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2021 DIGILAW 372 (JK)

Gaffor Khan v. State of J&K

2021-07-28

RAJNESH OSWAL

body2021
JUDGMENT : Rajnesh Oswal, J.-The petitioner has questioned the order dated 14.05.2015 passed in challan, titled, State vs. Keshav Ram and others that was pending before the learned Special Mobile Magistrate (Electricity), Batote (hereinafter to be referred as the trial court) arising out of FIR bearing No. 114/2013 for commission of offences under sections 363, 344 and 109 RPC of Police Station, Batote, by virtue of which, the petitioner has been arrayed as an accused in the challan mentioned above for the commission of offence of rape. 2. Mr. Sandeep Singh, learned counsel appearing for the petitioner has reiterated the grounds those have been taken in the petition. Further, he has vehemently argued that the petitioner was not the accused in the challan initially and also the prosecutrix has never deposed about the commission of any offence committed by the petitioner in her statement recorded under section 164-A Cr.P.C. by the learned Magistrate on 26.10.2013. He further submitted that during investigation, the petitioner never figured in the statement of the prosecutrix recorded under section 164-A Cr.P.C. nor in a challan that was filed after investigation and further that learned trial court has passed the order impugned without affording any opportunity of being heard to the petitioner and without following the mandate of law. Mr. Singh has relied upon the judgment of the Constitution Bench of the Supreme Court in Hardeep Singh and others v State of Punjab and others. Mr. Sandeep Singh, learned counsel for the petitioner, during the course of arguments, has also submitted that the judgment passed by the learned trial court by virtue of which only two accused were convicted and all others have been acquitted by the learned trial court vide judgment dated 22.07.2020. 3. Mr. Jamrodh Singh, learned GA appearing for the respondents has also relied upon the same judgment. 4. Heard and perused the record. 5. A perusal of the record reveals that on 28.10.2013, the prosecutrix appeared before the Police Station, Batote and her statement was recorded in which she has deposed that in the month of May, 2013, Keshav Ram, Ganga Ram and Rehmat Ullah residents of Sanasar, Tehsil, Batote, District, Ramban were sitting at the house of Keshav Ram, who is her paternal uncle. He called her at his home and said that she may come to Srinagar along with his daughter and they will also arrange her marriage at Srinagar. He called her at his home and said that she may come to Srinagar along with his daughter and they will also arrange her marriage at Srinagar. On 12.05.2013 morning, Rehmatullah met her and he gave her a black coloured Burka. He took golden Jumka from her and gave Rs. 50/- cash to her. Thereafter, Rehmat Ullah sent her to the house of Kesho Ram where Kesho Ram and Ganga Ram were also present. Daughter of Kesho Ram namely Rabita Devi gave her own dresses/clothes to her and she wore dress on the asking of above said persons. Thereafter, these persons enticed and allured her to go to Srinagar along with Rehmat Ullah, who en-route asked her to wear the burka and on his asking, she wore the burka and she reached Nashri on foot, from where they boarded a special van but she did not know the registration number of that van, but its colour was white. From Nashri they went to Ramban, where Rehmat Ullah handed-over her to Roop Chand, who is presently residing at Srinagar and is her paternal uncle, who took her to Srinagar at unknown place, where he forcibly confined her into his house and forcibly tried to solemnize her marriage with the brother of his real son-in-law. She was disgusted of his ill-treatment. She was not in possession of a telephone so that she could call her parents. Then she asked him to send her home otherwise she will inform the Military. He got afraid and on 21.10.2013 he brought her to Baggu Nallah at 6:30 PM and he threatened her not to inform police or any other person about him. He in conspiracy with other accused persons kept her in wrongful confinement in his house with the object to get her married with someone. On returning home, she narrated the whole story to her parents. 6. After the completion of the investigation, the challan for commission of offence under sections 363, 344 and 109 RPC was filed against the accused therein. 7. Thereafter, the statement of the prosecutrix was recorded in which she has submitted that the petitioner also came to Srinagar and he stayed at the house of Roop Chand at Srinagar for 3/4 months and thereafter returned. 7. Thereafter, the statement of the prosecutrix was recorded in which she has submitted that the petitioner also came to Srinagar and he stayed at the house of Roop Chand at Srinagar for 3/4 months and thereafter returned. She was kept confined by Gaffor, petitioner herein and Roop Chand in their home for 4/5 months and the petitioner had forcible physical relations with her for three months. She further deposed that she disclosed to his Maternal Uncle Roop Chand alias Abdul Rehman about the petitioner but he did not take any action. PW Tara Chand, who happens to be the father of the prosecutrix also deposed that on enquiry by the police, he disclosed that he suspects involvement of the Gaffor Ahmed petitioner herein and further stated that after twenty days the petitioner went to Srinagar who established illicit relation with her daughter and continued the same for three months. Thereafter, on the oral prayer made by the learned Senior Prosecuting Officer, the learned trial court vide order dated 14.05.2015 arrayed the petitioner as an accused in the abovementioned challan. 8. A perusal of the record further reveals that Keshav Ram was convicted and directed to undergo simple imprisonment for two years for commission of offences under section 363 read with 109 RPC and Roop Chand alias Sheikh Abdul Rehman was also sentenced to undergo simple imprisonment for two years for commission of offence under section 363 RPC and one year simple imprisonment for one year under section 344 RPC. 9. From the record, it is evident that the statement of the prosecutrix was recorded on 23.10.2013 by the learned Magistrate under section 164-A Cr.P.C. and in this statement, the prosecutrix has not leveled any allegation with regard to the commission of rape and also has not named the petitioner anywhere in her statement. It was only after 18 months that when her statement was recorded during the trial, then she deposed that she was raped by the petitioner. 10. The issue involved in the present petition is no more res integra that a person, who is neither named in the FIR nor in the charge sheet can still be summoned as an accused, provided from the evidence, it is evident that such person can be tried along with other accused facing trial. 10. The issue involved in the present petition is no more res integra that a person, who is neither named in the FIR nor in the charge sheet can still be summoned as an accused, provided from the evidence, it is evident that such person can be tried along with other accused facing trial. However, the Constitution Bench of the Apex Court in Hardeep Singh’s case (supra) has held as under: “98. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.” 11. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.” 11. Almost in an identical matter, the Hon’ble Apex Court rejected the application filed under section 319 Cr.P.C. when neither the victim nor the mother has deposed about the complicity of the accused persons sought to be arrayed as an accused immediately after the occurrence and when the persons were sought to be arrayed as an accused only after their statements were recorded in a court after more than a year. In Labhuji Amratji Thakor v. State of Gujarat, (2019) 12 SCC 644 , the Apex Court has observed as under: “10. The Constitution Bench in Hardeep Singh case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] has given a caution that power under Section 319 CrPC is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. The crucial test, which has been laid down as noted above is “[t]he test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction” (SCC p. 138, para 106). The present is a case, where the trial court had rejected the application filed by the prosecution under Section 319 CrPC. Further, in the present case, the complainant in the FIR has not taken the names of the appellants and after investigation in which the statement of victim was also recorded, the names of the appellants did not figure. After carrying investigation, the charge-sheet was submitted in which the appellants’ names were also not mentioned as accused. In the statement recorded before the police, the victim has named only Natuji with whom she admitted having physical relations and who took her and with whom she went out of the house in the night and lived with him at several places. The mother of victim in her statement before the court herself has stated that the victim girl returned to the house after one-and-a-half months. In the statement, before the court, the victim has narrated the entire sequence of events. The mother of victim in her statement before the court herself has stated that the victim girl returned to the house after one-and-a-half months. In the statement, before the court, the victim has narrated the entire sequence of events. She has stated in her statement that accused Natuji used to visit her uncle’s house Vishnuji, where she met Natuji. She, however, stated that it was Natuji, who had given her mobile phone. Her parents came to know about she having been given mobile phone by Natuji, then they went to the house of Natuji and threatened Natuji. After one month, Natuji gave another mobile phone to the victim, who had taken it. She stated that in the night at 12 o’clock, Natuji along with his three friends had taken her to Morbi in a jeep. She further stated that she and Natuji stayed for three days at the said place and Natuji had intercourse with her at the said place. When Natuji came to know about lodging of complaint, he took her to Modasa in the jeep. The jeep was given by Labhuji and the other two appellants were also in the jeep. She further stated that Labhuji, Shashikant and Jituji came in the jeep and took her and Natuji to the police station, where the police interrogated her and she recorded her statement. Natuji was charged with Sections 363 and 366 IPC and Sections 3 and 4 of the POCSO Act.” 12. Now, coming to the facts of the present case, the statement of the prosecutrix that the learned Magistrate only enquired about her name and father’s name, is also belied by the fact that the learned Magistrate has issued a certificate that her statement was recorded in his presence. Further in the certificate it has been mentioned that the same was read over to her and she admitted it to be true, so it cannot be said that the statement was not recorded by the learned Magistrate. It is not the case where the statement of the posecutrix has been recorded by Police where she can claim that whole of her statement was not recorded by the Police but in the instant case, the statement has been recorded under sec. 164-A Cr.P.C by the Magistrate after following the due procedure of law. It is not the case where the statement of the posecutrix has been recorded by Police where she can claim that whole of her statement was not recorded by the Police but in the instant case, the statement has been recorded under sec. 164-A Cr.P.C by the Magistrate after following the due procedure of law. More so, the statement of PW Tara Chand, who is the father of the prosecutrix reveals that the prosecutrix after the occurrence narrated the whole story to her mother, who in turn repeated the same story to him. He further deposed that prosecutrix was handed over by Roop Chand to Gafoor and after making illicit relations she was handed over back to Roop Chand. The mother of the prosecutrix did not depose anything about rape committed by the petitioner. Even the prosecutrix has not deposed that she was handed over to Gafoor by Roop Chand and after making physical relations, she was handed over back to Roop Chand. For arraying the accused subsequently, the evidence on record must fulfill the test of “more than prima facie case” as required for framing charge and on vague and contradictory evidence, one cannot be arrayed as accused. In view of the fact that the challan has not been filed for commission of offence of rape and when there was no allegation against petitioner in statement under sec 164-A Cr.P.C and was neither named by the prosecutrix in her statement under sec 164-A Cr.P.C nor in the challan, the learned Magistrate has wrongly arrayed the petitioner as accused on the basis of vague and contradictory allegations made by the prosecutrix and witness Tara Chand. 13. In view of all what has been discussed above, this petition is allowed. The order dated 14.05.2015 passed in challan, titled, State vs. Keshav Ram and others that was pending before the learned Special Mobile Magistrate (Electricity), Batote arising out of FIR bearing No. 114/2013 for commission of offences under sections 363, 344 and 109 RPC of Police Station, Batote, is quashed.