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2022 DIGILAW 1429 (RAJ)

State v. Mohd @ Kalu Khan

2022-05-06

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT : 1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned. 2. This criminal revision petition under Section 397 and 401 Cr.P.C. has been preferred by the petitioner-State against the order dated 06.10.2001 passed by the learned Special Judge, SC/ ST (Prevention of Atrocities) Act Cases, Pratapgarh in Special Sessions Case No.83/2001, whereby the present accused-respondents were discharged of the offences under Sections 363, 366, 120-B & 376 IPC and Section 3(x2) of the SC/ST (Prevention of Atrocities) Act. 3. Learned Public Prosecutor appearing on behalf of the petitioner-State submits that on 04.08.2001 (in the morning), one Gheesalal, brother of the prosecutrix, lodged a first information report before the Police Station, Dholapani, alleging therein, that his sister (prosecutrix), who was a married lady, came to his house; thereafter, very often, the present accused-respondents used to came to the house of Gheesalal; such conduct of the accused-respondents was repeatedly resisted and opposed by Gheesalal, but despite that, the accused-respondents kept on visiting his house. 3.1 Learned Public Prosecutor further submits that as per the aforementioned report, on 30.07.2001 (at about 09:00 a.m.) i.e. 5-7 days prior to lodging of the aforementioned report, the sister (prosecutrix) of Gheesalal was enticed away by the present accused-respondents on false pretense, with a clear intention to get her married with accused-respondent Mohd. @ Kalu Khan; thereafter, her whereabouts could not be known for a long time. 3.2 Learned Public Prosecutor also submits that upon the aforementioned report, a case was registered against the accused-respondents for the offences under Sections 363 and 366 IPC; however, only on 04.08.2001 (in the afternoon), the prosecutrix was recovered, at Aasind, District Bhilwara. 3.3 Learned Public Prosecutor further submits that the record clearly reveals that the present accused-respondents exerted immense pressure upon the prosecutrix to get her married to the present accused-respondent Mohd. @ Kalu Khan, despite her being already married; not only this, the said accused-respondent also tried to outrage her modesty, at one point of time, but for some reason and strong resistance on the part of the prosecutrix, such efforts of the accused-respondent could not culminate into success. @ Kalu Khan, despite her being already married; not only this, the said accused-respondent also tried to outrage her modesty, at one point of time, but for some reason and strong resistance on the part of the prosecutrix, such efforts of the accused-respondent could not culminate into success. However, as per the learned Public Prosecutor, at a later point of time, during the course of her illegal enticement and abduction, she was subjected to forcible sexual intercourse by the present accused-Mohd. @ Kalu Khan, in a Lodge at Bhilwara. Learned Public Prosecutor also submits that as per the report, the age of the prosecutrix, at the relevant time, was 15-16 years. 3.4 Learned Public Prosecutor also submits that the accused-respondents were presented before the learned Judicial Magistrate, First Class, Badi Sadri, for cognizance in relation to the charges for the offences under Sections 363, 366, 376 & 120-B IPC and Section 3(12) of the SC/ST Act; whereupon the learned Judicial Magistrate took cognizance against the present accused-respondents for the aforementioned offences vide order dated 24.09.2001, and rightly so; however, since the case was involving the offence under the SC/ST Act, the matter was committed to the Court of Sessions, Pratapgarh vide the same order, wherefrom the case was transferred to the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Pratapgarh (trial court), for the necessary adjudication. 3.5 Learned Public Prosecutor however, submits that the learned trial court, instead of framing the charges against the accused-respondents, discharged them of all the charges levelled against them. Thus, the learned Public Prosecutor submits that the learned trial has passed the impugned order of discharge in favour of the accused-respondents without due appreciation of the evidence placed on record before it and also without taking into due consideration the overall facts and circumstances of the case. Hence, learned Public Prosecutor submits that the impugned order of discharge passed by the learned trial court deserves to be quashed and set aside, and the matter deserves to be remanded back to the learned trial court for framing charges against the present accused-respondents for the alleged offences. 4. On the other hand, while opposing the aforesaid submissions made on behalf of the petitioner-State, learned Senior Counsel Mr. Vineet Jain, assisted by Mr. 4. On the other hand, while opposing the aforesaid submissions made on behalf of the petitioner-State, learned Senior Counsel Mr. Vineet Jain, assisted by Mr. Praveen Vyas appearing on behalf of the accused-respondents, at the outset, submits that regarding the age of the prosecutrix, the prosecution has failed to produce before the learned trial court, any proof, so as to substantiate the claim of the prosecution regarding the prosecutrix being 15-16 years of age; and thus, the said aspect, amongst others, has been clearly and effectively dealt with by the learned trial court, while passing the impugned order of discharge, and rightly so; this is more so when, as per the medical opinion, the age of the prosecutix was 17-18 years, at the relevant time. 4.1 Learned Senior Counsel further submits that the version, as put forth by the prosecutrix in the present case, is that she was enticed away by the accused-respondents on false pretense, and during the course of the alleged enticement, she was taken to Chittorgarh and was indulged in some documentation in a court situated thereat; she also put her thumb impressions on certain documents; on 2-3 blank papers also, her thumb impressions were taken. 4.2 Learned Senior Counsel also submits that the prosecutrix has also stated that from the court at Chittorgarh, she was taken by the accused-Mohd. @ Kalu Khan to Bhilwara, and in a Lodge thereat, the prosecutrix was subjected to forcible sexual intercourse by the said accused-respondent; whereafter, she was taken to Aasind by the accused-respondent Mohd. @ Kalu, and while pressuring the prosecutrix to stay with him thereat, she was again subjected to forcible sexual intercourse, under the threat of dire consequences. 4.2.1. Learned Senior Counsel also submits that the whole version of the prosecutrix, as above, itself casts a doubt upon the prosecution story, more particularly, when during the period of the alleged enticement and abduction, she travelled with the accused-respondents in a public transport; in course of which, despite having several opportunities, the prosecutrix never protested against the accused-respondents, nor raised any hue and cry, so as to project and resist the alleged illegal act of the accused-respondents. Thus, as per learned Senior Counsel, such a clear non-resistance, at any point of time, on the part of the prosecutrix, is not only belies her own version, but also clearly casts a serious doubt upon the case of the prosecution. Thus, as per learned Senior Counsel, such a clear non-resistance, at any point of time, on the part of the prosecutrix, is not only belies her own version, but also clearly casts a serious doubt upon the case of the prosecution. 4.3 Learned Senior Counsel thus submits that the facts and material placed on record are sufficient to show that no forcible sexual intercourse, under the garb of any threat, was committed by the accused-respondent, rather it is a case of consensual relationship, and the same clearly strikes at the substratum of the prosecution case. Learned Senior Counsel therefore, submits that the impugned order was rightly passed by the learned trial court, after considering all the relevant aspects and evidence placed on record before it, and thus, the same may not be interfered with by this Court. 4.4 Learned Senior Counsel however, submits that apart from the aforementioned backdrop, at the stage of framing of charges, a detailed analysis or a roving enquiry is not required. 4.5 Learned Senior Counsel further harped upon the word “presumption” occurring in Section 228 Cr.P.C. stating that if the Judge is of the opinion that a ground for presumption of the alleged offence against the accused lies after consideration and hearing of the case, then charges can be framed against such accused. 5. After hearing learned counsel for the parties as well as perusing the record of the case, this Court finds that the impugned order passed by the learned trial court clearly reveals due appreciation of the evidence placed on record before it; the same also clearly indicates consideration of the overall facts and circumstances of the present case, coupled with due consideration of each and every aspect relevant for the purpose of effective adjudication of the case, at the stage of framing of charges. 6. This Court further observes that at the stage of framing of charge, the learned court below is not required to conduct a meticulous appreciation of evidence or a roving inquiry into the same, as was laid down by the Hon’ble Apex Court in the judgments rendered in Ashish Chadha v. Asha Kumari and Ors (2012) 1 SCC 680 and State of NCT of Delhi and Ors. vs. Shiv Charan Bansal and Ors. (2020) 2 SCC 290 . 7. vs. Shiv Charan Bansal and Ors. (2020) 2 SCC 290 . 7. This Court is also conscious of the judgment rendered by the Hon’ble Apex Court in State of Maharashtra and Ors. Vs. Som Nath Thapa (1996) 4 SCC 659 , wherein it was observed that a prima facie test was to be applied at the stage of framing of charge, and the probative value of the materials on record cannot be gone into. The meaning of the word “presume” was also analyzed and it was held to mean that unless evidence to the contrary is forthcoming. 8. In light of the aforesaid observations, this Court finds that the impugned order of discharge passed by the learned trial court does not suffer from any legal infirmity, so as to warrant any interference by this Court, at this stage. 9. Consequently, the present petition is dismissed. All pending applications stand disposed of. Record of the learned court below be sent back forthwith.