HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 873 / 2017
Prem Raj Meena S/o Shri Ram Vilas, Aged About 29 Years, By
Caste Meena, Resident of Village Jodali, Tehsil-Sapotara, District
Karauli (Rajasthan).

—-Petitioner
Versus

1. State of Rajasthan.

2. Chhoga Singh S/o Shri Keshar Singh, By Caste Rawat, Resident
of Village Bheraguda, Tehsil-Bheem, District-Rajsamand (Raj.)

—-Respondents
__
For Petitioner(s) : Mr. Vikram Singh.

For Respondent(s) : Mr. Rajesh Bhati, PP.

None present for respondent No.2.

__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Order
Date of Judgment: 15/11/2017

By way of this revision, the petitioner accused Prem Raj

Meena has approached this Court for challenging the order dated

03.06.2017 passed by the learned Additional Sessions Judge,

Rajsamand in Sessions Case No.32/2016 whereby, the learned

trial court directed framing of charge against the petitioner for the

offence under Section 376 IPC.

Notice of the revision has been served on the complainant

respondent No.2 but nobody has put in appearance on his behalf

to argue the matter.

Facts in brief are that Chhog Singh respondent No.2 lodged a

written report at the Police Station Diver, District Rajsamand on
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24.02.2016 alleging inter alia that he received a call on the very

same day that his daughter Mst. ‘P’ was sitting in a destitute

condition at the police station Diver. On this, the complainant

immediately rushed to the police station with his wife and came to

know that his daughter had been found roaming around carelessly

at Deogarh Bus Stand. On inquiry being made from the girl, she

disclosed that her teacher Prem Raj Meena had called her one day

before the incident and advised her to take the bus for Karauli

from Deogarh. On this, the girl went to Deograrh Bus Stand and

was searching for the bus when the people saw her roaming

around alone and being concerned about her welfare, she was

brought to the police station. The girl divulged that three years

earlier, when she was studying in Class 8th, Prem Raj Meena had

established physical relations with her on numerous occasions and

had sexually exploited her repeatedly after offering her an

allurement of giving her money. The teacher had been transferred

a month ago and right uptill then, he was continuously sexually

exploiting the girl. In inquiry by police, the girl gave out her age to

be 14 years. On the basis of this report, an FIR No.26/2016 was

registered at Police Station Diver, District Rajsamand for the

offences under Section 376 IPC and Sections 4, 5 and 6 of the

POCSO Act and investigation commenced. During investigation,

when the girl was examined under Section 161 Cr.P.C., she stated

that she started her education at the Government Sr. Secondary

School, Bheragudha in the year 2001. She cleared the 8 th

Standard Examination from the very same school. Prem Raj

Meena came to be posted in the school in the year 2012-13. He
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was an English Teacher and thus, the victim and various other

girls of the village, went to the rented room in the village Badhana

where Prem Raj used to live. Prem Raj gave her lewd looks and

touched her body, cheeks, etc. in an unchaste manner and also

used to kiss her. Since Prem Raj was a teacher, she did not pay

any attention to his unwarranted advances and did not oppose the

same. A year after her marriage with Laxman Singh, she had been

provided a Spice Mobile phone with a sim. On one particular day,

Prem Raj called her on her mobile and asked her to come to his

room at Badhana. She went to the rented room of Prem Raj

located near Raj Marg Hotel at Baghana on her bicycle. Prem Raj

was all alone in the room. He caught hold of the prosecutrix and

despite her opposition, forcefully pushed her down on the cot,

opened her leggings and subjected her to forcible intercourse.

Prem Raj threatened that she should not divulge the incident to

anybody. Fearing the threats, she did not tell her father about the

incident. The prosecution and Prem Raj were in touch over mobile

phone. On 24.02.2016, she called Prem Raj and requested him

that she wanted to visit his house on the occasion of his sister’s

wedding. On this, Prem Raj told her that she should board a bus

and promised that he would marry her. She was threatened that in

case, she did not accede to his demands, she would be maligned

in the society. On 24.02.2016, the prosecutrix took a tempo from

her village at 11 O ‘Clock’ and went to Deogarh bus stand. There

she was inquiring about the bus going to Karauli. While she was

making inquiries, the booking clerk gave a call to the Deogarh

Police who took her to the police station. From there, her parents
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were called and then, she divulged the entire sequence of events

to the police and the report was lodged. In the said statement, the

victim categorically gave out her age to be 20 years. In the

concluding part of the statement, she stated that about an year

ago, Prem Raj called her to his room under the pretext of meeting

her and then subjected to sexual intercourse against her desire.

The victim’s statement was recorded under Section 164 Cr.P.C. on

29.02.2016. In the said statement, she categorically stated that

Prem Raj, Mitthu Singh, Kailash and Madhu Singh used to come at

her school for teaching them. Prem Raj Meena was an English

Teacher. She was married to Laxman Singh. She categorically

stated that Prem Raj never called her to his room and that he

never subjected her to sexual intercourse. She emphatecially

stated that Prem Raj Meena interacted with her only while she was

studying in the school and never thereafter. He never indulged in

any untoward act with her.

Be that as it may. Inspite of these categoric admissions

made by the prosecutrix in her statement recorded under Section

164 Cr.P.C., the investigating officer proceeded to file a charge-

sheet against the accused petitioner for the offence under Section

376 IPC. The learned trial court directed framing of charge against

the petitioner for the offence under Section 376 IPC by order

dated 03.06.2017 which is under challenge in this revision.

I have heard and considered the arguments advanced by the

learned counsel for the parties and have gone through the

material available on record as well as the impugned order.

While considering the aspect of charges, the learned Trial
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Judge, relied upon the victim’s statement recorded under Section

161 Cr.P.C. and came to a conclusion that the said statement gave

rise to an inference that the victim had been subjected to forcible

sexual intercourse by the petitioner and thus, he should be

charged and tried for the offence under Section 376 IPC. The Trial

Judge totally ignored the victim’s statement recorded under

Section 164 Cr.P.C. and chose to rely on the one recorded by the

police under Section 161 Cr.P.C. while passing the impugned order.

Having appreciated the entirety of the facts and

circumstances as available on record, this Court is of the opinion

that though both the statements of the victim, one recorded under

Section 161 Cr.P.C. and the other recorded under Section 164

Cr.P.C., fall within the category of previous statements but without

any doubt, the statement recorded under Section 164 Cr.P.C.

cannot be outright eschewed from consideration while considering

the aspect of charge as the same is recorded on oath. It need not

be gainsaid that benefit of any infirmity or lacuna in the

prosecution case has to go to the accused. Since the prosecutrix

virtually exonerated the accused in her statement recorded by the

learned Magistrate under Section 164 Cr.P.C., the said statement

has to be given credence. Further, even if the victim’s statement

recorded under Section 161 Cr.P.C. is considered then also,

apparently the circumstances mentioned therein indicate that

purely consensual relations were established between the victim

and the accused petitioner herein. The victim gave out her age in

both the statements as 20 years. Though the FIR was registered

for the offences under the POCSO Act, the investigating officer, did
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not file a charge-sheet for the offence thereunder. The victim

admitted that despite being married to Laxman Singh, she used to

visit the rented room of the accused voluntarily. On the fateful

day, on a simple call given by the accused, she readily went to his

rented room and the accused allegedly subjected her to sexual

intercourse against her desire. Had there been an iota of truth in

this allegation, there was nothing to prevent the victim from

disclosing the incident to her parents or her husband. The victim’s

silence for a period of nearly one year clearly indicates that the

relations, if any, established between her and the accused were

purely consensual.

In this background, I am of the firm opinion that the learned

Trial Judge was totally unjustified in directing framing charge

against the accused petitioner for the offence under Section 376

IPC. Ex-facie, the circumstances available on record are sufficient

to satisfy the court that there is absolute lack of connecting

material on the record so as to justify framing of the sole charge

against the petitioner for the said offence because (a), the

sequence of events set out in the victim’s statement recorded

under Section 161 Cr.P.C. gives clear inference of consensual

sexual relations and (b) in the statement recorded under Section

164 Cr.P.C., there is a categoric denial of her having been

subjected to sexual intercourse by the present petitioner.

In view of the above discussion, the instant revision

deserves to be and is hereby allowed. The impugned order dated

03.06.2017 passed by the learned Additional Sessions Judge,

Rajsamand whereby charge was framed against the petitioner for
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the offence under Section 376 IPC is hereby quashed and set

aside. The petitioner is discharged from the said offence.

(SANDEEP MEHTA),J.

tikam daiya/