Shri R.D.Namdev vs The State Of Madhya Pradesh Thr on 10 July, 2017

-( 1 )- Cr.R.No. 112/2017

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No. 112/2017

R.D. Namdev
Versus
State of M.P.
———————————————————————————-
Shri R.P. Singh, Advocate for the applicant.
Shri R.K. Awasthi, Public Prosecutor for the
respondent/State.
———————————————————————————-
ORDER

(10.07.2017)
The instant Criminal Revision takes exception to
the order dated 20.01.2017 passed in Sessions Trial
No. 567/2016 by Second Additional Sessions Judge,
Dabra, District Gwalior (M.P.) which led to framing of
charges against the present applicant for commission
of offences punishable under Sections 457, 450, 376
(D) and 506 Part II of Indian Penal Code, 1860 (for
brevity ‘
IPC’).

2- The applicant is alleged to have committed rape
on the prosecutrix on the night intervening
03.07.2014 and 04.07.2014 by forcefully entering into
the house of the prosecutrix along with co-accused
persons. The prosecutrix lodged an FIR at about 11:00
am based on which the respondent registered crime
No. 637/2014.

3- As per the pleadings made by the applicant, he
volunteered for DNA test before the respondent and
clearly narrated the background in which the

-( 2 )- Cr.R.No. 112/2017

respondent has registered a case against the applicant
in connivance with one Jitendra Prajapati who holds
grudge against the present applicant as the applicant
was responsible for termination of Jitendra Prajapati
from the post of ADOP due to the reason that
employment was secured by submitting a forged caste
certificate, although, it appears that the respondent
found enough material against the applicant for
subjecting him to trial which led to filing of charge-
sheet in which the present applicant and co-accused
Sukha Parihar @ Shalu Parihar have been named as
an accused.

4- The trial Court vide order dated 20.01.2017
recorded the contention of both the parties and
concluded that the material is sufficient to subject the
applicant for trial.

5- Learned counsel for the applicant has contended
that the applicant is a reputed citizen and has an
unblemished record and has been falsely implicated
by the prosecutrix at the instance of Jitendra Prajapati
due to previous enmity with him. Learned counsel for
the applicant has criticized the impugned order on the
ground that the court below did not consider the
antecedent of prosecturix which allegedly establish
that the prosecutrix is in the habit of making false
complaints against the individuals and later settles the
dispute by taking money. He further drew attention of
this Court to the fact that the DNA report which was
volunteered by the applicant did not establish the
involvement of the applicant. Thus, he submitted that
the court below ought to have discharged the present

-( 3 )- Cr.R.No. 112/2017

applicant by exercising powers under Section 227 of
the Code of Criminal Procedure, 1973. It was also
vehemently argued that the affidavit given by the
husband of the prosecutrix clearly mention the shady
character of the prosecutrix which is an evidence
enough to discard the entire prosecution story.
6- Per contra, learned counsel for the respondent
submitted that the contents of the applicant are mere
statements which have not been substantiated by any
document or evidence and even otherwise the
submission of the applicant can be termed as a
defence version which is beyond the domain of the
consideration at the stage of framing of charges.
7- I have considered rival contentions of the parties
and have perused the documents placed on record.
8- The primary contentions made before this Court
is based on the antecedent of the prosecutrix for
which it is contended that in view thereof the
prosecutrix deserves to be interfered with. This Court
is not inclined to accept this proposition because the
criminal prosecution cannot be stifled with on mere
bald allegation without producing any evidence in
support of the same. The scope of the trial is to
examine the prosecution story which reflects
commission of offence occurred on the night between
3rd and 4th of July, 2014. It can be observed that the
story may be concocted but no indulgence can be
shown without affording an opportunity to the
prosecution to establish its allegation by leading
convincing or cogent evidence. The antecedents of
prosecutrix may have some bearing on the outcome of

READ  Smt. Krishna vs State Of U.P. on 29 May, 2017

-( 4 )- Cr.R.No. 112/2017

the trial, but the statement of the prosecutrix filed
along with the charge-sheet can only be discredited by
subjecting her to cross-examination.
9- The next contention which has been canvassed
before this Court is based on DNA report which was
the outcome of the test volunteered by the applicant.
The applicant submits that since he volunteered the
test, his bona fide is establish and the result of the
test has put a dent in the prosecution story. Therefore,
the applicant prayed for indulgence of this Court. This
contention looks attractive, although, cannot be given
any credence by this Court at the stage of framing of
charges because the court is required to examine the
entire charge-sheet and the contents of the report are
necessary to be subjected to cross-examination by the
prosecution or the prosecutrix and only thereafter the
same can be relied upon.

10- The consideration of the entire application
moved by the present applicant goes to show that the
applicant seeks indulgence by this court based on
circumstances and material which will be produced at
the stage of defence evidence. The instant application
has been preferred under Section 397 read with
Section 401 of Cr.P.C and the Apex Court in the case
of State of Orissa Vs. Debendra Nath Padhi,
(2005) 1 SCC 568 has laid down the following
proposition:

18. We are unable to accept the aforesaid
contention. The reliance on Articles 14 and 21 is
misplaced. The scheme of the Code and object with
which Section 227 was incorporated and Sections
207 and 207-A omitted have already been noticed.
Further, at the stage of framing of charge roving

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and fishing inquiry is impermissible. If the
contention of the accused is accepted, there would
be a mini-trial at the stage of framing of charge.
That would defeat the object of the Code. It is well-
settled that at the stage of framing of charge the
defence of the accused cannot be put forth. The
acceptance of the contention of the learned
counsel for the accused would mean permitting
the accused to adduce his defence at the stage of
framing of charge and for examination thereof at
that stage which is against the criminal
jurisprudence. By way of illustration, it may be
noted that the plea of alibi taken by the accused
may have to be examined at the stage of framing
of charge if the contention of the accused is
accepted despite the well settled proposition that
it is for the accused to lead evidence at the trial to
sustain such a plea. The accused would be entitled
to produce materials and documents in proof of
such a plea at the stage of framing of the charge,
in case we accept the contention put forth on
behalf of the accused. That has never been the
intention of the law well settled for over one
hundred years now. It is in this light that the
provision about hearing the submissions of the
accused as postulated by Section 227 is to be
understood. It only means hearing the
submissions of the accused on the record of the
case as filed by the prosecution and documents
submitted therewith and nothing more. The
expression “hearing the submissions of the
accused” cannot mean opportunity to file material
to be granted to the accused and thereby
changing the settled law. At the state of framing
of charge hearing the submissions of the accused
has to be confined to the material produced by the
police.

11- Thus, the scope of consideration at the stage of
framing of charges is very limited. This has also been
laid down by the Hon’ble Supreme Court in case of
Chitresh Kumar chopra Vs. State (Government of
NCT of Delhi), (2009) 16 SCC 605, in following
terms:

READ  Boby vs State Of U.P. on 30 May, 2017

“25. It is trite that at the stage of framing of

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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 or
offences. For this limited purpose, the court may
sift the evidence as it cannot be expected even at
the initial stage to accept as gospel truth all that
the prosecution states. At this stage, the court has
to consider the material only with a view to find
out if there is ground for “presuming” that the
accused has committed an offence and not for the
purpose of arriving at the conclusion that it is not
likely to lead to a conviction. (See: Niranjan Singh
Karam Singh Punjabi V. Jitendra Bhimraj
Bijjaya)”

26. In Som Nath Thapa, a three-Judge
Bench of this Court explained the meaning
of the word “presume”. Referring to
dictionary meanings of the said word, the
Court observed thus:

“32…if on the basis of materials on record, a
court could come to the conclusion that
commission of the offence is a probable
consequence, a case for framing of charge
exists. To put it differently, if the Court were to
think that the accused might have committed
the offence it can frame the charge, though for
conviction the conclusion is required to be that
the accused has committed the offence. It is
apparent that at the stage of framing of
charge, probative value of the materials on
record cannot be gone into; the materials
brought on record by the prosecution has to be
accepted as true at that stage”.

12- The reproduced excerpt of the judgment of the
Hon’ble Apex Court leaves no iota of doubt that the
contentions made by the applicant are yet to be
established before the trial court which can only be
done while leading evidence and thus, no scope is
available with this Court to show any indulgence in
the facts of the present case. While recording this
opinion, this court is not expressing any view on the

-( 7 )- Cr.R.No. 112/2017

merits of the case and the contents raised before this
court will be available to the applicant at the stage of
trial. Before parting, it is apposite to repose
confidence in the applicant who has raised several
contentions with respect to the underlying design
pinched by the prosecutrix or one Jitendra Prajapati
that the trial Court has ample power of initiating
prosecution against any individual who has falsely
deposing before the court, although, this court at this
stage cannot record any opinion in this regard.
13- Taking this view of the matter, the instant
criminal revision is hereby dismissed being devoid of
merits.

(S.K.Awasthi)
Judge

Aman

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