POCSO Act, in alternate, section 376 (1) of IPC as also section 305 of IPC is made out against the applicant. The impugned order appears to be perverse and, therefore, it is a fit case in which an interference is required from the side of this Court by way of a revision. The revision filed by the applicant is hereby allowed. The impugned order dated 11.10.2017 passed by the Special Judge (POCSO Act) in Special Case No. 65/2017 is hereby set aside. The applicant is entitled to be discharged under section 227 of the CrPC. Consequently, the applicant is discharged of the charges of the aforesaid offence. 12. Copy of this order be sent to the trial Court for information and compliance.