Telangana High Court
Mohd Abdul Areef vs The State Of Telangana on 29 November, 2023
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL REVISION CASE No.676 OF 2022
ORDER:
1. This Criminal Revision Case is filed aggrieved by the orders of the learned Sessions Judge in refusing to discharge these petitioners under Section 227 of Cr.P.C. The police filed charge sheet against these petitioners under Sections 420, 376, 406, 506 r/w 34 of IPC.
2. The case of the victim/ defacto complainant is that she married in the year 2003. Her husband was working at Dubai. She had a female child. Her neighbors were these petitioners who developed friendship with her. On 21.03.2011, A1 went to the house of the victim and forcibly committed rape o her. Though she wanted to lodge complaint, A2 requested her not to file criminal complaint and A1 would marry her after she gives divorce to her husband. A1 was having physical relationship with the victim. During the said relation, she conceived thrice and aborted. A flat was purchased in her name and when she was not present in the house, the belongings worth Rs.30.00 lakhs was removed by A2 on the instructions of A1. She questioned A1 about her luggage, gold 2 and silver items and also his promise of marriage. A1 threatened with dire consequences and also stated that he may not return the property and refused to marry her.
3. Learned counsel appearing for the petitioners would submit that a false complaint was made by the complainant. The allegations made in the complaint are all false and only for the purpose of falsely implicating the petitioners.
4. Learned counsel also raised several grounds including the statement of the complainant being recorded before the Magistrate, no offence being made out for rape, the statements being recorded by two different police statements one contradicting the other, the character of the victim regarding her earlier complaint made against her first husband etc. He also relied on the following judgments; i) Priyanka Srivastava and another v. State of U.P (2012 (10) SCC 517; ii) Dilawar Singh v. State of Delhi ((2007) 10 SCC 585; iii) Parkash Chand v. The State of Himachal Pradesh (2019 (2) SCC (Crl.) 665); iv) Rasiklal Dalpatram Thakkar v. State of Gujarat and others (MANU/SC/1803/2009; v) Babubhai v. State of Gujarat ((2012) 12 SCC 254); vi) Anju Chaudhary v. State of UP( 3 (2013) 6 SCC 384; vii) Shivanna alias Tarkari Shivanna v. State of Karnataka ((2014) 8 SCC 913); viii) Raghubir Saran Jain and another v. State and another ((1995) 2 CALLT 445 HC) and ix) The State of Telangana v. Dasari Murali (Criminal Appeal No.77 of 2020 dated 17.06.2022).
5. The present application is filed under Section 397 Cr.P.C invoking the revisional jurisdiction of this Court. The revision powers exercised by the High Court are limited to satisfy itself regarding the correctness, legality or propriety of the orders passed. There cannot be any elaborate discussion of the evidence produced by the police or any contradictions in between prior statements of witnesses as argued by the counsel. There cannot be a mini trial at the stage of discharge.
6. The impugned order was passed even prior to examination of witnesses. The victim made serious allegations of commission of rape against A1. Learned Magistrate having discussed the evidence against the accused, found that a prima facie case is made out against the accused, for which reason, prayer for discharging the accused was refused. Learned Sessions Judge further held that the 4 innocence or otherwise of the accused can be adjudicated after giving an opportunity to the victim and other witnesses.
7. At the stage of framing charge, the trial Court cannot enter into the correctness or otherwise of the statements made by the witnesses unless such statements lacks prudence or highly improbable. Any contradictory statements made earlier can only be made use of during the course of trial. The duty of the trial Court at the stage of framing charge is to see whether a prima facie case is made out and that there is a strong suspicion of the accused having committed the said acts. When prima facie, the ingredients of the penal provisions are made out, the trial Court is bound to frame charges and cannot discuss the infirmities in investigation or the defence of the accused.
8. The allegations against the 2nd petitioner/A2 are that: i) She pleaded with the victim not to lodge criminal complaint against A1;
ii) A2 assured the victim that they would legally adopt the victim's daughter after her divorce; iii) At the instance of A1, A2 had taken away the belongings of the victim from her flat; iv) A2 supported A1 in committing rape and cheating the victim.
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9. In the entire complaint that is lodged except stating that articles worth Rs.30.00 lakhs was taken by A2 at the instance of A1, there is no narration of the alleged articles or the details of such articles. No such articles were recovered during the course of investigation from A2. In the absence of details of articles given during investigation or in the complaint and the police during the course of investigation not identifying any such articles, nor any recoveries or seizures being affected, A2 cannot be mulcted with criminal liability of theft or criminal misappropriation. Though, initially, complaint was lodged for the offence of theft under Section 379 of IPC, charge sheet was filed for the offence under Section 406 of IPC. There is no evidence of any kind of entrustment to A2, as such, the question of attracting offence under Section 406 of IPC does not arise. Further, the case against A2 is that she requested the victim not to lodge criminal complaint against A1 and also informed that after divorce of defacto complainant with her husband, the child would be adopted. The said allegations do not constitute an offence of cheating. For offence under Section 420 of IPC to be made out, a person should have practiced deception, pursuant to which a person deceived should have delivered 6 property. Even admitting that A2 requested the victim not to lodge complaint or that the child would be adopted at a later date will not constitute an offence of cheating.
10. Both in the private complaint, Section 161 of Cr.P.C statement and also the statements before the Magistrate, the victim has specifically stated that A1 had subjected her to rape. A1 also made promise of marriage after he committed rape on her for the first time. In the present facts of the case where A1 had made false promise of marriage only to overcome criminal complaint of rape, the culpability or otherwise of A1 has to be determined after adducing evidence of the victim. Only for the reason of there being sexual relation over a period of time resulting in the defacto complainant carrying pregnancy thrice and being aborted, it cannot be said at this stage even before evidence is adduced that the relation was consensual. The facts differ from case to case. In the present facts at the threshold, it cannot be said that no offence is made out against A1.
11. Accordingly, Criminal Revision Case is allowed in part setting aside the criminal proceedings against A2 in S.C.No.26 of 2020 on 7 the file of Special Judge for Fast Tracking the cases relating to atrocities against Women-1-cum-X Additional Metropolitan Sessions Judge at Hyderabad. However, the proceedings shall continue against A1. Consequently, miscellaneous petitions, if any, shall stand closed.
__________________ K.SURENDER, J Date: 29.11.2023 kvs