Smt. Subhi vs State of U.P. and Another

A.K. Roopanwal, J.—This application u/s 482, Cr.P.C. has been moved for setting aside the orders dated 5.9.07 passed by the Additional Chief Judicial Magistrate, Saharanpur in case No. 293/06, under Sections 376, 452, 506, 323, 354, IPC and 24.4.08 passed by the Additional District Judge, Saharanpur in criminal revision No. 326/07 whereby the complaint filed by the applicant was dismissed.

It appears from the record that an FIR registered at crime No. 187/99, u/s 376, 452, 506, 323, IPC was lodged by the applicant at P.S. Nakud, District Saharanpur on 1.11.99 for the occurrence dated 30.10.99. This FIR was investigated and final report was submitted by the police. Against this final report protest petition was filed by the applicant. The trial Magistrate vide order dated 14.5.07 rejected the protest petition and accepted the final report. Thereafter, the applicant filed a complaint. It was alleged by her in that complaint that on 30.10.99 at about 4.00 p.m. she and her husband had gone to the fields and their young daughter Pooja @ Bhagyawati aged about 15 years was all alone at the house. Accused Vikram and Raju came into the house and after closing the main door they committed rape with the girl on knife point. When the girl objected, she was beaten. On her cries Dinesh, Jaswant, Ravindra and others reached there who tried to apprehend the accused persons but they managed to run away. When the complainant and her husband came back from the fields, they were told about the occurrence by the victim. Then, the applicant lodged the report, however, she could not get justice.

In support of the complaint the applicant examined herself, victim Pooja, witnesses Ravindra and Jaswant. The applicant also filed the medical examination report of the girl. The trial Magistrate considered the evidence and finding some variation in the statements of the witnesses dismissed the complaint vide order dated 5.9.07. Against this order revision was filed and that revision was also dismissed.

Heard Mr. B.R. Singh, learned Counsel for the applicant, learned AGA and perused the record.

Mr. Singh argued that the trial court was not justified in meticulously examining the statements of the witnesses and therefore, the order dated 5.9.07 dismissing the complaint is an improper order. In the like manner the revisional court was also not justified in dismissing the revision.

A look at the impugned order would reveal that the trial Magistrate found that the witness Jaswant had stated that all the witnesses entered into the house while the case set up in the complaint was that the house was closed from inside. Though no such statement was given by Jaswant but even if there was some variation between the statement and the complaint by that alone the statement of the witness could not be belied. The presence of the witness was not liable to be disbelieved in view of his whole statement. The statements of Jaswant and Ravindra were found unbelievable as Ravindra had stated that Jaswant and Dinesh met him outside the house of the complainant while Jaswant said that all assembled in the market. I feel that such discrepancy could be possible due to lapse of time between the statements and the occurrence and therefore, on the above ground it was not justified to reject the statements of both the witnesses. The statements of Ravindra and Jaswant were also discarded as Ravindra had stated that he had seen the accused running and they had gone up to some distance while Jaswant did not say so. That was also a minor difference and was not liable to belie the factum of presence of these witnesses at the time of the alleged occurrence.

The statement of victim was discarded as she had stated that Raju was having a knife while Jaswant had stated that Vikram was having a knife. This, in my view, could not be a matter to discard the whole statement of the girl.

The statement of the girl was also discarded as it did not find support from the medical evidence. Though in the medical examination no spermatozoa was found in the vaginal smear but this could not be a ground to discard the testimony of the girl when she had stated that both the accused had committed sexual intercourse with her.

The statement of Jaswant was also discarded as he had given an affidavit before the police against the case of the complainant. When Jaswant had stated that the affidavit was obtained by practising fraud upon him, hence, that affidavit was not capable to belie the witness and on such a ground he should not have been discarded.

The trial court rejected the statement of Pooja on one more ground. It was that she had stated before the I.O. that she was taken to the court by the witnesses while she did not state so in her statement before the court.

I feel that the above lapse in the statement before the court could not be a valid ground for discarding the statement of the girl.

It is the trite proposition of law that at the stage of taking cognizance on a complaint meticulous examination of the witnesses is not required. The court should not act as a trial court and should not discuss the evidence as is expected during the trial. If a prima facie case is made out from the evidence, then the order of summoning should be passed. This proposition of law was not followed by the trial court in the present case.

In view of the above discussion, I find that the trial court had wrongly dismissed the complaint and so the revision was also wrongly dismissed. Both the orders are, therefore, liable to be set aside.

Accordingly, the application is allowed. Orders dated 5.9.07 and 24.4.08 are, hereby, set aside. The matter is sent back to the trial court for passing a fresh order in the light of the discussion made above.