Rajesh Kumar Kuswaha vs State of M.P.

Brij Kishore Dube, J.—With the consent of the learned counsel for the parties, this petition is heard finally. This petition u/s 482 of Cr.P.C. has been preferred by the petitioner herein/accused for quashing the order dated 18.6.2013 passed by the Special Judge, Morena in Special Sessions Trial No. 1/2013 (State of M.P. Vs. Rajesh Kumar Kushwaha) so far as it relates to framing of charge u/s 4 of the Protection of Children from Sexual Offences Act, 2012 (in short "the Act") against him.

Short facts of the case are that on 16.5.2013 at about 2:00 PM the prosecutrix aged 16 years went to the field of one Ramjilal Kushwaha to attend natural call and attended the same, at that time, accused, Rajesh Kumar Kushwaha came there and caught hold of her and threw her on the field and forcibly committed rape upon her. When the prosecutrix raised an alarm, her brothers came there. On seeing them, the accused ran way from the spot. The prosecutrix reached her house and narrated the entire incident to her mother and other family members. The prosecutrix went to the Police Station Matabasaiya, Morena along with her parents on 18.5.2013 and lodged a report. The police got examined the prosecutrix by doctor and started investigation. After due investigation, a charge-sheet was filed for the offence punishable under Sections 376 of IPC and 3/4 of the Act against, the accused Rajesh Kumar Kushwaha before the Court.

The learned Trial Judge on the basis of material placed on record framed charge punishable under Sections 376 of IPC and 4 of the Act against the accused vide order dated 18.6.2013. He abjured the guilt.

Shri V.D. Sharma, learned counsel appearing on behalf of the petitioner submits that the prosecutrix was sent to for radiological examination and radiologist''s report shows that she was 18 to 19 years of age. According to the definition clause of the Act ''Child'' means any person below the age of 18 years. On the basis of ossification test, the prosecutrix was above 18 years of age, therefore, charge u/s 4 of the Act is not made out against the petitioner. Learned counsel prays that petitioner may be discharged from the charge u/s 4 of the Act. Learned counsel has placed reliance on the following decisions:

(I) Dayachand Vs. Sahib Singh and another, and

(II) Om Prakash Vs. State of Rajasthan and Another,

Learned Panel Lawyer has argued in support of the impugned order and submitted that the charge framed by the Trial Court is in consonance with the papers of the charge-sheet. He prayed for dismissal of the petition.

I have considered the rival contentions of the learned counsel for the parties and perused the record.

According to the provisions of Sections 227 and 228 of Cr.P.C., it is for the Trial Court to consider the material available on record with the object that if it is not rebutted, then whether the accused can be convicted for a particular offence or not. By considering such material, if the accused is convicted for that offence, then charge for that offence shall be framed.

In Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, a three Judge Bench of the Supreme Court held as under:

18 It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar Vs. Ramesh Singh, , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion found upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.

(Emphasis supplied)

The Apex Court in the case of Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, held as under:

It seems well settled that as the Ss. 227-228 stage i.e., stage of framing the 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. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

In the case of Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao, , the Apex Court considered its earlier decisions about the scope of Sections 227 and 228 of Cr.P.C., and held that for framing of charge, a roving enquiry in pros and cons of matter and weighing of evidence as is done in trial is not permissible at this stage. The charge has to be framed if Court feels that there is strong suspicion that accused has committed offence. Thus, even 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, a charge can be framed.

On bare perusal of the FIR, statements of the prosecutrix, Dhara Singh, Amar Singh, Suraj Kushwaha and Smt. Guddi Bai recorded u/s 161 of Cr.P.C. and also other material available on charge-sheet, it is apparent that the present petitioner is involved in the commission of the offence.

As regard to the age of the prosecutrix, the prosecutrix in her statement recorded during investigation stated that her age is of 16 years. The same fact is mentioned in the FIR. Dr. Smt. Shailini Mishra has examined the prosecutrix on 18.5.2013 and in her M.L.C. report, the age of prosecutrix is mentioned as 16 years. M.L.C. Dr. Smt. Shailini Mishra has referred her for radiological and dental examination for determination of her age. The radiologist on the basis of ossification test opined that the prosecutrix is 18 to 19 years of age.

In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi), the Apex Court held that the medical report and the deposition of the radiologist cannot predict exact date of birth, rather it gives an idea with a long margin of 1 to 2 years on either side.

In Om Prakash (supra), the Apex Court held that while considering the relevance and value of the medical evidence, the doctor''s estimation of age although is not a sturdy substance for proof as it is only an opinion, such opinion based on scientific medical tests like ossification and radiological examination will have to be treated as a strong evidence having corroborative value while determining the age of the alleged juvenile accused. In Dayachand (supra) there was a conflicting evidence regarding date of birth entered in records of two schools in which accused studied. The medical evidence including Age Estimation Report of Medical Board based on radiological examination and other physical characteristics is available. The Apex Court held that the medical opinion is preferable when there is conflicting evidence regarding date of birth entered in records of two schools. These cases relied upon by the learned consul for the petitioner are not helpful to the petitioner at the stage of framing of the charge.

It is established principle of law that at the stage of framing charge, the Court is not expected to go into deep and weigh the evidence as is done in Trial. Resultantly, in the facts and circumstances of the present case, the settled legal position and for the reasons given hereinabove, I do not find any infirmity and illegality in the impugned order that may call for any interference in exercise of powers u/s 482 of Cr.P.C. This petition is devoid of merit and is, therefore, dismissed.