Bhagwati Devi vs State of Rajasthan and Others

Vijay Bishnoi, J.—This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 19.10.2011 passed by the Additional Sessions Judge, Deedwana, District Nagaur (hereinafter referred to as ''the revisional court''), whereby the Criminal Revision Petition No. 19/2011 filed by the petitioner has been dismissed. In the above mentioned revision petition, the petitioner has challenged the order dated 23.06.2011 passed by the Judicial Magistrate, First Class, Ladnoon, District Nagaur (hereinafter referred to as ''the trial court''), whereby the trial court accepted the FR No. 25/2009 dated 31.08.2009 (arising out of FIR No. 70/2009 dated 03.08.2009 of Police Station, Jaswantgarh, District Nagaur) filed by the police and rejected the protest petition filed by the petitioner.

Brief facts of the case are that on 27.07.2009, the petitioner filed a complaint before the trial court while alleging that on 16.07.2009, she asked her father-in-law to drop her at her parents'' house in Tehsil Suratgarh, District Sri Ganganagar. The father-in-law of the petitioner brought a pickup jeep and the petitioner along with her father-in-law and the driver of the pickup jeep started their journey to her parents'' house at Suratgarh. In between the way one person Govind Ram joined them and thereafter all the accused persons took her in agriculture fields of in village Ghirdoda Mitha and offer her some drink and after consuming the same, she become unconscious, then those accused persons committed rape upon her. It is further alleged that after committing rape, her father-in-law dropped her near her parents house where she stayed for quite some days and thereafter narrated the whole incident to her parents.

The trial court sent the complaint filed by the petitioner for investigation to the police under Section 156(3) Cr.P.C. and the police registered the FIR No. 70/2009 and started investigation. After thorough investigation, the police has filed a negative final report while concluding that the allegations levelled by the petitioner in the complaint are false. Being aggrieved with the same, the petitioner filed a protest petition before the trial court and got her statement recorded under Section 200 Cr.P.C. and also got statements of her father and mother recorded under Section 202 Cr.P.C. The trial court, after taking into consideration the material collected by the police as well as the evidence produced by the petitioner in support of the protest petition, accepted the final report submitted by the police and rejected the protest petition filed by the petitioner vide order dated 23.06.2011.

Being aggrieved with the order dated 23.06.2011, the petitioner preferred the revision petition before the revisional court, however, the same has been dismissed vide order dated 19.10.2011 and revisional court has confirmed the order passed by the trial court. Hence, this criminal misc. petition.

Assailing the validity of the orders passed by the courts below, learned counsel for the petitioner has argued that in support of the protest petition the petitioner has stated that her father-in-law - Birma Ram and the other co-accused persons committed rape upon her on 16.07.2009. It is submitted that version of the petitioner is also collaborated by the statement of her parents recorded before the trial court and in such circumstances the trial court grossly erred in accepting the final report and rejecting the protest petition filed by the petitioner. It is also contended that the revisional court has also altogether ignored the statements of the petitioner and the other witnesses recorded in support of the protest petition and illegally confirmed the order passed by the trial court.

Learned counsel for the petitioner has also argued that the trial court has accepted the final report solely on the ground that the allegation of rape has not been confirmed from the medical report, wherein it is mentioned that no injury marks are present on the body of the petitioner. It is contended by learned counsel for the petitioner that the incident took place on 16.07.2009 whereas the complaint was filed on 27.07.2009 and the medical examination of the petitioner was conducted thereafter and in such circumstances there is no question of presence of injury marks on the body of the petitioner. It is contended that the trial court has also erred in giving a finding that at the time of incident, accused - Birma Ram was 68 years of age, though as per the school certificate of accused - Birma Rma, at the time of incident, he was about 54 years of age. It is also contended that at the time of taking cognizance, the trial court is only required to see whether prima facie, evidence is available on record or not and it is not open for the trial court to critically examine the material available on record. It is contended that from the statement of petitioner itself, it is clear that prima facie case against accused persons is made out then the trial court should have taken cognizance against the accused persons.

On the strength of the above arguments, learned counsel for the petitioner has prayed that this criminal misc. petition may be allowed and the impugned orders passed by the courts below may be quashed and the trial court may be directed to take cognizance against the accused persons for the offence punishable under Section 376 IPC.

Per contra, learned Public Prosecutor as well as learned counsel for the respondent Nos. 2 and 3 have argued that during the course of investigation, the police has recorded the statement of real sister of the petitioner viz. Bharti, who is married to other son of accused - Birma Ram, and in her statement, the real sister of the petitioner has specifically stated that on 14.07.2009, the petitioner on her own went away from her in-laws house and then their father-in-law brought her back on the very same day, then the petitioner refused to stay at her in-laws house and repeatedly insisted that she wants to go to her parents'' house. It is also stated by her that on 18.07.2009, the father-in-law of the petitioner has accompanied the petitioner in a bus to her parents house and after dropping her there, he came back. It is contended that the trial court though has observed that the allegations of rape have not been proved by the medical report, but it has placed reliance mainly on the statement of real sister of the petitioner while accepting the final report. It is also contended that during the course of the investigation, the police has also recorded the statements of neighbours and other independent witnesses, who have clearly stated that the allegations levelled in the complaint filed by the petitioner against the accused - Birma Ram and other co-accused persons are false and she filed the complaint against the accused persons because she did not want to stay at her in-laws house. It is also contended that though this criminal misc. petition filed by the petitioner under Section 482 Cr.P.C., however, in fact it is a second revision petition which is clearly barred as per Section 397(3) Cr.P.C.

On the strength of the above arguments, learned Public Prosecutor as well as learned counsel for the respondent Nos. 2 and 3 have prayed that this criminal misc. petition be dismissed.

Heard learned counsel for the petitioner and perused the impugned orders as well as the material available on record.

The petitioner has filed a complaint against her father-in-law as well as the other accused persons on 27.07.2009 i.e. after a delay of about 7 days. It is also noticed that the police, during the course of investigation, has recorded statements of several independent witnesses, who has specifically stated that the petitioner did not want to stay at her in-laws house despite insistence by her in-laws. The real sister of the petitioner, who is married to the younger brother of the petitioner''s husband, has clearly stated that the petitioner did not want to stay at her in-laws house and when her father-in-law brought her back on 14.07.2009, she remained agitated for two days and not even this, she refused to have her meals. It is also stated by her that after husband of the petitioner went to Iraq, she was not willing to stay at her in-laws house and want to live with some other person. She also stated that on several occasions she went away from her in-laws house for one and two days and came back.

From the order of the trial court, it appears that though the trial court has observed that the allegations of rape is not confirmed from the medical report, but mainly the trial court place reliance on the statements recorded by the police during the course of the investigation of the independent witnesses and the real sister of the petitioner.

After perusing the material available on record, this Court is of the opinion that the action of the trial court of accepting final report, placing reliance for the material collected by the police, cannot be said to be illegal. The revisional court has also taken into consideration the facts and circumstances of the case and has rightly confirmed the order passed by the trial court.

So far as regarding the contents of the petitioner that the trial court has recorded incorrect finding, that accused - Birma Ram was 68 years at the time of incident because as per the school record he was 54 years at the time of incident, is concerned it is noticed that neither in the protest petition nor in the revision petition filed by the petitioner before the courts below, such a ground has been taken.

The learned Public Prosecutor as well as learned counsel for the respondent Nos. 2 and 3 are right in claiming that though the petitioner has filed this criminal misc. petition under Section 482 Cr.P.C., but in fact it is a second revision petition which is clearly barred as per Section 397(3) Cr.P.C.

Resultantly, in view of the above discussions, I do not find any merit in this criminal misc. petition, the same is hereby dismissed.