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Aehsan Mohd @ Amir Khan vs State on 4 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 60 / 2018
Aehsan Mohd. @ Amir Khan S/o Sh. Ramjan Ali @ Babu Gujar,
Resident of Gujaron Ka Mohalla, Inside Bidasar Bari, Bikaner (Raj.)

—-Petitioner
Versus

1. State of Rajasthan through Public Prosecutor.

2. Jethi Devi w/o Heeralal, by caste Kumhar, r/o Udairamsar,
Gujaron ka Mohalla, Bikaner.

—-Respondents
__
For Petitioner(s) : Mr. Vineet Jain
For Respondent(s) : Mr. L.R. Upadhyay, Public Prosecutor.
For Complainant(s): Mr. Virendra Acharya.

__
HON’BLE MR. JUSTICE P.K. LOHRA
Order
04/04/2018

Accused-petitioner has preferred this revision petition under

Section 397 read with Section 401 Cr.P.C. to challenge order dated

21st of November 2017, passed by Addl. Sessions Judge (Women

Atrocities Cases), Bikaner (for short, ‘learned trial Court’), framing

charges against him for offences punishable under Sections 457,

376/511, 354 and 354-A IPC.

Briefly stated, the facts of the case are that second

respondent complainant submitted a written report before SHO,

Police Station Gangashahar, Bikaner on 28th of May 2016 that on

last Friday during night, when she was sleeping at home with her

four children, one incumbent made lurking house trespass and
tried to molest her besides out-raising her modesty. In the

report, complainant has not named the accused but made specific

allegation that he is son of Babu Gurjar. Attributing criminal

antecedents to both Babu Gurjar and his son, the complainant has

specifically mentioned in the report that her husband is a driver

and usually remain out of Bikaner in discharge of his duties. The

complainant has also expressed apprehension that there is

imminent threat to her from Babu Gurjar and his son, both of

whom are known to her but for name of the accused/petitioner.

On the basis of report, on the same day FIR, is registered for

offence under Sections 457, 376/511 and 354 IPC and

investigation commenced. After investigation, police submitted

charge-sheet in the matter. During investigation, statements of

complainant prosecutrix were recorded under Section 161 Cr.P.C.

and further her statements under Section 164 Cr.P.C. were also

recorded by the Magistrate. Apart from the statements of

prosecutrix, statements of her husband Heeralal, her daughter

Kumari Chanda were also recorded and police also prepared site-

plan. The learned trial Court, then, proceeded to take cognizance

against the petitioner for aforesaid offences. Later on, arguments

were heard for the purpose of framing charge and by the

impugned order charges are framed against the petitioner for

offence under Section 457, 376/511, 354 354A IPC.

Mr. Vineet Jain, learned counsel for the petitioner, submits

that the learned trial Court has not at all cared to examine prima

facie case against the petitioner for framing charges. It is argued
by learned counsel that as per site-plan, the place, where the

alleged offences are committed by the petitioner, is outside the

dwelling house of complainant, and therefore, prima facie, offence

under Section 457 IPC is not made out. Learned counsel would

contend that essential ingredients for constituting offence under

Section 457 IPC, namely, lurking house trespass by night, or

house breaking by night, is conspicuously missing in the matter,

but the learned trial Court has completely overlooked the site plan

and other material while framing charge for the said offence. Mr.

Jain, learned counsel, has also argued that other offence under

Section 376/511 IPC, for which charge is framed against the

petitioner, is also not based on prima facie satisfaction of the

learned trial Court. It is contended by learned counsel that

complainant prosecutrix has projected different versions about

alleged incident in the FIR, her statements under Section 161

Cr.P.C. and statements recorded under Section 164 Cr.P.C.

Learned counsel has also argued that even if inconsistencies in all

the three versions of the complainant are overlooked, sans

attribution of any overtact or specific allegation to commit sexual

intercourse with her by the petitioner, prima facie, offence under

Section 376/511 IPC is also not made out. Mr. Jain has also

argued that a cumulative reading of all the three versions of the

prosecutrix are prima facie not satisfying the requirements

envisaged under Section 228 Cr.P.C. for framing aforesaid charge

against the petitioner. In support of his arguments, learned

counsel has placed reliance on a decision of Supreme Court in

State of Rajasthan Vs. Sri Chand [(2015) 11 SCC 229].

Per contra, learned Public Prosecutor submits that the

learned trial Court, upon examining the material available on

record, has rightly exercised its discretion for framing charges

against the petitioner. Learned Public Prosecutor would contend

that at the stage of framing charge, Court is required to see prima

facie case, and sufficiency of evidence resulting into conviction is

not to be seen at that stage.

Mr. Acharya, learned counsel for the complainant, while

reiterating the arguments of learned Public Prosecutor submits

that police statements and statements of prosecutrix recorded

under Section 164 Cr.P.C. are clear and unequivocal, and

therefore, learned trial Court has rightly framed charges against

the petitioner. Learned counsel for the complainant submits that

daughter of the complainant Kumari Chanda has also corroborated

version of her mother, is prima facie, constituting sufficient

material showing possibilities about commission of crime by the

petitioner to frame the charge. Learned counsel for the

complainant has also urged that at the stage of framing charge

possibility of commission of crime is required to be seen by the

Court as against its certainty.

I have bestowed my consideration to the arguments

advanced at Bar and perused the materials available on record.

Upon a cumulative reading of Sections 227 228

Cr.P.C. in juxtaposition, it clearly emerges out that at the threshold

of trial, Court is not required to meticulously judge the truth,

veracity and effect of evidence, which the prosecution proposes to

adduce. To put it more clearly, at the time of framing of charges,

the probative value of the material on record cannot be gone into

and the material brought on record by the prosecution has to be

accepted as true at this stage. It is also noteworthy that in the

event of possibility of two views giving rise to suspicion only, as

distinguished from grave suspicion, the trial Court may resort to

Section 227 Cr.P.C. for discharging the accused. My aforesaid

view is fortified by a decision of Supreme Court in P. Vijayan Vs.

State of Kerala Anr. [(2010) 2 SCC 398], wherein the Court

held:

“10. Before considering the merits of the claim of
both the parties, it is useful to refer to Section 227 of
the Code of Criminal Procedure, 1973, which reads as
under:

“227. Discharge.–If, upon consideration of the
record of the case and the documents submitted
therewith, and after hearing the submissions of
the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient
ground for proceeding against the accused, he
shall discharge the accused and record his
reasons for so doing.”

If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion,
the trial Judge will be empowered to discharge the
accused and at this stage he is not to see whether the
trial will end in conviction or acquittal. Further, the
words “not sufficient ground for proceeding against the
accused” clearly show that the Judge is not a mere post
office to frame the charge at the behest of the
prosecution, but has to exercise his judicial mind to the
facts of the case in order to determine whether a case
for trial has been made out by the prosecution. In
assessing this fact, it is not necessary for the court to
enter into the pros and cons of the matter or into a
weighing and balancing of evidence and probabilities
which is really the function of the court, after the trial
starts.

11. At the stage of Section 227, the Judge has
merely to sift the evidence in order to find out whether
or not there is sufficient ground for proceeding against
the accused. In other words, the sufficiency of ground
would take within its fold the nature of the evidence
recorded by the police or the documents produced
before the court which ex facie disclose that there are
suspicious circumstances against the accused so as to
frame a charge against him.

12. The scope of Section 227 of the Code was
considered by this Court in State of Bihar v. Ramesh
Singh, wherein this Court observed as follows: (SCC
pp. 41-42, para 4)
“4. … Strong suspicion against the accused, if
the matter remains in the region of suspicion,
cannot take the place of proof of his guilt at the
conclusion of the trial. But at the initial stage if
there is a strong suspicion which leads the court
to think that there is ground for presuming that
the accused has committed an offence then it is
not open to the court to say that there is no
sufficient ground for proceeding against the
accused. The presumption of the guilt of the
accused which is to be drawn at the initial stage
is not in the sense of the law governing the trial
of criminal cases in France where the accused is
presumed to be guilty unless the contrary is
proved. But it is only for the purpose of deciding
prima facie whether the court should proceed
with the trial or not. If the evidence which the
prosecutor proposes to adduce to prove the
guilt of the accused even if fully accepted before
it is challenged in cross-examination or rebutted
by the defence evidence, if any, cannot show
that the accused committed the offence, then
there will be no sufficient ground for proceeding
with the trial.”

This Court has thus held that whereas strong
suspicion may not take the place of the proof at the
trial stage, yet it may be sufficient for the satisfaction
of the trial Judge in order to frame a charge against the
accused.”

Supreme Court, in its earlier judgment in case of Soma

Chakravarty Vs. State through CBI [(2007) 5 SCC 403] reiterated
the settled position for exercising power under Section 228 Cr.P.C.

for framing charges. The Court held :

“Before framing a charge the court must apply
its judicial mind on the material placed on record and
must be satisfied that the commitment of offence by
the accused was possible. Whether, in fact, the
accused committed the offence, can only be decided
in the trial.”

In the present case, from a bare perusal of the impugned

order, it is apparently clear that the learned trial Court has not at

all cared to examine the material available on record including the

site-plan and variance in allegations of FIR, police statements of

the prosecutrix and her statements recorded under Section 164

Cr.P.C. while framing charge for offences under Section 457 and

376/511 IPC. I am at loss to say that there is no whisper in the

impugned order showing satisfaction of the learned trial Court

about strong suspicion against the accused petitioner for

commission of these offences. Moreover, vis-a-vis these offences,

learned trial Court has not made any endeavour for considering

the record in the light of Section 227 Cr.P.C. with intent to merely

shift the evidence so as to find out whether or not there is

sufficient ground for proceeding against the accused-petitioner.

As observed hereinabove, the requisite ingredients for

constituting offence under Section 457 IPC are not prima facie

discussed by the learned trial Court. The satisfaction for other

offence, i.e., attempt to rape, is also prima facie not forthcoming

from the impugned order founded on scrutiny of material available

on record. There is no whisper much less prima facie satisfaction
of the learned trial Court that the accused-petitioner advanced in

his actions which would have resulted into ravishing the

prosecutrix had some extraneous factors not intervened, apart

from his determination to have sexual connection with the

prosecutrix at all events inspite of all resistance.

Therefore, in totality, I am unable to record my satisfaction

about correctness, legality or propriety of the impugned order and

consequently the same cannot be sustained.

The upshot of above discussion is that instant revision

petition is allowed, the impugned order passed by learned trial

Court is set aside to the extent charges are framed against

petitioner for offence under Section 457 and 376/511 IPC and the

matter is remitted back to learned trial Court for considering the

same de novo in respect of the charge framed against the

petitioner for offence under Section 457, 376/511 IPC strictly in

accordance with law.

(P.K. LOHRA)J.

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