Judgment:
HIGH COURT OF MADHYA PRADESH JABALPUR Criminal Revision No.126/1997 Tabassum Ansari Vs. Vishambhar Budhaulia and others ----------------------------------------------------------------------------------------------------- Present : Hon'ble Shri Justice N.K. Gupta. ----------------------------------------------------------------------------------------------------- Name of counsel for the parties: Shri Mohd. Ali, counsel for the applicant. Shri A.K. Jain, counsel for the respondent No.1. Shri Ajay Tamrakar, Panel Lawyer for the respondent No.3/State. ----------------------------------------------------------------------------------------------------- ORDER
(Passed on 7th day of March, 2013) The applicant has preferred the present revision against the order dated 18.12.1996 passed by the learned Sessions Judge, Betul in S.T. No.147/95, whereby the respondents No.1 & 2 were discharged from the charges of the offences punishable under Sections 363, 366, 376, 344, 392 and 452 of IPC.
2. The prosecution's case, in short is that, the prosecutrix had lodged an FIR on 3.4.1993 that she was married with Mr. Mobin Ansari and she was working as chair person of Mahila Prakoshth Congress, Sarni and therefore the respondents No.1 and 2 were known to her. The respondent Vishambhar met her at Sarni 2 Criminal Revision No.126/1997 for 2-3 times. Once he tried to do some vulgar act with the prosecutrix but on her abusing, he left her. Thereafter, Vishambhar gave a threat to her husband that his son would be kidnapped. On 16.11.1992, the prosecutrix was at her residence at Sarni and at about 1:00 a.m., she went to the door to answer the door bell, where she saw that the respondent Vishambhar Budhaulia, who held a revolver in his hand, closed the mouth of the prosecutrix by the piece of a cloth and threatened her that her son was in his possession and therefore, she should go with him. Also he took some ornaments and clothes of the prosecutrix from a box. He got the signatures appended by the prosecutrix on some blank papers. The respondent Liyakat was also present with the respondent Vishambhar, who participated in the crime. He took robbed property to the vehicle, which was parked in front of the house of the prosecutrix. The respondents No.1 and 2 took the prosecutrix into a forest near Bharat Bharti Vidhalayay and the respondent Vishambhar committed rape upon her. Thereafter, they took her to Bhopal and she was confined in Vishambhar Bhudhaulia's house. On 31.3.1993, the prosecutrix could rescue herself and she went to Betul by a train and informed the entire incident to her in-laws. She had also stated that the respondent Vishambhar committed rape with her for several times in his house. Since she was under threat therefore, she could not lodge any FIR. On 3.4.1993, she lodged an FIR in a written form and a case was registered. The 3 Criminal Revision No.126/1997 statements of the prosecutrix were recorded under Section 164 of Cr.P.C. She had also submitted an affidavit to support her statement.
3. The respondents No.1 and 2 had submitted some documents before the trial Court during the bail application that the prosecutrix had reported at Police Station, Sarni against her husband on the date on which she was alleged to be abducted. Thereafter, there is evidence that she went to Delhi and sent a notice to the editor of Lokmat Samachar with the help of her counsel Shri R.K. Bajwa of Delhi that the publication done by the editor of Lokmat Samachar was incorrect. She had given an affidavit dated 22.12.1992 that a false report was published due to instigation of her husband and she did not want to live with her husband. A letter was also submitted to show that the prosecutrix had sent a letter to D.G. Police that a false case was registered against the respondents No.1 and 2 and therefore, the case may be closed. Again, she had executed an affidavit dated 7.6.1993 to show that the allegations made in the FIR were incorrect. A copy of petition filed under Section 482 of Cr.P.C. filed by the prosecutrix on 20.5.1993 and the prosecutrix prayed that the proceedings of the case may be dropped and proceedings of crime no.93/93 registered at Police Station, Sarni may be quashed.
4. The learned Sessions Judge after considering the submissions made by the learned counsel for the parties vide order 4 Criminal Revision No.126/1997 dated 18.12.1996 discharged the respondents No.1 and 2 from all the charges levelled against them.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the applicant has submitted that at the stage of framing of the charges, no defence evidence can be considered and detailed appreciation of prosecution's evidence cannot be done at this stage. The learned counsel for the applicant has placed the reliance upon the various judgments passed by the Hon'ble Apex Court in the case of “Soma Chakravarty Vs. State through C.B.I.”
. [(2007) 5 SCC 403]. and “State of Orissa Vs. Debendra Nath Padhi”. [(2005) 1 SCC 568]. and therefore it is prayed that the learned Sessions Judge, Betul considered the defence evidence at the time of framing of charges therefore, he committed an error of law and hence, the impugned order may be set aside.
7. The learned counsel for the respondent No.1 has submitted that it is apparent from the record that there are two sets of the evidence are created by the prosecutrix herself. Firstly, that she remains absconding from her in-laws house and when she comes back, she lodged a highly delayed FIR against the respondents No.1 and 2 but earlier then lodging the FIR, she gave a notice to the editor of Lokmat Samachar through an advocate of Delhi and if she was in custody of the respondent No.1 then, neither she could go to Delhi not she could send a notice in such a 5 Criminal Revision No.126/1997 manner. She wrote a letter to the D.G. Police that no such incident took place. All such documents may be deemed concocted but the prosecutrix had moved a petition under Section 482 of Cr.P.C. before the High Court in which she prayed that the proceedings of the concerned case may be quashed and therefore, it is apparent from the documents produced on the record that the respondents No.1 and 2 were unnecessarily harassed by the trial, whereas the allegations were false. It is not necessary that the accused be harassed to face the entire trial when it is visible at the time of framing of the charges that no such offence is made out against the accused. In support of his contention, the learned counsel for the respondent No.1 has placed his reliance upon the judgment passed by the Hon'ble Apex Court in the case of “Satish Mehra Vs. Delhi Administration and another”. [(1996) 9 SCC 766].. The learned counsel for the respondent No.1 has also placed his reliance upon the judgment passed by the Hon'ble Apex Court in the case of “Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and another”. [1989 M.P.L.J.366]..
8. In the present case, if the evidence adduced by the prosecution is considered then, there are some lacuna in that evidence; (1) FIR was lodged with the delay of some days; (2) the alleged rape committed with the prosecutrix was shown to be 4-5 days prior to the date of FIR but in FSL report, semen particles were found in the vaginal swab of the prosecutrix, which indicates 6 Criminal Revision No.126/1997 that she did intercourse with someone else before lodging the FIR and; (3) there is no evidence except the testimony of the prosecutrix. However. It is a general rule that at the time of framing of the charges, if the entire matter is not rebutted then, whether the conviction can be directed by the evidence collected by the prosecution and if answer is affirmative for a particular offences then, the charge of that offence shall be framed. In the present case, the testimony of the prosecutrix cannot be brushed aside. If the defence evidence is not perused and if the defence evidence is not considered as such then, by the testimony of the prosecutrix, it cannot be said that the respondents No.1 and 2 cannot be convicted. However, various judgments passed by the Hon'ble Apex Court which were cited by the learned counsel for the applicant are related to the general rule of framing of the charges but there is also an exception to this general rule that if apparently innocence of the accused person is visible from the record then, he should not be bothered to face the trial. In the case of Dilip Nathumal Chordia (supra), the Hon'ble Apex Court has directed as under:- “Section 227 which confers power to discharge an accused was designed to prevent harassment to an innocent person by the arduous trial or the ordeal of prosecution. How that intention is to be achieved is reasonably clear in the section itself.”
. 7 Criminal Revision No.126/1997 9. In the present case, it is yet to be proved that the prosecutrix was the person, who sent a notice through Shri Bajwa Advocate of Delhi in Lokmat Samachar. Similarly, it was proved by the defence that she gave such an affidavit before the authorities or she had sent a report to the D.G. Police but the copy of the petition filed by the prosecutrix under Section 482 of Cr.P.C. is not at all doubtful. It is not alleged by the prosecutrix that she did not move such a petition before this Court and therefore, it appears that the prosecutrix moved the High Court that the proceedings of the crime no.93/93 may be quashed because the allegations were not correct and a false case was created by the husband of the prosecutrix. Under such circumstances, where the respondents No.1 and 2 had obtained a certified copy of the petition filed under Section 482 of Cr.P.C. alongwith the affidavit annexed in the petition, it would be apparent that the prosecutrix herself admitted before the competent Court that the crime no.93/93 was falsely registered against the respondents No.1 and 2 and it may be quashed. No reason has been given by the prosecutrix as to why she moved such a petition before the High Court. It cannot be presumed that she moved such a petition before the High Court under any pressure. If the copy of the petition and the affidavit annexed with the petition is considered then, there is no possibility of any conviction to the respondents No.1 and 2 for any of the alleged offences. 8 Criminal Revision No.126/1997 10. Under such circumstances, it is apparent on the record that the prosecutrix herself has expressed at proper forum that the case “crime no.93/93”. lodged by her was not correct and therefore, the respondents No.1 and 2 cannot be convicted for any crime as alleged in the FIR of that case. Under such a situation, it is unnecessary that the respondents No.1 and 2 be prosecuted only to harass them. There is no possibility of any success of that particular trial. In this context law laid by the Hon'ble Apex Court in the case of Satish Mehra (supra) may be perused. “ In case of Satish Mehra (Supra), the Hon'ble Apex Court has directed as under: “It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge.”
. “when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. Hence, in the light of the judgments passed by the Hon'ble 9 Criminal Revision No.126/1997 Apex Court in the case of Stree Atyachar Virodhi Parishad (supra) and Satish Mehra's case (supra), if the learned Sessions Judge has discharged the respondents No.1 and 2 then, he has not done any illegality in passing that order. Since no illegality or perversity is visible in the impugned order therefore, there is no reason by which any interference can be done by this Court by way of the present revision in the impugned order. The prosecutrix cannot be permitted to change her view from time to time. If such type of activities are permitted then, the prosecutrix and the complainants of various cases will use that technique in pressurizing the innocent persons, who would be made accused to get some advantage of the pressure.
11. Under such circumstances, the revision filed by the applicant/prosecutrix cannot be accepted. Consequently, it is hereby dismissed. The impugned order passed by the learned Sessions Judge, Betul is hereby affirmed.
12. A copy of this order be sent to the trial Court alongwith the records for information. (N.K. GUPTA) JUDGE 07 03.2013 pnkj