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Kuldeep & Anr vs State & Anr on 5 February, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 777 / 2016

1. Kuldeep son of Roop Ram, by caste Meghwal, resident of
Tibbi, District Hanumangarh.

2. Jaipal son of Chhotu Ram, by caste Meghwal, resident of
Tibbi, District Hanumangarh.

—-Petitioner
Versus

1. The State of Rajasthan

2. Kamlesh Kumar son of Jeet Ram, by caste Meghwal, resident
of Ward No.50, resident of Ward No.7, Tibbi, District
Hanumangarh.

—-Respondent
__
For Petitioner(s) : Mr. Kaushal Gautam.

For Respondent(s) : Mr. O.P. Rathi, PP.

Mr. P.K. Poonia.

__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
Date of Judgment: 05/02/2018

By way of this revision, the accused petitioners have

approached this Court for challenging the order dated 22.06.2016

passed by the learned Special Judge, POCSO Act Cases,

Hanumangarh in Sessions Case No.11/2015 whereby, the trial

court accepted the application submitted by the complainant

respondent under Section 319 Cr.P.C. and directed summoning of

petitioners as additional accused in the case to face trial with the

charge-sheeted accused Rajesh.

Facts in brief are that the respondent No.2 Kamlesh lodged a

typed report with the Superintendent of Police, Hanumangarh on
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[CRLR-777/2016]

03.12.2014 alleging inter alia that he is a labour by profession. On

23.11.2014 in the afternoon, when he reached home for having

lunch, he saw the accused Kuldeep and Jaipal inside and were

behaving indecenty with his minor daughter Sushri ‘S’ (hereinafter

referred to as ‘the victim’) who was weeping. The accused ran

away when he challenged them. The complainant made inquiry

from his daughter, who confided in him that about six months ago,

finding her alone in the house, Rajesh Meghwal came inside and

after hurling threats to the family members, she was subjected to

rape by Rajesh. He also prepared a video of this indecent activity

in his mobile phone. Thereafter, whenever the victim was alone in

the house, Rajesh would come and he would subject her to

forcible sexual intercourse after giving her threats of making the

indecent video recording public. About 10 days ago, on seeing the

victim alone in the house, Kuldeep and Jaipal also came in and

threatened that they too were having her indecent videos and

would tarnish her image in the society by circulating it on internet.

Under this threat, Kuldeep and Jaipal also subjected the victim to

rape. On 23.11.2014 also, the accused were attempting to force

themselves upon the victim when the complainant arrived and

prevented them from achieving their vicious design. The

complainant approached the family members of the accused and

contacted their elders but he was threatened with dire

consequences and was turned away without any consolation. On

the basis of this report, an FIR No.415/2014 was registered at

Police Station Tibbi for the offences under Sections 450, 376(G),

354/34 and Section 5/6 of the POCSO Act and investigation
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[CRLR-777/2016]

commenced. During the course of investigation, the victim’s

statement was recorded by the I.O. for the first time on

05.12.2014 wherein, she gave out her age to be 14 years and

alleged that about six months ago, Rajesh entered into the house

while she was alone and subjected her to rape. Thereafter, he was

continuously threatening the victim regarding a video clipping

recorded in his mobile and would often subject her to forcible

sexual assault under the fear of making the recording public.

About 10 days ago, Kuldeep and Jaipur also threatened and

subjected her to rape. While the accused were in the process of

ravishing her again, her father came home and on seeing him, the

accused ran away. She told of the entire sequence of events to her

father who lodged the report. She categorically stated that

accused Kuldeep, Jaipal and Rajesh had subjected her to rape on

23.11.2014 and 10 days earlier also.

The investigating officer, after conducting investigation, filed

a charge-sheet only against the accused Rajesh. As per the

charge-sheet, Rajesh and the victim were indulged in a love affair.

Rajesh had provided a mobile phone to the victim. Whenever the

victim was alone, she would invite Rajesh and indulged in physical

relations with him in the house. On a particular day, victim’s

mobile fell into her brother Vikram’s hand whereupon, she told

Rajesh of incident. Rajesh asked his cousin brother Kuldeep who

was on friendly terms with Vikram and requested him to get the

phone back from Vikram. Kuldeep advised Vikram not to raise any

issue about the phone and also assured him that he would tell

Rajesh not to keep in touch with the girl. However, after 5 to 6
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[CRLR-777/2016]

days of discovering the phone, Vikram told his father (the

complainant Kamlesh) of the relationship between Sushri ‘S’ and

Rajesh whereupon, the complainant thrashed and chastised the

victim. On the next day, Sushri ‘S’ while cleaning the lane, told

Rajesh that the entire fault in making disclosure about their

relationship was of Kuldeep resultantly, she had to suffer at the

hands of her father. On this, Rajesh became enraged and hatched

a plan to teach a lesson to Kuldeep. On 28.01.2011, Rajesh called

Kuldeep and asked for his location. At that time, Kuldeep was in

the market. Rajesh reached there on his motorcycle and then

went away looking to the crowded area. Kuldeep apprehended

that Rajesh might quarrel with him. A little later, Rajesh again

located Kuldeep who was at the Bhagat Singh Chowk. Rajesh took

Gagan with him and after arming himself with a sword nad gave a

sword blow on Kuldeep who managed to catch the sword and in

this process, two of his figures were cut. After the assault, Rajesh

and Gagan escaped on their motorcycle. The family members of

Kuldeep came to know of the assault. They, accompanied with

witness Sonu, took Kuldeep to Tibbi Hospital. The police reached

there for recording statement of Kuldeep who refused at that point

of time and used abusive language for Sushri ‘S’ and Rajesh.

Kuldeep called Kamlesh and advised him to file a case against

Rajesh but he refused. Kuldeep was then referred to

Hanumangarh Hospital from where, he was taken to Jaipur and

was treated at Fortis Hospital. A sum of Rs.2,00,000/- was spent

in his treatment at Jaipur. The family members of Kuldeep and

Jaipal pressurised Kamlesh to lodge a case against Rajesh but
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[CRLR-777/2016]

Kamlesh refused. On this, family members of Kuldeep and Jaipal,

approached Kamlesh and complained that Kuldeep had been

assaulted because of the relations of his daughter with Rajesh and

spoke bad words about Sushri ‘S’. Kamlesh came to know that

Kuldeep would be released from the hospital in a couple of days

and might raise a ruckus on coming back. Fearing recrimination,

he consulted with his relatives Harish, Ramsh and Amarchand. On

02.12.2014, Kuldeep returned home after being discharged from

the hospital. Rajkumar and Sodhi Pal, who live in the same

locality, intervened and tried to convince Kuldeep to settle the

dispute but he did not accept the suggestion and assaulted these

persons. A demand was made by Kuldeep’s family members from

the complainant to reimburse the money spent in his treatment of

imputing that the entire root course of dispute was Sushri ‘S’. The

matter flared up on which, police was called. Thereafter, Kuldeep

and Jaipal, etc. lodged a case against Rajesh and Gagan at the

Police Station Tibbi. On the next day, the complainant,

accompanied with his family member Rajkumar and other

relatives, filed a complaint against Kuldeep and his family

members at the Police Station Tibbi regarding threats and

attempted assault. The complainant came to know that the name

of Gagan has also been mentioned in the report filed by Kuldeep

and that possibly the relation of Sushri ‘S’ and Rajesh would be

exposed and their image would be tarnished in the society upon

which, they lodged the complaint of the alleged sexual assault

made on Sushri ‘S’ before the Superintendent of Police

Hanumanarh in which, the names of Kuldeep and Jaipal were also
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[CRLR-777/2016]

introduced alongwith Rajesh levelling an allegation of gang-rape

against all three. The I.O., upon concluding investigation, held that

though the complainant had alleged gang-rape against Kuldeep,

Jaipal as well as Rajesh but as a matter of fact, the facts collected

by him indicated of long standing consensual sexual relationship

between Rajesh and Sushri ‘S’. However, consent was not relevant

because Sushri ‘S’ was a minor. Kuldeep and Jaipal were working

as the labours at the S.B. Resort on the relevant date and had

never participated in the so-called sexual assault made upon

Sushri ‘S’. Accordingly, charge-sheet was filed against Rajesh

Kumar alone for the offences under Sections 376(2)(i)(n) and 450

IPC and Section 3/4 of the POCSO Act. The trial court framed

charges against the accused Rajesh and the proceedings were

commenced. At the trial, statements of the first informant and the

victim Sushri ‘S’ were recorded as PW-1 and PW-2 respectively

whereafter, the prosecution moved an application under Section

319 Cr.P.C. seeking summoning of the petitioners to face trial as

additional accused in the case. The said application was allowed

by the order dated 22.06.2016 which is challenged in the instant

revision.

Shri Kuldeep Sharma, learned counsel representing the

petitioners vehemently urged that the entire crux of allegations as

set out in the belated FIR and in the statements of the victim is

false and fabricated. He contended that the theory regarding the

victim having been subjected to gang-rape by the petitioners is

totally falsified from the material contradictions appearing in the

prosecution case. Whilst the complainant categorically alleged in
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the belated FIR that he saw the victim being sexually assaulted by

the petitioners on 23.11.2014. On the contrary, the victim herself,

upon being examined under Section 161 Cr.P.C., alleged that the

petitioners herein and Rajesh forcibly entered into her house and

subjected her to rape on 23.11.2014. However, in the statement

recorded under Section 164 Cr.P.C., the victim changed the story

and alleged that Kuldeep and Jaipal had just unstrung her Salwar

on 23.11.2014 when her father arrived there. As regards the

sexual assault, she alleged that these two accused had subjected

her to rape 10 days prior to 23.11.2014. In her sworn testimony,

the victim admitted that she never made a complaint to any one

regarding the sexual assault being made upon her by Rajesh

during the period of six months preceding 23.11.2014. She

categorically stated that the accused Kuldeep and Jaipal did not

subject her to rape on 23.11.2014. In her cross-examination, she

virtually admitted her affinity with Rajesh who provided her a

mobile phone. Her brother Vikram came to know of this mobile

phone owing to which, a quarrel ensured in their house. She told

her father that Kuldeep and Jaipal had come with a design to take

advantage of the situation created by the disclosure of her

relations with Rajesh. She also admitted that her brother Vikram

and Kuldeep are friends and that Kuldeep and Vikram had

chastised with Rajesh, the principal accused for having illegal

affairs with the prosecutrix. Owing to this chastisement, Rajesh

assaulted Kuldeep and in the incident, the fingers of Kuldeep were

chopped off.

In view of these material and glaring circumstances
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[CRLR-777/2016]

appearing in the statements of the victim vis-a-vis the other

material available on record, this Court is duly satisfied that the

involvement of the petitioners in this case is totally unwarranted.

It is clearly a case wherein, the complainant as well as the victim

have named the petitioners as assailants owing to bad-blood and

for wreaking vengeance. The victim virtually admitted having

consensual relations with Rajesh for a period of six months

preceding 23.11.2014. Thus, there was a justification for the

victim not to make a disclosure of the said relationship. However,

there is no allegation that the petitioners were also on good terms

with the victim and thus, if at all the petitioners had subjected her

to rape 10 days before 23.11.2014, then there was no reason for

her to keep silent and not to make a complaint regarding the

same to her family members. In the first statement of the victim

recorded by the I.O. on 05.12.2014, she alleged that the

petitioners subjected her to rape about 10 days before 23.11.2014

and on 23.11.2014 as well but when cross-examined, she denied

that these persons raped her on 23.11.2014. The admission made

by the prosecutrix in her sworn statement that Vikram and

Kuldeep both chastised Rajesh regarding his affairs with the

prosecutrix clearly establishes that Kuldeep could not have taken

advantage of the prosecutrix in the manner alleged by her in the

sworn statement. Apparently, the said story is falsified from the

material available on record.

Hence, this Court is of the firm opinion that the trial court

was not justified in accepting the application submitted by the

prosecution under Section 319 Cr.P.C. and directing summoning of
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[CRLR-777/2016]

the petitioners as additional accused by exercising powers under

Sections 319 Cr.P.C. The impugned order ex-facie does not stand

to scrutiny.

Resultantly, the instant revision deserves to be and is hereby

allowed. The impugned order dated 22.06.2016 passed by the

learned Special Judge, POCSO Act Cases, Hanumangarh is

quashed and set aside. The trial of the charge-sheeted accused

Rajesh shall continue as per law.

(SANDEEP MEHTA),J.

tikam daiya/

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