Ajay Singh & Another vs State of M.P. & Another

M.K. Mudgal, J.—With the consent of both the parties, matter is being heard finally at the motion stage.

The applicants/accused have filed this criminal revision under Section 397 read with Section 401 of Cr.P.C. being aggrieved by the order dated 28.09.2015 passed by the court of Additional Sessions Judge, Ambah, District Morena in Sessions Trial No. 263/2015 framing the charges under Section 294, 323, 332, 506 Part-2 and 376 (2) (g) of IPC.

Learned counsel for the applicants/accused submits that by this revision, the applicants/accused challenge only the charge framed against them under Section 376 (2) (g) of IPC. The propriety and legality of the remaining charges are not being challenged in this revision.

Counsel further submits that as per the contents of the FIR (Annexure P/2) which was lodged by the complainant Smt. Saroj Gurjwal on 29.12.2014, there is no allegation against the applicants/accused about their committing rape with her because of that the FIR was registered under Section 353, 332, 294, 506-B read with Section 34 of IPC. During investigation her statement was recorded on 30.12.2014 (Annexure P/4) under Section 161 of Cr.P.C. In the said statement, the prosecutrix has made allegations as follows:-

"vkt ls 3 o"kZ iwoZ tc eSa vius ek;ds xbZ Fkh rc vius nwj ds fj''rs esa yxus okys thtk vt; o lat; iq=x.k rst flag fuoklh dleM+k ds lEidZ esa vkbZA blls iwoZ Hkh eSa bu nksuksa HkkbZ;ksa dks tkurh Fkh dqN fnu ckn tc eSa vius ek;ds esa Fkh vdsyh Fkh rks vt; ?kj esa vk;k vkSj esjs lkFk tcjnLrh dj cqjk fd;k eSa ''keZ o cnukeh ds dkj.k ugh fpYykbZ o vius ek;ds okyksa dks ;s ckr ugh crykbZA fnukad 06-01-2015 dks tc eSa cktkj tk jgh Fkh rc vt; o lat; nksuksa HkkbZ;ksa us eq>s jksd dj cksyk fd py gekjs lkFk dksVZ eqjSuk ojuk rq>s cnuke dj nsaxs vkSj rsjs cPpksa dks ekj Mkysaxs rc eSaus cksyk fd fdlh dks ;s ckr er crkvks eSa pyrh gwWaA rqe yksx tkvksa eSa nwljh cl ls vkrh gwWaA fQj eSa nwljh cl ls eqjSuk igqaph ogkWa lat; o vt; us dV~Vk fn[kkdj eq>s tcjnLrh dksVZ ys x;s vkSj vt; ds HkkbZ lat; us tcjnLrh dksVZ esa fy[kkbZ i<+kbZ djok dj esjs lkFk ''kknh dj yhA tgkWa mlds ekek dk yM+dk jkelus fu0 Xokfy;j o vt; dks xokg cukdj ''kknh dhA mlds ckn vt; o lat; eq>s Jhjke gksVy eqjSuk ys x;s tgkWa nksuksa us ckjh&ckjh esjs lkFk ''kkjhfjd laca/k cuk;sA mlds ckn dHkh Hkh vt; o lat; eq>s /kedk dj eqjSuk cqykrs Fks o esjs lkFk xyr dke djrs FksA vt; tks fd tkSjk esa lc&bUlisDVj ds in ij gS tc Hkh NqfV~V;ksa es vkrk Fkk eq>s cqykdj esjs lkFk xyr dke djrk FkkA vkt ls Ms<+ o"kZ iwoZ eq>s lat; ls lok eghus dk xHkZ gks x;k FkkA ftls eSa ijs''kku gksdj ^vckW''kZu* djkus Mk0 vuhrk eSMe ds ;gkWa pyh xbZ tgkWa fcuk lat; ds vckW''kZu gksuk eqf''dy Fkk rc lat; dks cqykdj vckW''kZu djk;kA djhc 3 o"kZ ls yxkrkj vt; o lat; nksuksa HkkbZ esjk yxkrkj ''kkjhfjd ''kks"k.k dj jgs gSaA dy fnukad 29-12-2014 dks tc vt; o lat; nksuksa us eq>s feyus cqyk;k rks eSaus euk dj fn;k rks vt; o lat; nksuksa Nk=kokl vk;s vkSj esjs cPps ds lkFk ekjihV dj Nk=kokl esa ?kql dj esjs lkFk NsM+NkM+ o v''yhy gjdrsa vkSj xkyh&xykSp dh vkSj Hkkx x;s rc eSa lkl o cPpksa ds lkFk fjiksVZ dks Fkkus vkbZA eSa cnukeh ds dkj.k vt; o lat; dh gjdrksa ds ckjs esa u llqjky okyksa vkSj ek;ds okyksa dks ugha crk ikbZA"

The age of the prosecutrix was 32 years when the alleged incident took place with her. She was having two children. The statement of the prosecutrix reveals that she voluntarily used to reside with the applicants/accused and had sex with applicant No.2 Sanjay Singh for near about three years. During this period, she did not make any complaint to anyone about the rape. On the basis of said statement it can be safely presumed that if any intercourse had been committed by the applicant No.2 Sanjay Singh, the prosecutrix was consenting party in this matter. On the basis of the said statement, no offence under Section 376 is made out against the applicants/accused. Learned trial court has committed an error in framing the charge under Section 376 (2) (g) of IPC, therefore the applicants/accused be discharged from the said offence.

Learned Public Prosecutor and the counsel for the respondent No.2 opposing the submissions have prayed for rejection of the revision stating that the allegations made against the applicants/accused reveal that the offence under Section 376 (2) (g) of IPC is made out against the applicants/accused, therefore, the charge framed by the learned trial court is just and proper and the revision be dismissed.

Heard the argument of both the parties and perused the case diary evidence.

It is true that under Section 227 of IPC charge should be framed on the basis of the charge sheet evidence and at that stage defence story cannot be considered. In the instant case, it transpires that there was no allegation against the applicants/accused about their committing rape with the prosecutrix in the FIR dated 29.12.2014 (Annexure P/2) lodged by herself. On perusal of the contents of the said FIR, it appears that a dispute arose between both the parties and the prosecutrix was assaulted by the applicants/accused. The story for committing rape with the prosecutrix was introduced by the prosecutrix on 30.12.2014 (Annexure P/2). The statement of prosecutrix (Annexure P/4) reveals that she was consenting party in this matter because her previous husband died on 20.07.2010 thereafter she decided to live with the applicants/accused and she had been in the company of the applicant No.2 Sanjay Singh for near about three years. During this period she used to have sex with him continuously. Resultantly, she became pregnant and her abortion was carried out with the consent of applicant No.2. Considering the totality of the statement of the prosecutrix, there is no hesitation to say that it was not a case of rape but it has been falsely converted into it malafidely on 30.12.2014 because there was no allegation made by her against the applicants/accused in the FIR dated 29.12.2014 itself. The learned trial Court has not considered the statement of prosecutrix in a prospective manner.

On the basis of the aforesaid consideration, it is concluded that there is no sufficient evidence against the applicants/accused for framing charge under Section 376 (2) (g) of IPC. Therefore, the charge framed by the learned trial court for the offence under Section 376 (2) (g) is hereby set aside. Learned trial court is directed to proceed the trial for remaining offences.

With the aforesaid conclusion, this revision stands disposed of.