Yuvraj & Anr vs State & Anr on 9 August, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 709 / 2017

1. Yuvraj Son of Shri Bhanwar Lal Mali, Aged About 22 Years, By
Caste Mali, Resident of Tinwari, Police Station Mathania, District
Jodhpur.

2. Magh Raj Son of Shri Sewa Ram Dhoot Maheswari, Aged About
54 Years, By Caste Maheshwari, Resident of Tinwari, Police Station
Mathania, District Jodhpur.

—-Petitioners
Versus

1. State of Rajasthan.

2. Laxmi Daughter of Kana Ram @ Kanhaiya Lal Mali, Resident of
Nya Bera, Tinwari, Police Station Mathania, District Jodhpur.

—-Respondents
__
For Petitioner(s) : Mr.Sunil Mehta.

For Respondent(s) : Mr.R.K.Bohra, P.P., Mr.Dinesh Jain.
__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order
Date of Pronouncement : 09/08/2017

The instant revision has been preferred by the accused

petitioners Yuvraj and Maghraj being aggrieved of the order dated

15.5.2017 passed by the learned Special Judge, SC/ST Act Cases,

Jodhpur in connection with F.I.R. No.105/2015 P.S. Mathaniya

whereby the learned trial court proceeded to reject the negative

F.R. No.198/2016 and took cognizance for the offences under

Sections 376(2)(N) I.P.C. and Section 5(L)/6 of POCSO Act against

the petitioner Yuvraj and Section 376/511 I.P.C. and Section

3(C)/4 of POCSO Act against the petitioner Maghraj and directed

that they be summoned through warrant of arrest.

(2 of 7)
[CRLR-709/2017]

Facts in brief are that the complainant victim Mst.L aged 17

years lodged a written report at the Police Station Mathaniya on

8.7.2015 alleging that about three months ago i.e. in the month of

April, she had gone to the mobile repair shop of the petitioner

Yuvraj at village Tinwari for getting her mobile repaired. Yuvraj

told her that the repairing process would take some time and

asked her to wait at the shop. He sent for a bottle of Pepsi and

two empty glasses, went inside the shop and brought back the

glasses filled with Pepsi and offered one to the complainant. The

complainant felt drowsy after drinking the cold drink. Taking

advantage of her drowsiness, the accused caught hold her hand

and took her inside the shop. She regained senses about two

hours later upon which Yuvraj told that he had indulged in sexual

intercourse with her and had also prepared a video clip of the

compromising moments in his mobile. She was threatened that if

she disclosed the incident to anybody, the video clip would be

circulated and she would be maligned in the society. He further

told the victim that he had prepared numerous indecent video

clips of other girls and till date, nobody had been able to take

action against him. Mst.L got terrified because of the threats given

by the accused and thus, did not disclose about the incident to

anybody. She requested the accused to delete the video clip but

he refused to do so and sent her back after repairing her mobile.

READ  Jairam Yadav vs State Of Bihar & Anr on 7 April, 2017

There was only one mobile phone in her family and the accused

used to call on that mobile number from various phones and

talked only if the prosecutrix took the call. She was repeatedly

called by the accused to his shop and upon resistence being
(3 of 7)
[CRLR-709/2017]

shown, she was threatened that the video clip would be made

viral. In this manner, the accused blackmailed and called the

prosecutrix to his shop and exploited her sexually on no less than

3-4 occasions behind the partition of his shop. Numerous

threatening messages were also sent by the accused on the

mobile number of her father. About 7-8 days before lodging of the

report, the accused Yuvraj once again called her to his shop where

she saw Maghraj sitting there from before. Yuvraj told the

prosecutrix that she should go with Maghraj and do as he desired.

She was forcibly sent behind the shop with Maghraj. She pleaded

with Maghraj that he was a fatherly figure for her and should not

indulge in the vile act. Maghraj didn’t listen to her pleas and told

her that he was also having her video clip. He lay down and

opened his own clothes and tried to disrobe the prosecutrix, who

started shouting on which Maghraj became apprehensive and went

away. She was continuously given threats by both the accused to

bow down to their illicit deands or face the consequence of the

video clip being circulated in the village. She claimed that she

became highly tensed up because of these threats and finally

mustered the courage and told her parents of these incidents. Her

father convened a village meeting and called Maghraj who

threatened that he would exploit the girl and would circulate the

video clip.

On the basis of this report, F.I.R. No.105/2015 was lodged at

the P.S. Mathaniya and investigation commenced. The

Investigating Officer conducted detailed investigation and filed a

negative Final Report finding the entire story of the victim to be
(4 of 7)
[CRLR-709/2017]

concocted and cooked up. Notice of the Final Report was given to

the prosecutrix, who appeared in the court and submitted a

protest petition. Her statement was recorded under Section 200

Cr.P.C. whereafter, the trial court proceeded to take cognizance

against the accused persons in the above terms by the impugned

order dated 15.5.2017 and summoned them through warrant of

arrest. Being aggrieved, the accused petitioners have approached

this Court by way of the instant revision in order to assail the

order taking cognizance.

Shri Sunil Mehta learned counsel representing the petitioners

vehemently urged that the Investigating Officer assigned detailed

and cogent reasons for discarding the case set up by the

prosecutrix and finding the case to be false and concocted, he

READ  Pidathala Satyam Babu vs The State Of Andhra Pradesh, Rep. ... on 31 March, 2017

submitted a detailed negative Final Report. The trial court, did not

advert to or discuss any of the reasons assigned in the Final

Report and took cognizance against the accused in a mechanical

fashion and unjustly summoned them to face trial for serious

offences. He contended that ex-facie, the story set up by the

prosecutrix that she was sexually assaulted by the petitioner

Yuvraj under the effect of some intoxicant mixed in cold drink is

unbelievable. He further urged that so far as the petitioner

Maghraj is concerned, the order taking cognizance against him is

ex-facie illegal for the reason that even the admitted highest case

set up by the prosecutrix in her complaint and in her statement

under Section 200 Cr.P.C. does not disclose the necessary

ingredients of the offences attributed to him. With these

submissions, Shri Mehta craved that the impugned order should
(5 of 7)
[CRLR-709/2017]

be set aside.

Per contra, learned Public Prosecutor and learned counsel

appearing for the complainant vehemently opposed the

submissions advanced by the petitioners’ counsel and urged that

there was no occasion for the minor girl to have foisted a false

case of rape against the accused persons while putting her own

reputation in the society at stake. They contended that the

victim’s allegation regarding the accused having subjected her to

forcible sexual assault is duly corroborated by the video clipping

recovered during investigation and hence, there cannot be any

justification to interfere in the well reasoned order taking

cognizance passed by the court below.

I have given my thoughtful consideration to the arguments

advanced by the learned counsel for the parties and have gone

through the impugned order and the other material placed on

record.

At the stage of taking cognizance, the Court is required only

to ponder over the existence of a prima-facie case and probative

value of the evidence available on record is not to be discussed in

detail. Suffice it to say that so far as the petitioner Yuvraj is

concerned, from the entire case set up in the revision, and even in

the detailed Final Report given by the Investigating Officer, there

is no material whatsoever which can even remotely satisfy the

court that the victim who is a minor girl had any occasion to

falsely implicate the accused Yuvraj. By lodging the case of

forcible sexual assault and preparation of the indecent video

clipping, she definitely took the risk of putting her own reputation
(6 of 7)
[CRLR-709/2017]

at stake in the society. The Investigating Officer appears to have

been swayed by totally extraneous considerations and virtually

acted as an adjudicator while giving the negative Final Report. The

scope of an Investigating Officer’s powers while investigating a

case of rape with a minor is to act as a fact finding agency and not

READ  Suresh Kumar Singh Vs. State Of U.P. on 6 May, 2009

to act as an adjudicator. On going through the negative Final

Report, I am of the opinion that the Investigating Officer traversed

well beyond his domain while giving the negative Final Report qua

the petitioner Yuvraj. Thus, I find no reason to interfere in the

impugned order taking cognizance to the extent of the petitioner

No.1 Yuvraj. I am least impressed by the argument that the

direction to summon the petitioner Yuvraj by warrant of arrest is

not justified. Even if for a moment, it is accepted that the story

regarding the prosecutrix having been administered some drug in

cold drink and then being subjected to rape under the effect of

intoxication is disbelieved and it is presumed that the sexual

relations between Yuvraj and the girl were consensual, then too,

evidently the victim being a minor, was not competent to give

consent for such relations. Having indulged in sexual activities

with minor girl, the petitioner Yuvraj is definitely liable to face

prosecution for grave offence of forcible sexual assault upon a

minor. Thus, the impugned order has to be sustained to the extent

of the accused Yuvraj.

So far as the accused petitioner No.2 Maghraj is concerned,

even if the highest case of prosecution is accepted then too, at

best the said accused is alleged to have exposed himself in front

of the prosecutrix and tried to disrobe her as well and nothing
(7 of 7)
[CRLR-709/2017]

beyond that. She shouted on which Maghraj became frightened

and ran away. The learned trial court has taken cognizance against

the petitioner Maghraj for the offence under Section 3(C)/4 of

POCSO Act which deals with penetrative sexual assault and for the

offence under Section 376/511 I.P.C. i.e. attempt to commit rape.

If the victim’s allegations qua the accused Maghraj are admitted to

be true as such, then too the same would not be covered by either

penetrative sexual assault or by an attempt to commit rape. The

offence if any, made out against the accused Maghraj would be

covered by Section 354 I.P.C. and Section 11 of the POCSO Act

and the impugned order deserves to be modified to that extent.

In view of the discussion made above, the revision deserves

to be accepted in part. While the impugned order dated 15.5.2017

is upheld in entirety qua the petitioner Yuvraj, the same is set

aside to the extent, cognizance was taken against the petitioner

No.2 Maghraj for the offences under Sections 376/511 I.P.C. and

Section 3(C)/4 of POCSO Act and instead thereof, he shall be

summoned through a bailable warrant for the offences under

Section 354 I.P.C. and Section 11 of POCSO Act.

The revision and the stay application are disposed of in the

above terms.

(SANDEEP MEHTA)J.

/tarun goyal/

Leave a Comment

Your email address will not be published. Required fields are marked *