Sulochana And Ors. vs State Of Madhya Pradesh And Ors.

The applicants have preferred this revision petition under Section 397/401 of the Cr.P.C. against the order dated 07/09/2017 passed by 5th Additional Sessions Judge, Indore in S.T. No. 462/2016, whereby charges for commission of offence punishable under Sections 451, 376(D)/109 and 506(II) of the IPC have been framed against the applicants.

Briefly stated facts of the case are that the respondent No.2/prosecutrix had filed a private complaint on 28/10/2013 before the court of Learned Judicial Magistrate First Class, Indore under Section 451, 376 and 506/34 of the IPC against the applicants alleging therein that in the intervening night of 25/10/2013 and 26/10/2013, the applicant No.1 came to her house and knocked the door. When she opened the door, the applicant Nos. 2 and 3 forcibly entered into the house and committed rape with her at the instance of knife. It is further alleged that after the said incident, she had approached the concerned police-station at about 00:30 hrs. for lodging the FIR, but the SHO refused to lodged the complaint. Later on, the prosecutrix/respondent No.2 sent a notice through her lawyer for demand of justice to the Several Police Authorities on 27/09/2013 but no action had been taken by the Authorities, therefore, she was forced to file the private complaint before the court of Judicial Magistrate First Class, Indore.

After conducting the preliminary enquiry, the learned Magistrate recorded the statement of the prosecutrix and her witnesses under Sections 200 and 202 of the Cr.P.C. respectively to enable him to consider regarding taking of cognizance on the said complaint. Thereafter, upon finding prima facie case for commission of offence punishable under Sections 451,376 and 506/34 of the IPC, learned Magistrate vide order dated 19/01/2015 issued the arrest warrant against the applicants and after appearance of the applicants, he committed the case to the Sessions Court and finally it was transferred to the Court of 5th Additional Sessions Judge, Indore.

The applicants filed an application under Section 227 of the Cr.P.C. before the Sessions Court for discharging them, however, the said application was dismissed by the trial Court, vide order dated 18/07/2017 and framed the charges for commission of offence punishable under Sections 451, 376(D)/109 and 506(II) of the IPC against the applicants vide order dated 07/09/2017, which is a subject matter of challenged before this Court in the present revision petition.

Learned counsel for the applicants submitted that the trail Court did not consider the fact that the notice for demand of justice sent by the prosecutrix/respondent No.2 through her lawyer on 27/09/2019 alleging that after the said incident, when she reached to the police-station, the police officers were drunk and refused to lodge the FIR of the alleged incident. The respondent No.1 replied the said notice on 09/11/2013 mentioning that after receiving the said notice, an enquiry has been conducted for the aforesaid matter and it was found on that date i.e. 25/09/2013 at about 22:30 p.m. to 1:25 a.m. (midnight of 25/09/2013 and 26/09/2013), the Higher Police Officials of the Police Department were present on the police-station for surprise inspection of the police-station, therefore, the allegations made by the prosecutrix/respondent No.2 that she approached to the Police Station at 00:30 hrs in the midnight of 25/09/2013 to 26/09/2013 are totally false and baseless. The CCTV cameras were installed in the premises of the police-station also does not corroborate the said allegation of the prosecutrix. It is also submitted that the trial Court has also not considered the fact that the enqurity report prepared by the respondent No.1 on 12/10/2013 and sent to the Superintendent of Police after investigating the said incident of 25/09/2013, wherein it is mentioned that the prosecutrix/respondent No.2 is living with the applicant No.1 since last five years in "live in relationship" with her own sweet will and when the relations brake up between them, the prosecutrix started harassing the applicants for the purpose of blackmailing. It is further submitted that the applicant No.2 is the government employee working in the department of transport and at the time of alleged incident, he was posted at check post Burhanpur and as per letter dated 26/10/2013 issued by Inspector, Check Post, Burhanpur, applicant No.2 was promptly attended his duty from 14/09/2013 and 26/09/2013, therefore, no question arises regarding the presence of applicant No.2 on the spot at the time of alleged incident. It is also pointed out that prior to the registration of the said FIR, the applicants have filed separate private complaints against the prosecutrix under Section 340 and 195 of the Cr.P.C. with regard to suppressing of facts and made false statement/evidence before the trial Court and the said complaint was duly registered on 24/12/2014 by the trial Court. The prosecutrix harassing the applicants in order to grab the money and on their refusal to pay the money, she has lodged the false FIR against the applicants. It is also submitted that earlier also the prosecutrix has lodged an FIR against the applicants at Police-station-MIG Indore regarding the commission of same offence. Thus, there is no material available on record to frame the charge for commission of offence punishable under Sections 451, 376(D)/109 and 506(II) of the IPC against the applicants. Under these circumstances, learned counsel for the applicants prays for setting aside of order dated 07/09/2017 passed by 5th Additional Sessions Judge, Indore in S.T. No. 462/2016.

On the other hand, learned Public Prosecutor for the respondent No.1/State and learned counsel for the respondent No.2/prosecutrix vehemently opposed the prayer by contending that from the averments made in the FIR as well in the statement of the prosecutrix and other witnesses recorded under Sections 200 and 202 of the Cr.P.C., prima facie charge for commission of offence punishable under Sections 451, 376(D)/109 and 506(II) of the IPC is made out against the applicants. So far as the ground raised by the applicants for setting aside of the impugned order are concerned, they are depends upon the evidence adduced by the parties before the trial Court, therefore, it cannot be considered at this stage. Under these circumstances, they prayed for rejection of the petition.

Having heard learned counsel for the parties and perused the documents placed alongwith the present petition.

From the averments of the complaint filed by the complainant/respondent No.2 before the trial Court, it appears that the prosecutrix/respondent No.2 alleged that in the intervening night of 25/10/2013 and 26/10/2013, the applicant No.1 came to her house and knocked the door. When she opened the door, the applicant Nos. 2 and 3 forcibly entered into the house and committed rape with her at the instance of knife and this fact is also find placed in her statement recorded under Section 200 of the Cr.P.C., on the basis of which there is sufficient material available on record to framed the charge for commission of offence punishable under Sections 451, 376(D)/109 and 506(II) of the IPC against the applicants.

In the case of Chitresh Kumar Chopra vs. State (Govt. of NCT of Delhi) reported in 2009 (16) SCC 605, the Supreme Court has held under:

"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. (See Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76)."

In the case of Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao, 2012 AIR SCW 5139, the Apex Court considered 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.

Considering the aforesaid material placed before the Court, prima facie there is sufficient ground to framed charges for commission of offence punishable under Sections 451, 376(D)/109 and 506(II) of the IPC against the applicants and in the opinion of this Court, learned trial Court has not committed any illegality in framing the charge for alleged offence against the applicants. So far are the grounds raised by the applicants for setting aside of the impugned order is concerned, it is a matter of evidence and it cannot be considered at the stage of framing of charge.

Taking this view of the matter, the revision petition is dismissed and the trial Court is directed to continue the trial regarding charges framed against the applicants.

Let a copy of this order be sent to the trial Court alongwith the records for information and necessary compliance.