Chunni Lal, Chuna Lal @APPELLANT@Hash State of Rajasthan

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.

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 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 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.Â

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 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 against her desire. He, thus, implored the court to accept the revision and quash the impugned order

framing charges.Â

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.Â

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 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 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.

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.