Aehsan Mohd, Amir Khan @APPELLANT@Hash State of Rajasthan

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 siteplan.Â

 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.â€"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.â€​

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.

At the stage of Section 227, the Judge hasmerely 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.

The scope of Section 227 of the Code wasconsidered 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.â€​

  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.â€​

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.â€​

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.