Subodh Shrivastava vs The State Of Madhya Pradesh

This criminal revision is directed against the order dated 11.07.2016 passed by the Court of II Additional Sessions Judge, Narsinghpur, in Sessions Trial No.182/2016, whereby a charge under sections 457, 354, 376 and 306 of the Indian Penal Code was framed against petitioner Sandeep Vishwakarma.

As per prosecution case, the prosecutrix was a 19 years old unmarried girl. On 19.02.2016 at about 11:00 p.m. when the prosecutrix was sleeping at her home along with her 14 years old brother Satpal @ Sattu and her grandmother Diglo Bai, the petitioner entered the house of the prosecutrix and raped her. When the prosecutrix raised an alarm, Satpal woke up and saw the petitioner committing rape upon the prosecutrix. Satpal rescued the prosecutrix but the petitioner threatened Satpal that he would kill him by firing a country made pistol, though the petitioner had no pistol at that time. Next day, the prosecutrix consumed sulphas tablets. She was taken for treatment to Narsinghpur, Jabalpur and Nagpur but on her way back from Nagpur to Narsinghpur, she expired.

It has been submitted on behalf of the petitioner that in the statements of prosecution witnesses including eye witness Satpal was recorded on 22.03.2016, i.e., 26 days after the incident. In that statement Satpal had not alleged that the petitioner had committed rape upon the prosecutrix. It was only alleged that the petitioner had entered the house of the prosecutrix with bad intention and was having a scuffle with the prosecutrix. Therefore, the original charge sheet against the petitioner was filed by the police only under sections 457, 354 & 306 of the Indian Penal Code. However, later, the father of the prosecutrix made a complaint to the Chief Minister Helpline. As a result, the statements of the prosecution witnesses including Satpal, were recorded a second time on 27.10.2016, i.e., about 8 months after the date of the incident. In those statements, Satpal alleged that he saw the petitioner committing rape upon his sister; therefore, a supplementary charge-sheet under section 376 of the Indian Penal Code was filed. On the basis of both the charge-sheets put together, charge under sections 457, 354, 376 & 306 of the Indian Penal Code has been framed.

Learned counsel for the petitioner has challenged the order framing charge mainly on the ground that the prosecutrix was a major being 19 years old. She was capable of according legal consent for sexual intercourse. It is highly improbable that a person of common prudence would try to rape a major girl in the room in which she was sleeping with her younger brother and grandmother. It has further been submitted that the allegation of rape was missing from the first statement made under section 161 of the Code of Criminal Procedure. It was added 8 months later when statements under section 161 were recorded a second time. Such a course is not permissible in the law. As such, at least the charge under section 376 of the I.P.C. is not made out.

Learned panel lawyer for the respondent/State on the other hand has supported the charge framed under all the sections.

It may be noted at the outset that at the stage of framing charge even a grave suspicion based upon admissible material of the existence of the ingredients constituting alleged offence, is sufficient to frame charge. At the stage of the charge, the Court would not critically examine the evidence to see whether there are grounds for convicting the accused under a particular provision. The probative force of the evidence proposed to be adduced by the prosecution, shall also not be prejudged by the Court. The argument advanced on behalf of the petitioner that the prosecution story with regard to rape as alleged in the statement of Satpal is highly improbable, is not available to the petitioner.

In any case, it is not the contention of the petitioner that this is a case of clear discharge from all offenses. His objection is only with regard to framing of charge under section 376 of the I.P.C. No prejudice would be caused to the petitioner if trial is held for the charge under section 376 as well. In case, offence under section 376 of the I.P.C. is not found to be proved, he can be acquitted of that charge by the trial Court. It has been held by the Supreme Court in the case of State of Maharashtra vs. Salman Salim Khan, AIR 2004 SC 1189 that:

The law governing the trial of criminal offences provides for alteration of charges at any stage of the proceedings depending upon the evidence adduced in the case. If the trial is being held before a Court of Magistrate it is open to that Court at any stage of trial if it comes to the conclusion that the material on record indicates the commission of an offence which requires to be tried by a superior Court, it can always do so by committing such case for further trial to a superior Court as contemplated in the Code of Criminal Procedure (the Code). On the contrary, if the trial is being conducted in a superior Court like the Sessions Court and if that Court comes to the conclusion that the evidence produced in the said trial makes out a lesser offence than the one with which the accused is charged, it is always open to that Court based on evidence to convict such accused for a lesser offence. Thus, arguments regarding the framing of a proper charge are best left to be decided by the trial Court at an appropriate stage of the trial. Otherwise as has happened in this case proceedings get protracted by the intervention of the superior Courts.

But for the fact that two Courts below i.e. the Sessions Court and the High Court having gone into this issue at length and having expressed almost a conclusive opinion as to the nature of offence, we would not have interfered with the impugned order of the High Court because, as stated above, neither of the sides would have been in any manner prejudiced in the trial by framing of a charge either under Section 304-A or Section 304, Part II, IPC except for the fact that the forum trying the charge might have been different, which by itself, in our opinion, would not cause any prejudice. This is because at any stage of the trial it would have been open to the concerned Court to have altered the charge appropriately depending on the material that is brought before it in the form of evidence. But now by virtue of the impugned judgment of the High Court even if in the course of the trial the Magistrate were to come to the conclusion that there is sufficient material to charge the respondent for a more serious offence than the one punishable under Section 304-A, it will not be possible for it to pass appropriate order. To that extent the prosecution case gets pre-empted."

In this view of the matter, there is no ground for interference with the charge framed under section 376 of the Indian Penal Code.

Consequently, this criminal revision deserves to be and is accordingly dismissed.