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
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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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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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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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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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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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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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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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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/