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2023 DIGILAW 943 (RAJ)

Raghu Saini v. State of Rajasthan

2023-04-27

ASHOK KUMAR JAIN

body2023
JUDGMENT 1. Present appeal preferred under Section 14A SC/ST (POA) Act, aggrieved from order dated 19.05.2022 in Criminal F.R. Case No.22/2018 arising out of FIR No.49/2018, P.S. Pidawa (Jhalawar), passed by learned Special Judge, SC/ST (POA), Jhalawar. 2. The fact of the matter is that the complainant/victim had filed a written report on 10.03.2018 wherein it was alleged that on 25.02.2018 while returning from susner on her interception, two persons on a motor cycle who were known to complainant helped her in reaching her agricultural land but when she reached her agricultural farm then both the persons upon grabbing her, raped her by threatening her with knife. After reaching home, she could not tell her ordeal to anyone as her husband was not in the village and when he returned, she narrated the incident to her husband upon which her husband on 05.03.2018 went to Electricity Department and asked the accused about committing rape with complainant wife in the agricultural land but instead of listening to him, they had registered a case of obstructing public servant while discharging official duty. 3. The complainant ultimately filed this report and on the basis of this report FIR No.49/2018 was registered under Section 376(D) IPC and Section 3 (1)(w), 3(1)(i) of SC/ST (POA) Act in pursuance of which investigation was conducted and police had filed a final closure report on the ground that the incident is false. After notice, complainant had preferred protest petition before learned trial court and examined herself under Section 200 Cr.P.C., her husband under Section 202 Cr.P.C. Learned trial court, thereafter, proceeded to take cognizance under Section 376(D) IPC and Section (3)(2)(v) of SC/ST (POA) Act. 4. Learned counsel for the appellant submitted that in FIR itself, it was alleged that incident had taken place on 25.02.2018 but FIR was lodged after a delay of more than 13 days and no explanation was offered for this delay. He further submitted that the incident itself is highly improbable as it is not possible for appellants to commit rape with a victim having age more than 45 years. He further submitted that the incident itself is highly improbable as it is not possible for appellants to commit rape with a victim having age more than 45 years. He further submitted that learned trial court without considering the fact that police had recommended a final closure report on the ground of falsity of facts by complainant but learned trial court had failed to appreciate the fact that the evidence of complainant is wholly unreliable as this case was filed to counter the case registered against husband of complainant. He further submitted that police after investigation had submitted FR on several grounds and learned trial court had failed to appreciate the fact as submitted by police and further learned trial court had not given any reason for disagreeing with reason submitted in support of FR. He further submitted that both the appellants are public servants and there is no nexus in indulging with any activity with complainant. He further submitted that the order must be reasoned enough and learned trial court had failed to give reasons to summon present appellants. He further submitted that husband of complainant was involved in electricity theft and a VCR was prepared against him. He further submitted that this is a concocted and false case framed just to misuse the provisions of law. 5. Aforesaid contentions were opposed by learned Public Prosecutor. Though, power was filed on behalf of complainant but in any case, the material available on record was cited in support of cognizance by learned Public Prosecutor. 6. Heard arguments of learned counsel for the appellant, learned Public Prosecutor and perused the material available on record. 7. The incident of rape was alleged to have been committed on 25.02.2018 that too during evening time but same was not reported to anyone by the complainant and this fact was admitted in FIR itself. After the return of husband of complainant, he visited the office of appellant on 05.03.2018 and just scolded appellants, thereafter, this FIR was registered on 10.03.2018. Aforesaid incident clearly indicate that a delay was caused and there was no explanation offered for delay. 8. After the return of husband of complainant, he visited the office of appellant on 05.03.2018 and just scolded appellants, thereafter, this FIR was registered on 10.03.2018. Aforesaid incident clearly indicate that a delay was caused and there was no explanation offered for delay. 8. Assuming the fact that the complainant is a lady belonging to rural area but when she is capable enough to lodge an FIR on 10.03.2018 and that too without assistance of anyone then definitely, she could have lodged the FIR within a reasonable time without any delay after the incident but learned trial court has not given any reason to consider the grounds of delay in lodging the FIR. 9. Herein, after registration of FIR police have submitted final closure report wherein, the incident was found to be false. The record further indicated that on 25.03.2016, when vigilance team of JVVNL had checked the house of husband of complainant, it was found that the electricity was getting consumed by direct connection with LT line, which amounts to electricity theft and a punishable offence under Section 130 of the Electricity Act, 2003. On the basis of the same, a notice was issued on 09.05.2016. Appellant no.1 had registered an FIR No.45/2018 on 05.03.2018, alleging obstruction and assault by husband of complainant, under Sections 332 and 353 IPC. Present FIR was registered on 10.03.2018, after registration of FIR No.45/2018 under Sections 332 and 353 IPC. 10. Aforesaid incident clearly indicate that before a grievance was raised by the complainant to police in the present matter, FIR in cognizable offence was already registered against the husband of complainant. Moreover, admittedly, husband of the complainant was arrested on 05.03.2018 under Section 107/151 Cr.P.C. 11. The fact of the matter is it is the complainant who is the sole witness in the matter, therefore, even at the stage of recording the statement under Section 200 Cr.P.C., learned trial court ought to have examined the complainant in such a manner that her deposition could inspire confidence of trial court. 12. Herein, the statement of AW1 clearly indicate that husband of complainant visited the office of appellant just to scold them. The investigation suggests that the incident had never taken place. Thus, when crime of such a serious nature was not committed than merely on the basis of on oath statement, order of cognizance without any material on record is certainly not appreciable. The investigation suggests that the incident had never taken place. Thus, when crime of such a serious nature was not committed than merely on the basis of on oath statement, order of cognizance without any material on record is certainly not appreciable. It appears that the material available on record clearly indicate that after the registration of FIR and arrest of husband of complainant, this case was registered as counterblast. The theory which is suggestive of allegations by complainant also does not inspire any confidence and learned trial court failed to appreciate the fact that before taking cognizance in a heinous matter that too after submission of final closure report by police on the ground that no such incident had ever taken place, than obviously a due care is required. 13. Herein, it is not the case that after investigation offences were found proved. Similarly, herein, no medical evidence or other circumstantial evidence suggests the probable commission of crime. 14. Herein, if somebody registered a case as a counterblast then before taking cognizance it was incumbent upon the learned trial court to ensure that the factum of commission of crime must be supported with certain reliable and cogent evidence on record. 15. Herein, learned trial court has committed a serious error in taking cognizance, hence, this appeal which is preferred under Section 14A SC/ST (POA) Act, wherein, this court can consider the scope of appeal on fact and law as well is liable to be allowed. 16. In view of aforesaid discussions, the present appeal against order of cognizance dated 19.05.2022 is allowed and order cognizance dated 19.05.2022, is set aside. Appellants are discharged. 17. Misc. applications, if any, stand disposed of.