Judgment:
CRR No.1678/2011 Criminal Revision No.1678/2011 6.3.2013 Shri P.S.Tomar, counsel for the applicant.
Shri Ajay Tamrakar, Panel Lawyer for the State/respondent.
Heard the learned counsel for the parties finally.
The applicant has challenged the order dated 29.7.2011 passed by the learned FiRs.Additional Sessions Judge, Sagar in S.T.No.499/2011, whereby the charges of offence punishable under sections 376 (1) and 306 of IPC were framed against the applicant.
The prosecution's case, in short, is that, the deceased Halki Binna was found dead and her body was sent for the post-mortem.
On 10.5.2009, post- mortem was done by the team of doctors and they found that she committed suicide by hanging.
However, her hymen was found intact and slides of her vaginal swab were prepared and sent to the Forensic Science Laboratory for its analysis.
On investigation, nothing could be told by the various witnesses including the father of the deceased.
The witness Ramraj Singh has stated after two years of the incident that the father of the victim told that the applicant was found leaving his house, soon after the incident of hanging, whereas, one witness CRR No.1678/2011 Saligram has stated that he saw the applicant who was visiting the house of Bhikam Chourasiya on and often by maintaining the secrecy of his visits.
After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, there is no eye witness for the offence for which the trial is going on.
The deceased was 17 years old girl and it is no where connected that the semen particles found in her vaginal swab were semen particles of the applicant.
It is no where alleged that the applicant was the person, who committed rape upon the prosecutrix.
The witness Ramraj Singh has stated on the basis of the facts informed by Bhikam Prasad, father of the deceased, whereas father of the deceased did not say anything that he saw the applicant leaving his house soon after the incident and therefore, the evidence of Ramraj Singh comes in the purview of hearsay evidence, which has no evidentiary value.
The witness Saligram could not say on which date the applicant went inside the house of the deceased.
For offence punishable under section 376 of IPC, it was for the prosecution to establish that the offence of rape was committed with the prosecutrix soon before she committed suicide but, there is no such evidence otherwise.
CRR No.1678/2011 Chain of circumstantial evidence does not exist and therefore, there is no apprehension that the applicant was the person, who committed rape upon the deceased prosecutrix.
No offence punishable under section 376 of IPC is constituted against the applicant.
Similarly, there is no reason shown by any of the witnesses as to why the deceased committed suicide.
Since semen particles were found on her vaginal swab, therefore, it was presumed that she committed suicide because of rape committed upon her.
If the statements of the witness Saligram is considered as it is then, he saw the applicant visiting the house of the deceased prosecutrix for so many times but, the prosecutrix never complained to that fact to anyone including her father and therefore, if the applicant was visiting the house of the deceased prosecutrix for cohabitation then, it was with the consent of the prosecutrix and therefore, there was no possibility that due to that act, she would have committed suicide.
Under such circumstances, no overt-act of the applicant is established by the evidence collected by the prosecution that due to his overt-act the deceased committed suicide.
It is possible that due to some other reason, she would have committed suicide.
CRR No.1678/2011 Under such circumstances, no offence under section 306 of IPC is constituted against the applicant.
The learned FiRs.Additional Sessions Judge, Sagar has framed the charges of offence punishable under section 306 and 376 (1) of IPC against the applicant, without any basis.
There was no evidence for framing of such charges.
This is a mistake of law and therefore, it is a fit case, in which an interference is required from the side of this Court, by way of a revision.
Consequently, the present revision filed by the applicant is hereby allowed.
The order dated 29.7.2011 passed by the learned FiRs.Additional Sessions Judge, Sagar is hereby set aside.
The applicant is discharged from the charges of offence punishable under sections 306 and 376 (1) of IPC.
A copy of the order be sent to the trial Court for information and compliance.
Certified copy as per rules.
(N.K.GUPTA) JUDGE Pushpendra