Jareena Khan vs Shailendra Pagare & ors.

The applicants are before this Court for seeking discharge from charges framed against them under several provisions of Indian Penal Code and provision of Protection of Children form Sexual Offences Act, 2012 (in short "POCSO Act") framed by the Vth Additional Sessions Judge, Bhind vide order dated 19.12.2016 in Sessions Trial no. 250/2016.

The prosecution case initiates the present applicants No. 1 and 2 of offence punishable under Section 366 of IPC and the applicant No. 3 of offence punishable under Section 363, 366, 366(A), 376(1) of IPC and Section 3/4 of Protection of Children from Sexual Offences Act. The complainant who is the father of the prosecutrix reported the police on 14.09.2016 that his 16 years old daughter is missing and she has been seduced by some unidentified persons. The police registered the case and proceeded with the investigation. The prosecutrix was recovered on 16.09.2016 and police has recorded her statement under Section 161 of Cr.P.C. In this statement the prosecutrix stated that her neighbor Kishna who is Brahmin by caste and whom she knew from earlier points of time, tried to give her a mobile phone and insisted her to talk through it but

she denied to do so then he threatened her and forcefully handed over the mobile phone to her. On 11.09.2016, mother of applicant No. 3 Kishna gave her Rs. 500/- and asked her to go with Kishna and get marry. Thereafter, on 13.09.2016, she went with Kishna to the bus stand, Bhind, where after standing for some time, Kishna went away and told her that he would come back after some time. At this juncture, an another person came there and told that he has been sent by Kishna. He further told her to go with him because Kishna will come later on. The prosecutrix had gone with him and traveled by bus to the village Mehgaon where again another people had come and they have taken away her to village which comes under district Etava (UP), where they kept her for whole night. When she inquired about Kishna, they replied that he will come later. After that on 14.09.2016, these two persons took her to Gwalior and raped her. On 15.09.2016, they left the prosecutrix at Gwalior railway station where she went to police station GRP and expressed her desire to meet her family members then police informed the father of the prosecutrix. He brought her with him and produced before police station Dehat, Bhind. On 17.09.2016, the statement of the prosecutrix was recorded before the Judicial Magistrate First Class under Section 164 of Cr.P.C., in which she alleged that on last Saturday accused Kishna has also raped her on his residence at Bhind.

The police after completion of investigation filed chargesheet and the trial was commenced by the trial Court in which vide impugned order the charges as narrated in the presiding paragraph have been framed against the present applicants.

Learned counsel for the applicants has challenged the impugned order primarily on the ground that allegations made in the statements are far from reality and the medical examination does not corroborate such statement given by the prosecutrix. Apart from it, the age of the prosecutrix is more than 18 years. Therefore, the charges leveled against the applicants for abduction and under POCSO Act are not maintainable. It has also been contended that the Court below did not consider the fact that the applicants have made application for conducting the Ossification test of the prosecutrix for determining her age but it was not done. Consequently, learned counsel seeks setting aside the order of framing charges against the present applicants.

Learned counsel for the respondent has relied upon the specific allegations leveled against the applicants and the fact that both the statements of the prosecutrix compliment each other without any contradictions. Thus, the prayer for dismissal of the revision application has been made.

This Court has given its anxious consideration to the rival contention and perused the record. The contention raised by the applicants tantamount to putting fourth their defence in the matter which cannot be examined without permitting the prosecution to present its case first by leading evidence and only thereafter, the defence version can be examined on touch stone of the prosecutrix evidence. The scope of inquiry at the stage of framing of charges is limited which has laid down by the Hon''ble Supreme Court in the case of Chitresh Kumar Chopra Vs. State (Govt. NCT of Delhi) reported in (2009)16 SCC 605 which is reproduced herein below:- "25. It is trite that at the stage of framing of charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the Court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the Court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."

In the context of observation made by Hon''ble Supreme Court if the facts of the case are examined, then the revision application cannot be entertain in the face of specific allegation made against the applicants No. 2 and 3. However, the case of applicant No. 1 is on different footing as on perusal of chargesheet including the statements of the prosecutrix that there is no direct allegation against him for warranting trial for commission of offence punishable under Section 366-A of IPC.

Taking this view of the matter and upon considering the circumstances, there is no material against applicant No. 1 is shown for his involvement in the incident, therefore, the present revision application stands allowed to the extent it relates to applicant No. 1 Purushottam Mishra. Consequently, he is discharged from the charge framed against him under Section 366-A of IPC. However, with respect to the remaining applicants i.e. applicant No. 2-Smt. Rama Devi and applicant No. 3 Kishna @ Krishnakant, this Court find sufficient material to put them for trial for the offences charged against them. Therefore, the revision application filed on behalf of applicants No. 2 and 3 is dismissed. However, it is made clear that the Court below will not be influenced by the observation made by this Court with respect to applicants No. 2 and 3 and will conduct the trial in accordance with law by exercising its own wisdom.