1 Cr.R.No.20/2017
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
Criminal Revision No.20/2017
1. Raja @ Amir S/D/W/Thru:- Abdul Hafiz @ Chotu Lakdiwala R/o
Choti Kumhari Maszid Ke Piche Lalbarra Balaghat (M.P.).
2.Gulam Waris S/D/W/Thru:- Gulam Gaus
R/o Tedi Neem Ka Maidan, Near Majar, Jabalpur (M.P.).
3. Mohd. Hafiz @ Chotu Lakdiwala S/D/W/Thru:- Mohd. Jarid R/o
Ward No.18, Jama Masjid Ke Pichhe, Lalbarra, Balaghat (M.P.)
4. Sayra Bano S/D/W/Thru:- Mohd. Hafiz @ Chotu Lakdiwala R/o
Jama Masjid Ke Pichhe, Lalbarra, Balaghat (M.P.).
5.Sameer @ Bhura S/D/W/Thru:- Mohd. Hafiz Khan, R/o Ward No.
18, Balaghat (M.P.).
6.Gulam Rajik D/W/Thru:- Gulam Gaus
R/o Makka Nagar Gali, Balaghat (M.P.).
Petitioners
Vs.
The State of M.P.
Through P.S.-Kotwali
Balaghat, M.P. Respondent
Present: Hon’ble Shri Justice C.V. Sirpurkar
……………………………………………………………………………………………………
Shri M. Shafiqullah, counsel for the petitioners.
Shri Akhilendra Singh, Government Advocate for the
respondent State.
………………………………………………………………………………………………….
ORDER
( 11-07-2017)
1. This criminal revision is directed against the order dated
28.09.2016 passed by the Court of Second Additional Sessions Judge,
Balaghat in S.T. No.102662/2016, whereby a charge under Sections
366, 376 (2) (h) read with section 34 of the IPC was framed against
2 Cr.R.No.20/2017
petitioners Raja @ Amir, Gulam Waris, Mohd. Hafiz @ Chotu
Lakdiwala, Sayra Bano, Sameer @ Bhura and Gulam Rajik.
2. The facts giving rise to this criminal revision may be
summarized as hereunder. The prosecutrix is a 19 years old girl, who
was studying in the second year of B.Sc. in Girls College, Balaghat.
She used to commute everyday from Lalbarra to her college at
Balaghat. At about 12:00 p.m. on 06.10.2015, she alighted from the
bus and accompanied by her friends Shristi, Shivani and Bharti was
proceeding towards her college. In front of water tank situated near
Girls’ College, petitioner Raja @ Amir came in a red Eeco Car with
registration no. MP-04-CF-6825, he put a handkerchief on her face and
made her lie in the car. Thereafter, she became unconscious. Petitioner
Raja @ Amir told her friends that if they disclosed the incident to
anyone, he would kill them. He also instructed her friends to tell the
family members of the prosecutrix that the colour of the car; wherein,
the prosecutrix was abducted, was white. Thereafter, petitioner Raja
took the prosecutrix from Balaghat to Lamta, Mandla and then to
Jabalpur. At Jabalpur, he took her to the residence of his cousin (Bua’s
son) Razik at Mecca Nagar. The prosecutrix was detained in a separate
room. In the morning, petitioner Raja @ Amir went along with his
elder brother Bablu @ Gulam Waris and brought a form relating to
change of religion. Petitioner Raja @ Amir threatened the prosecutrix
that if she did not sign the form, he would kill her. Due to fear, the
prosecutrix signed the form. Thereafter, on 08.10.2015 at about 04:00
p.m., petitioner Raja @ Amir took her to a Moulvi named Hafiz, where
the petitioner Raja forcibly married her. At that time, there were 10 or
15 persons present; however, the prosecutrix did not recognize any of
them, apart from Raja @ Amir and Bablu @ Gulam Waris. The same
evening, he took her by train to Bhopal and booked a room in Krishna
Hotel after showing Nikah-Nama. The same day, petitioner Raja @
3 Cr.R.No.20/2017
Amir learnt that the police was looking for him; therefore, he left
Krishna Hotel and shifted to Rajput Hotel. Since Amir had exausted all
his cash, he called his brother Bhura @ Samir and asked for money.
Thereafter, he took her to Bhopal Railway Station on 10.10.2015. On
11.10.2015, they came to the Bus-Stand and reached Raisen by bus on
12.10.2015. Thereafter, they returned to Bhopal Railway Station. On
the evening of 12.10.2015, they boarded the bus for Seoni. Next
morning, they reached Seoni at 9-10 a.m.. At Seoni, when petitioner
Raja @ Amir was waiting for his brother, the police came and detained
them. At Krishna hotel, petitioner Raja @ Amir established physical
relations with the prosecutrix against without her consent. At Rajput
hotel also, he had raped her. The prosecutrix did not go with the
petitioner Raja @ Amir of her own free will and accord nor did she
voluntarily marry Amir.
3. At the outset, learned counsel for the petitioners prays for
withdrawal of the petition so far as petitioner Raja @ Amir is
concerned. Consequently, his prayer for discharge is dismissed as
withdrawn.
4. Learned counsel for the petitioners has challenged the impugned
order on the ground that the prosecutrix herself admitted in her
statements under Section 161 of the Cr.P.C. that she was acquainted
with the petitioner Amir and she was being wooed by him. The
prosecutrix has alleged that she was abducted under the influence of
some intoxicant; however, there is no mention of any such intoxicant
in her police statement and those of of Bharti, Shrishti and Shivani,
who were present on the spot. The prosecutrix stayed with the
petitioner from 06.10.2015 till 13.10.2015. During aforesaid period,
they travelled from Balaghat to various places in public transport and
stayed in a hotels yet, the prosecutrix did not raise any alarm. The
prosecutrix had married the petitioner Raja @ Amir voluntarily and a
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Nikah-Nama in this regard was executed. The prosecutrix also gave an
application to the S.H.O, P.S.-Lalbarra that she was going with the
petitioner Raja @ Amir, voluntarily. They had also filed Writ Petition
No.17685/2015 before the Principal Seat of the High Court of M.P. At
Jabalpur seeking police protection against Smt. Nirmala Patle, mother
of the prosecutrix and Khuman Singh Patle, her cousin. It has also
been submitted that at any rate, petitioners Gulam Waris @ Bablu,
Mohd. Hafiz @ Chotu Lakdiwala, Sayra Bano, Samir @ Bhura and
Gulam Rajik had no role to play in the affair. Admittedly, the
prosecutrix was a major. She did not protest against the petitioner Raja
@ Amir openly. There is nothing on record to suggest that she
complained to Gulam Waris, Mohd. Hafiz, Sayra Bano, Samir or
Gulam Rajik against petitioner Raja and informed them that he had
abducted her and was trying to forcibly marry her and yet they co-
operate with the petitioner Raja. It has also been argued that even at
the stage of charge, the statement made by the prosecutrix cannot be
taken as a gospel truth, even if it is against are common course of
human conduct.
5. Learned Government Advocate on the other hand has supported
the impugned order.
6. On perusal of the record and due consideration of rival
contentions, the Court is of the opinion that this criminal revision must
succeed so far as petitioners Gulam Waris @ Bablu, Mohd. Hafiz @
Chotu Lakri Wala, Sayra Bano, Samir @ Bhura and Gulam Rajik are
concerned, for the reasons hereinafter stated:
7. It is true that at the stage of charge a mere strong suspicion
based on material on record is sufficient for the Court to frame a
charge; however, in the case of State of Maharashtra Vs. Priya
Sharan Maharaj and Others, (1997) 4 SCC 393 the Supreme Court
has held that:
5 Cr.R.No.20/2017
At Sections 227 and 228 stage the Court is required to evaluate the material and
documents on record with a view to finding out if the facts emerging therefrom
taken at their face value disclose the existence of all the ingredients constituting
the alleged offence. The Court may, for this limited purpose, sift the evidence as it
cannot be expected even at that initial stage to accept all that the prosecution
states as gospel truth even if it is opposed to common sense or the broad
probabilities of the case.
8. Likewise in the case of Niranjan Singh Vs. Jitendra, AIR
1990 SC 1962 it has been observed that:
It seems well settled that at the Ss.227-228 stage i.e., stage of framing the charge,
the Court is required to evaluate the material and documents on record with a
view to finding out if the facts emerging therefrom taken at their face value
disclose the existence of all the ingredients constituting the alleged offence. The
Court may for this limited purpose sift the evidence as it cannot be expected even
at that initial stage to accept all that the prosecution states as gospel truth even if
it is opposed to common sense or the broad probabilities of the case.
9. As also in the case of Union of India Vs Prafulla Kumar
Samal, AIR 1979 SC 366 the Supreme Court warned that :
In exercising his jurisdiction under Section 227 the Judge which under the present
Code is a senior and experienced court cannot act merely as a Post-Office or a
mouthpiece of the prosecution, but has to consider the broad probabilities of the
case, the total effect of the evidence and the documents produced before the Court,
any basic infirmities appearing in the case and so on. This however does not mean
that the Judge should make a roving enquiry into the pros and cons of the matter
and weigh the evidence as if he was conducting a trial. AIR 1977 SC 2018 and
AIR 1967 SC 740 and AIR 1970 SC 863 Re. on.
10. In the backdrop of aforesaid legal position, when we examine
the material available on the record of the present case, we find that
the prosecutrix is admittedly a major, college going girl. She is said to
have been abducted forcibly from Balaghat and taken in a Maruti
EECO Car from Balaghat to Lamta, from Lamta to Mandla and from
Mandla to Jabalpur, where she was kept in a house. She has not stated
anywhere that she had told any of the relatives of petitioner Amir that
Amir had forcibly abducted her and was trying to marry her forcibly.
She has not stated anywhere that she had protested and resisted in any
manner when she was being married to the petitioner Amir. After her
marriage, she was taken to Bhopal and Raisen in public transport and
thereafter, brought back to Seoni also by public transport, where the
couple was detained by the police. Since she did not protest at all, at
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least outwardly, petitioners Gulam Waris, Mohd. Hafiz, Sayra Bano,
Samir or Gulam Rajik had no reason to suspect that she was being
coerced into marrying the deceased or she had been abducted and
raped. In these circumstances, even if it is assumed for the sake of
argument that the other petitioners had cooperated with petitioner
Amir in getting him married to a major girl of his choice, they cannot
be said to have committed any offence. There is also no material to
suspect that Amir had abducted the prosecutrix in furtherance of the
common intention of other petitioners or he had entered into a criminal
conspiracy with other petitioners to abduct, forcibly marry, rape or
convert the prosecutrix to Islam.
11. In aforesaid view of the matter, there are no grounds for
presuming that aforesaid petitioners other than Raja @ Amir had
committed any offence, more particularly an offence punishable under
Section 376 (2) (h) read with Section 34 of the I.P.C.; therefore, the
trial Court erred in framing aforesaid charge against them. As such, the
impugned order is not sustainable in the eyes of law so far as
petitioners other than Raja @ Amir are concerned.
12. Accordingly, this criminal revision succeeds so far its relates to
petitioners Gulam Waris, Mohd. Hafiz, Sayra Bano, Samir and Gulam
Rajik. The impugned order 28.09.2016 is set aside in respect of
aforesaid petitioners. They stand discharged in the matter.
13. Trial Court shall proceed with the trial against petitioner Raja @
Amir in accordance with law.
(C.V. Sirpurkar)
Judge
sh
Cr.R.No.20/2017
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Revision No. 20/2017
Raja @ Amir and Others.
Vs.
State of M.P.
Post for :- 11/07/2017
(C.V. Sirpurkar)
Judge
