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Choru Lal & Ors vs State & Anr on 5 April, 2018

S.B. Criminal Revision No. 836 / 2015

1. Choru Lal S/o Shri Kishna Ram,

2. Smt. Kamla Devi W/o Shri Choru Lal,

3. Shashi W/o Shri Navratan,

4. Leeladhar S/o Shri Manak Lal,

All by caste Suthar, R/o- In Side Pabu Bari, Naya Shahar,


1. The State of Rajasthan.

2. Khetpal S/o Shri Bulaki Ram, by caste Suthar, R/o- In Side
Pabu Bari, Naya Sahar, Bikaner.

For Petitioner(s) : Mr. P.K. Mathur.

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

Mr. M.S. Purohit,
Date of Judgment: 05/04/2018

By way of this revision, the accused petitioners have

approached this Court for challenging the order dated 27.07.2015

passed by the learned Additional Sessions Judge (Women

Atrocities Cases), Bikaner whereby, the learned Trial Judge

accepted the application filed by the prosecution and directed

summoning of the petitioners as additional accused in the case

alongwith the charge-sheeted accused Navratan.

Facts in brief are that the complainant Khetpal lodged a

written report at the Police Station Naya Shahar, Bikaner on
(2 of 11)

23.11.2013 alleging inter alia that his daughter Sushri ‘S’ was

married to Gajendra Suthar on 18.11.2013. The accused reside in

the complainant’s neighbourhood. Navratan was keeping an evil

eye on Sushri ‘S’ since long. She had come to the maternal home

on 21.11.2013 but was not seen in the house on the next

morning. The complainant thereupon, started a search for his

daughter. When inquiry was made from the accused persons,

Choru Lal told the complainant that his son had succeeded in

achieving his goal and that he could not do anything about it. As

per the complainant, Navratan, in conspiracy with his father,

mother and wife abducted his daughter alongwith her gold silver

ornaments as well as cash. On the basis of this report, an FIR

No.425/2013 was registered at the Police Station Naya Shahar,

Bikaner for the offences under Sections 363 and 366 IPC and

investigation commenced. After investigation, the I.O. concluded

that the offences under Sections 363, 366 and 376 IPC were made

out against the accused Navratan and filed a charge-sheet only

against him in the court concerned. The case was committed to

the court of Sessions Judge, Bikaner from where, the same was

transferred to the court of the learned Additional Sessions Judge

(Women Atrocities Cases), Bikaner for trial. Charges were framed

against the accused Navratan for the offences under Sections 366

and 376 IPC who pleaded not guilty and claimed trial. At that

stage, the complainant submitted an application under Section

190 Cr.P.C. in the trial court with a prayer to summon the accused

petitioners as additional accused in the case. The said application

was allowed by the learned Trial Judge vide impugned order dated
(3 of 11)

27.07.2015 which is assailed in the instant revision.

Shri P.K. Mathur, learned counsel representing the petitioners

urged that the entire prosecution case is false and fabricated. The

prosecutrix Sushri ‘S’ is a major married woman. She was having

a long standing love affair with Navratan and eloped with him just

three days after her forced marriage with Gajendra Suthar. She

was traced out on 28.11.2013. When the I.O. noted her apparel

and general condition, she was wearing all her ornaments. Her

statement was recorded by the I.O. on 28.11.2013 and in such

statement, she categorically stated that she was having a

prevailing friendship with Navratan for the last 6-7 years. Neither

did Navratan abduct her nor was she subjected to any immoral act

by Navratan. Thereafter, she was allowed to go with her father.

Before being traced out by the I.O., the lady suo motu appeared

before the CJM, Sikar and submitted an application dated

27.11.2013 mentioning therein that she had gone with Navratan

of her own free will without any threat duress or coercion and that

the FIR No.435/2013 lodged by her family members was based on

false aspersions. The lady was later on examined under Section

164 Cr.P.C. in connection with the present case on 07.12.2013 and

in such statement, she changed her version and alleged that on

the night of 21.11.2013, while she had returned from her

matrimonial home to her father’s house, Navratan called on her

mobile at 03.30 am. and coerced her to come out of the house

without telling anybody. He threatened that in case she hesitated,

he would kill her family members. She knew Navratan from before

because he used to live in the neighbourhood. She alleged that
(4 of 11)

Navratan caught hold of her hair and forcibly boarded her into a

car in which, Leeladhar was present from before. Leeladhar

gagged her mouth and threatened that she would be killed if she

shouted. She was taken to Jaipur. The car was parked at the

parking lot of the Jaipur Airport and then, she was taken to

Mumbai by flight. From Mumbai, they boarded a bus and went to

Pune. At Pune, she was kept in a hotel for two days where, the

accused Navratan established forcible sexual relations with her.

During this period, Choru Lal, Kamla and Shashi used to call

Navratan and the lady allegedly overheard them telling Navratan

that he should not bother and should freely continue his sexual

romp with Sushri’S’. Choru Lal had allegedly given a sum of

Rs.20,000/- to Navratan with an insinuation that Sushri ‘S’ would

not be allowed to live respectably either in her matrimonial home

or at her father’s house. Navratan did not allow her to talk with

anybody. She was kept tied up. They left Pune on 24.11.2013 and

came to Jaipur via Mumbai and Ahmedabad. He picked up his car

from Jaipur and took her to Sikar. There, he engaged a lawyer.

Choru Lal called Navratan and told him that he should somehow

get a favourable statement of the girl recorded and if she

hesitates then she should be killed. However, the lawyer at Sikar

advised that her statement could be recorded only at the Bikaner

court. They came down to Dungargarh from Sikar. Navratan’s

parents and Shashi called Navratan and told that the situation was

not favourable and thus, they should stay back and the girl should

be coerced into giving a favourable statement and then she may

be ditched. Thereafter, she was dropped off at the Museum Circle,
(5 of 11)

Bikaner. Leeladhar came around and administered some

intoxicating drug to her. Then she was pressurised and taken to

the police station. She was threatened that Leeladhar’s father was

in police and that she should give a favourable statement or else

she would be killed. She further alleged that her maternal

relatives were still being threatened that if they did not change

their statements, then they would be killed. She further alleged

that Navratan took away her ornaments and sold them. The I.O.,

however, did not find the entire theory put up by the girl in her

statement recorded under Section 164 Cr.P.C. substantiated and

accordingly, the offence under Section 376 IPC is applied against

Navratan. The tower location of Leeladhar for the questioned

period showed his presence at Bikaner from 22.11.2013 to

28.11.2013 and accordingly, the I.O. did not find him involved in

the case. None of the petitioners were found involved in the entire

sequence of the alleged offensive activities and thus, a charge-

sheet was filed only against Navratan. As stated above, the trial

court exercised powers under Section 190 Cr.P.C. and took

cognizance against the petitioners, and summoned them to face

trial by the order dated 27.07.2015 which is challenged in the

instant revision.

Shri P.K. Mathur, learned counsel representing the petitioners

vehemently urged that ex-facie, the story set out in the statement

of the prosecutrix recorded under Section 164 Cr.P.C. is totally

false, fabricated and cooked up. He urged that on the face of the

record, it is apparent that the prosecutrix was having a long

standing love affair with the accused Navratan from well before
(6 of 11)

her marriage. She was married to Gajendra Suthar against her

wishes. She returned from her matrimonial home just three days

after her marriage and clandestinely eloped with her lover

Navratan. He contended that the story put-forth by the

prosecutrix in the statement recorded under Section 164 Cr.P.C.

that Navratan called her in the night of 21.11.2013 and forced her

to come out of the house under the threat of killing her family

members is palpably false and fabricated. Had there been an iota

of truth in the said theory, the girl could have immediately raised

an alarm and got Navratan apprehended then and there. As per

him, the fact that the prosecutrix left her father’s house at 03.30

am. while taking away her ornaments, cash, etc. clearly

establishes that the case is one of voluntary elopement of a

mature married woman with her paramour Navratan and that the

story of abduction under threat and duress, etc. is totally fictional.

He further contended that the I.O., conducted thorough

investigation and found that the allegation of Leeladhar having

accompanied the prosecutrix and Navratan to Mumbai is false

because the foolproof evidence in form of tower detail location of

Lelladhar’s mobile phone established his presence at Bikaner right

from 22.11.2013 to 28.11.2013. He further urged that the

prosecutrix was a free agent at the time when she appeared at the

police station i.e. on 28.11.2013. The accused admittedly did not

accompany her. Had any kind of threat or duress been exercised

on the prosecutrix by the accused persons, then she could have

spoken out about the same when she appeared at the police

station and gave her first statement on 28.11.2013. He further
(7 of 11)

urged that the prosecutrix accompanied the accused Navratan

from Jaipur to Mumbai in a flight. Large number of security

personnel are deployed at the airport and if at all, the lady was

being abducted against her wishes, she could have easily raised

an alarm at the airport. However, she kept silent and voluntarily

accompanied Navratan to Mumbai and Pune where they stayed

together in a hotel and indulged in extramarital carnal relations.

He thus urged that ex-facie, the entire case of the prosecution

regarding Navratan having abducted the prosecutrix under the

threat of killing her maternal family members and the petitioners

having conspired and facilitated such acts of Navratan is nothing

but a figment of imagination and hence, the order impugned

should be quashed and set aside.

Per contra, learned Public Prosecutor and Shri M.S. Purohit,

learned counsel representing the complainant vehemently

opposed the submissions advanced by the petitioners’ counsel.

They urged that the prosecutrix was an inexperienced girl and had

been married just three days before the incident. That there was

no occasion for the girl to have voluntarily accompanied Navratan

on 23.11.2013 because she was happily married with Gajendra

Suthar. It was further contended that the accused petitioners also

conspired in the entire sequence of event and thus, the trial court

was perfectly justified in summoning them to face trial as

additional accused while exercising powers under Section 190


I have given my thoughtful consideration to the arguments

advanced at Bar and have gone through the impugned orders as
(8 of 11)

well as the material on record.

Firstly, I proceeded to examine the legality and validity of

the impugned order. Manifestly, by the time, the impugned order

came to be passed, the trial court had already framed charge

against the accused Navratan. Thus, the stage of Section 190

Cr.P.C. had already been crossed when, the trial court proceeded

to accept the application submitted by the prosecution to summon

the petitioners as additional accused. In this background, ex-facie

the impugned order is bad in the eye of law as the stage of

summoning additional accused under Section 190 Cr.P.C. had been

crossed and after that, the only power available to the trial court

for summoning additional accused would become available at the

stage of Section 319 Cr.P.C. i.e. after recording of evidence at the

trial. Furthermore, the Special Judge had received the case after

commitment and as such, it could not exercise powers under

Section 190 Cr.P.C. which are only available to the court before

whom the charge-sheet is presented. The committal court can

summon accused by resorting to the powers under Section 193

Cr.P.C. as per the Supreme Court decision in the case of Dharam

Pal Singh vs. State of Haryana, reported in (2014)3 SCC 306

or under Section 319 Cr.P.C. after recording evidence. Once the

trial court frames charges against the accused received by it on

committal, the threshold of Section 193 Cr.P.C. no longer exist and

law does not permit addition of additional accused thereafter

without recording evidence.

In view of these facts, manifestly the impugned order is in

bad in the eye of law and cannot be sustained.

(9 of 11)

Now, coming to merits of the case.

As discussed above and admittedly, the prosecutrix was a

mature married woman aged 27 years when the incident occurred.

She had been married with Gajendra Suthar on 18.11.2013 and

returned to her matrimonial home on 22.11.2013. She allegedly

received a threatening call from the accused Navratan in the early

hours of 23.11.2013 and allegedly feeling pressurised thereby and

without raising a murmur of protest, she left her father’s house

and went with Navratan. They travelled together to Jaipur,

Mumbai, Pune, Ahmedabad, Sikar, etc. In her statement recorded

by the police on 28.11.2013, Smt. ‘S’ categorically stated that she

was having intimate relations with Navratan for the last 6-7 years

and that both often met each other. She voluntarily accompanied

Navratan and both visited various places viz. Jaipur, Hyderabad,

etc. and returned back. She clearly stated that she was not

abducted by Navratan nor did he establish any immoral carnal

relations with her. Her statement was recorded under Section 164

Cr.P.C. as late as on 13.12.2013 and in such statement, she tried

to implicate the petitioners as well, in addition to Navratan.

However, apparently, the tenor of the said statement wherein, the

prosecutrix implicated the petitioners as virtual conspirators with

Navratan is absolutely fabricated, fictional and a bundle of lies.

The prosecutrix tried to portray in the said statement that

Leeladhar had accompanied her and Navratan till Mumbai.

However, the said allegation stands totally falsified by the mobile

call details/ tower details of Leeladhar’s mobile sim collected by

the I.O. during investigation on the basis whereof, it was
(10 of 11)

concluded and rightly so that the accused Leeladhar was present

in Bikaner from 22.11.2013 till 28.11.2013. The prosecutrix tried

to implicate the other accused persons i.e. Choru Lal and Kamla

being the parents and Smt. Shashi being the wife of Navratan by

portraying them to be conspirators. Ex-facie, the story put-forth

by the prosecutrix in the statement recorded under Section 164

Cr.P.C. that these persons used to call Navratan on phone and

encouraged him to vilify the prosecutrix is nothing but an absolute

creation of imagination. It is absolutely contrary to natural human

conduct that the traditional parents of a married Hindu man would

encourage and even go to the extent of glorifying the immoral act

of their son who had eloped with another married woman. Further,

it cannot be believed even for a moment that, a wife would

instigate her own husband to elope with another woman and

would encourage him to indulge in an extramarital affair. Thus, the

entire fictional story set out by the prosecutrix in her statement

recorded under Section 164 Cr.P.C. that Leeladhar accompanied

and assisted Navratan in her abduction and that the other accused

persons provided financial and emotional support to Navratan and

used to encourage him on phone is absolutely unworthy of

credence. The trial court committed a gross error and misdirected

itself in accepting the totally fictional story set up by the

prosecutrix in the belated statement recorded under Section 164

Cr.P.C. while summoning petitioners as additional accused in the

case. The finding of the I.O. in the final report that the petitioners

were in no manner engaged or connected with the immoral

activities of Navratan and the prosecution is absolutely justified.

(11 of 11)

Even if the admitted circumstances as emerging from the

prosecution case are considered then apparently it is a clear case

of a mature woman married against her wishes, eloping with her

paramour who also is a married man as a consequence of their

long standing love affair.

In view of the discussion made herein above, this Court is of

the firm opinion that the impugned order cannot be sustained on

merits as well.

Accordingly, the instant revision deserves to be and is hereby

allowed. The impugned order dated 27.07.2015 passed by the

learned Additional Sessions Judge (Women Atrocities Cases),

Bikaner whereby the petitioners were summoned as additional

accused to face trial with the charge-sheeted accused Navratan for

the offences under Sections 366 and 376 read with Section 120B

IPC is hereby quashed and set aside.

The trial of the principal accused Navratan shall continue.


tikam daiya/

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