HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 581 / 2016
1. Chunni Lal @ Chuna Lal S/o Pannaji
2. Roopa Ram S/o Keshaji
Both by caste Janwa Choudhary, Residents of Bali, District Pali
(Raj.)
—-Petitioner
Versus
1. State of Rajasthan
2. Khim Singh S/o Tikma Ram, by caste Janwa Choudhary, R/o
Beda Badlawala, Bali, Distt. Pali
—-Respondent
__
For Petitioner(s) : Mr. Vineet Jain
For Respondent(s) : Mr. O.P. Rathi, P.P.
Mr. Vikram Choudhary
__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Order
05/04/2018
By way of this revision, the accused petitioners have
approached this court for challenging the order dated 29.04.2016
passed by learned Additional Sessions Judge, Bali, District Pali in
Sessions Case No.9/2013, whereby charges were framed against
the petitioner No.1 Chunni Lal @ Chunna Lal for the offences
under Sections 363 and 366 IPC and against the petitioner No.2
Roopa Ram for the offences under Sections 366, 376 and 344 Ipc.
(2 of 9)
[CRLR-581/2016]
Facts in brief are that one Sakaram filed a missing
persons report on 14.02.2010 at the Police Station Falna alleging
inter alia that his wife Smt. ‘S’ was missing from 13.02.2010 and
should be traced out. Khim Singh, father of the lady, lodged a
complaint with the Superintendent of Police, Pali on 19.02.2010
alleging inter alia that his minor daughter Mst. ‘S’ (date of birth
30.06.1993) had gone missing on 13.02.2010. It was further
alleged that he came to know on 18.02.2010 that his daughter
had left Dantiwada for going to Bali and on the way, Chunni Lal
S/o Pannaji, who used to work at the complainant’s agricultural
field, forcibly took her away on a motorcycle and had secretly
confined her. He further alleged that Chunni Lal and Suki used to
threaten him that they would forcibly marry his daughter with
Roopa Ram and expressed an apprehension that Chunni Lal might
have kidnapped his minor daughter for marrying her off with his
brother in law Roopa Ram S/o Kesaji.
On the basis of this complaint, an FIR No.16/2010 was
registered at the Police Station Bali for the offence under Section
363 IPC and investigation was commenced. The police initiated
search for the missing girl, who suo moto appeared at the Police
Station Bali on 08.05.2010 and stated that her husband Saka Ram
had assaulted her on 12.02.2010, and thus, she left the
matrimonial home, boarded a private bus from Dantiwada without
informing anybody and went to Falna. From Falna, she caught a
train going to Mumbai on the very same day. On 14.02.2010, she
got down at Mumbai and called her school friend Sushila W/o
Natwar Lal and stayed at her house. She continued to stay at
(3 of 9)
[CRLR-581/2016]
Mumbai for two months at Sushila’s house and did not inform
anybody because she apprehended that her father would force her
to return to her husband’s house. She categorically stated that
she had not been kidnapped and had gone to Mumbai of her own
free will. She also stated that Chunni Lal and his wife were not
responsible for her disappearance. Her friend Sushila advised her
to approach the police, on which she came to Falna with Sushila
and went to the police station to give her voluntary statement.
The girl also stated that she wanted to return to Mumbai with her
friend Sushila because her husband used to beat her and her
father might force her to go to the matrimonial home against her
desire. In view of this statement, the girl was sent to the Nari
Niketan on 08.05.2010 under the Magistrate’s order. She was
again produced before the Magistrate on 10.05.2010 and her
statement was recorded under Section 164 CrPC, wherein also,
she categorically stated that she had not eloped with anybody, nor
had she been kidnapped and had rather gone to Mumbai of her
own free will and stayed there with her friend Sushila. In this
statement, she expressed that she wanted to go with her parents.
Accordingly, she was sent with her father. Upon completion of
investigation, the Investigating Officer proceeded to submit a
negative final report in the court concerned on 09.06.2010. The
complainant Shri Khim Singh, however, was not satisfied with the
negative final report and accordingly a protest petition was
submitted in the court of learned ACJM, Bali. Learned Magistrate
took recourse to recording of statements of witnesses under
Sections 200 and 202 CrPC. The girl was examined under Section
(4 of 9)
[CRLR-581/2016]
202 CrPC on 06.07.2011, i.e. after nearly a year and five months
of the alleged incident and in such statement, she totally changed
her earlier version and alleged that she was kidnapped by Chunni
Lal on 13.02.2010 who took her to Mumbai in a train and forced
her to stay with his brother-in-law Roopa Ram. Then she was
taken to Vasai, where Roopa Ram subjected her to rape.
Thereafter she was taken to Thane, Maharashtra and was again
brought back to Vasai. Roopa Ram then took her to Karnataka.
She was kept in Sagar city Karnataka for a month. Roopa Ram
took her to visit Matheran, Badlapur etc. During this period of
almost two months, Roopa Ram regularly subjected her to
forcible sexual intercourse. Finally Roopa Ram brought her back
to Bali and took her to the house of a police officer. She was
threatened to give a statement that she had gone to Mumabi of
her own free will and had stayed with Sushila. She became
frightened because of the threat and that is why she gave the
statements favouring Roopa Ram during investigation. On the
basis of these statements, learned ACJM proceeded to accept the
protest petition filed by the complainant and took cognizance
against the petitioners for the above offences by the order dated
02.04.2012 and summoned them through warrant of arrest. The
petitioners challenged the said order by filing a revision before the
learned Additional Sessions Judge, Fast Track, Bali and then by
way of a miscellaneous petition No.3100/2012 filed before this
court and while deciding the same, the warrants of arrest issued
against the petitioner were converted into bailable warrants. The
petitioners appeared before the learned Magistrate, whereupon
(5 of 9)
[CRLR-581/2016]
they were released on bail. The case was committed to the court
of Additional Sessions Judge, Bali, who proceeded to frame
charges against the petitioners in the above terms by the
impugned order dated 29.04.2016, which is assailed by way of
this revision.
Mr. Vineet Jain, learned counsel representing the
petitioners, vehemently urged that ex facie the story set up in the
belated statement of the prosecutrix recorded under Section 202
CrPC is false and fabricated. The prosecutrix, upon being
examined during the course of investigation of the FIR
No.16/2010 under Sections 161 as well as 164 CrPC, categorically
refuted the suggestion that she had been kidnapped or had been
subjected to rape. He urged that the statement of the girl was
recorded under Section 164 CrPC on 10.05.2010 at which point of
time, she was free from any influence whatsoever because the
learned Magistrate had sent her to Nari Niketan before recording
such statement. He further urged that even if the highly
exaggerated version as stated by the girl in her statement
recorded by the Magistrate under Section 202 CrPC is accepted,
then too the case is not such wherein the petitioners should be
made to stand trial for the offences alleged. He urged that in the
said belated statement, the girl alleged that she was kidnapped
from Bali and was taken to Maharashtra, Karnataka etc. in public
transport vehicles and was made to stay in thickly populated
areas, but during the course of this entire period of two months,
she never raised any protest whatsoever before anyone
suggesting that she had been kidnapped or was being taken
(6 of 9)
[CRLR-581/2016]
against her desire. He, thus, implored the court to accept the
revision and quash the impugned order framing charges.
Learned Public Prosecutor did not seriously challenge
Mr. Jain’s arguments and candidly conceded that the police did not
find the offences proved against the petitioners and as such, the
trial court should not have framed charges against the accused
petitioners.
Per contra, learned counsel Mr. Vikram Choudhary,
representing the complainant, vehemently opposed the
submissions advanced by the petitioner’s counsel. He urged that
the girl was under the influence and pressure of the accused when
she was examined during the course of investigation. However,
when she was examined under Section 202 CrPC during the
proceedings of the protest petition, the girl divulged true version
of the incident and made clear allegations against the petitioners
and in this background, Mr. Choudhary urged that the
circumstances do not warrant interference in the impugned order
framing charges.
I have given my thoughtful consideration to the
arguments advanced at the bar and have gone through the
impugned orders as well as the original record. It is cardinal
principal of criminal law that the earliest version of a witness is to
be given more credence as against the subsequent one because
the interregnum gives opportunity of contemplation,
exaggerations and fabrications. The situation in the case at hand
is clearly one where the prosecution exaggerated and concocted
its case in the highly belated improved statement of the
(7 of 9)
[CRLR-581/2016]
prosecutrix recorded during the enquiry under Section 200 and
202 CrPC, and set up a story totally different from the one as
divulged during investigation. After the alleged incidence of her
disappearance, the prosecutrix, herself appeared at the police
station on 08.05.2010 and gave a categoric statement to the
Investigating Officer under Section 161 CrPC that she had not
been kidnapped by anybody and that she had gone away from her
husband’s house of her own free will because he used to assault
her. The Magistrate sent her to Nari Niketan after the statement
of the girl was recorded under Section 161 CrPC as she expressed
an apprehension of harm even against her father. The girl was
then produced before the court on 10.05.2010 and her statement
was recorded under Section 164 CrPC on that day. Obviously, at
that point of time, she was free from any influence whatsoever. In
the said statement as well, she did not allege that she had been
kidnapped or had been subjected to rape. Nevertheless, even if
for a moment the highly belated story set up by the girl in her
statement under Section 202 CrPC is accepted, then also this
court feels that putting the accused petitioners for trial for such
concocted and farteched allegations is totally unjustified. The girl
was married from before and was nearly 18 years of age on the
date of her disappearance from her husband’s home. She was
allegedly taken from Bali to Mumbai in a train and was then
allegedly forced to stay at various thickly populated places in
Maharashtra, Karnataka etc. During this period of almost two
months, despite having ample opportunities, the girl never uttered
a single word of protest at any point of time. It is beyond
(8 of 9)
[CRLR-581/2016]
comprehension that if the girl had actually been kidnapped by the
accused then why she failed to raise protest during this prolonged
period of almost two months. It is not the prosecution case that
during this entire period, the prosecutrix was kept confined in
such a manner that she never got a chance to speak out against
the accused or to raise her voice in protest. As per the belated
statement of Mst S recorded on 06.07.2011 under Section 202
CrPC, she admittedly travelled to various places at Maharashtra,
Karnataka, Gujarat with the accused using public transport
systems and thus, manifestly, she would have come across
numerous opportunities to expose the accused, if at all she had
been kidnapped. Thus, this court is of the firm opinion that the
exaggerated story as set up in the highly belated statement of the
prosecutrix recorded under Section 202 CrPC after nearly a year
and two months of the alleged occurrence is apparently false and
fabricated. A plain and simple case of a woman treated badly in
her matrimonial home eloping with her lover, has been given a
twist of kidnapping and rape under the pressure of her relatives.
From the circumstances emerging from the record, this court is
duly satisfied that the girl was a consenting party in the entire
sequence of events and rather she was might even have been the
lead player. Thus, the impugned order, whereby charges were
framed against the petitioner No.1 Chunni Lal @ Chunna Lal for
the offences under Sections 363 and 366 IPC and against the
petitioner No.2 Roopa Ram for the offences under Sections 366,
376 and 344 IPC has no foundation in facts as well as in law and
cannot be sustained.
(9 of 9)
[CRLR-581/2016]
In view of the discussion made hereinabove, the
revision deserves to be and is hereby allowed. The impugned
order dated 29.04.2016, whereby the charges were framed
against the accused petitioners in the above terms and all
subsequent proceedings sought to be taken thereunder are hereby
quashed in their entirety.
(SANDEEP MEHTA),J.
Pramod