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Chunni Lal @ Chuna Lal vs State on 5 April, 2018

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

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