Delhi High Court
State vs Dr.Gajraj Singh on 16 January, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 16th January, 2017
+ CRL.REV.P. 9/2017
STATE ..... Petitioner
Represented by: Ms. Kamna Vohra, Additional
Standing Counsel for State with
SI Rekha, PS Mayur Vihar.
versus
DR.GAJRAJ SINGH ..... Respondent
Represented by: None.
+ CRL.REV.P. 10/2017
STATE ..... Petitioner
Represented by: Ms. Kamna Vohra, Additional
Standing Counsel for State with
SI Rekha, PS Mayur Vihar.
versus
DR.GAJRAJ SINGH ..... Respondent
Represented by: None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. FIR No.387/2015 under Section 354 IPC and Section 10 of the
Protection of Children from Sexual Offences Act, 2012 (in short 'POCSO
Act') was lodged on the complaint of the prosecutrix who stated that she was
12 years old and on 22nd June, 2015 at about 10.00 am she had gone to
Homeopathy Dispensary at Block-26, Trilok Puri for her check up along
with her mother. When her mother told the doctor that she was having
stomach, the doctor started checking her stomach by pulling up her top and
thereafter pulled down her pyjama and started touching her private part with
his hand on which her mother caught hold off his hand and asked him what
he was doing on which the doctor said that he was examining her. On her
mother asking to complaint against him, the doctor said that whatever she
wants to do she can do. She made a call to the police.
2. FIR No.388/2015 under Section 354 IPC and Section 10 of the
POCSO Act was lodged on the written complaint of the prosecutrix who
stated that she was 17 years old and on 22 nd June, 2015 around 10.00 AM
she had gone to Homeopathy Dispensary at Block-26, Trilok Puri. When
she told the doctor that she was having pain in the stomach, the doctor told
her to pull over her shirt so that he could check her. When she pulled her
shirt, the doctor checked her stomach and asked her to loosen her string of
salwar so that he could check. The prosecutrix protested stating that it was
her stomach which was paining and did not open the salwar however, the
doctor kept his hand over her lower portion from over the salwar due to
which she got terrified. When she came home she told her mother and gave a
written complaint.
3. Both the prosecutrix were produced before the learned Metropolitan
Magistrate for recording her statement under Section 164 Cr.P.C. wherein
they completely exonerated the respondent. They stated in her statement
under Section 164 Cr.P.C. that on 22nd they had gone with her mother to the
dispensary and went to the doctor without following the line due to which
the doctor scolded her. They started crying and their mother called the
police on phone. They did not know what happened thereafter.
4. Based on the statements recorded under Section 164 Cr.P.C., the
learned Additional Sessions Judge discharged the respondent. Challenging
the orders dated 23rd July, 2016, the State prefers the present petitions.
5. Learned Additional Standing counsel for the State submits that in view
of the complaints of both the prosecutrix and statement under Section 161
Cr.P.C. wherein they supported the prosecution case, the respondent could
not have been discharged merely on the basis of the statements recorded
under Section 164 Cr.P.C. and the respondent is required to face trial for the
offence alleged.
6. Supreme Court in the decision reported as 2010 (9) SCC 368 Sajjan
Kumar vs. Central Bureau of Investigation after considering various
decisions of the Supreme Court, summarized the principles with respect to
scope of Sections 227 and 228 of Cr.P.C. as under:
21. On consideration of the authorities about the scope of
Sections 227 and 228 of the Code, the following principles
emerge:
(i) The Judge while considering the question of
framing the charges under Section 227 CrPC has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima
facie case against the accused has been made out. The
test to determine prima facie case would depend upon
the facts of each case.
(ii) Where the materials placed before the court
disclose grave suspicion against the accused which has
not been properly explained, the court will be fully
justified in framing a charge and proceeding with the
trial.
(iii) The court cannot act merely as a post office or a
mouthpiece of the prosecution but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the court,
any basic infirmities, etc. However, at this stage, there
cannot be a roving enquiry into the pros and cons of
the matter and weigh the evidence as if he was
conducting a trial.
(iv) If on the basis of the material on record, the
court could form an opinion that the accused might
have committed offence, it can frame the charge,
though for conviction the conclusion is required to be
proved beyond reasonable doubt that the accused has
committed the offence.
(v) At the time of framing of the charges, the
probative value of the material on record cannot be
gone into but before framing a charge the court must
apply its judicial mind on the material placed on record
and must be satisfied that the commission of offence by
the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is
required to evaluate the material and documents on
record with a view to find out if the facts emerging
therefrom taken at their face value disclose the
existence of all the ingredients constituting the alleged
offence. For this limited purpose, sift the evidence as it
cannot be expected even at that initial stage to accept
all that the prosecution states as gospel truth even if it
is opposed to common sense or the broad probabilities
of the case.
(vii) If two views are possible and one of them gives
rise to suspicion only, as distinguished from grave
suspicion, the trial Judge will be empowered to
discharge the accused and at this stage, he is not to see
whether the trial will end in conviction or acquittal.
7. The present is not a case where there are some material changes or
improvements or differences from the statements on the basis of which FIR
was registered and recorded under Sections 161 Cr.P.C. Statements under
Section 164 Cr.P.C. were recorded by the Magistrate after verifying the
voluntariness of both the prosecutrix to make the statements and that they
were under no threat or coercion. As per the statements recorded under
Section 164 Cr.P.C. the police was called after the doctor scolded both the
prosecutrix and their mother for not following the line. Even during trial
the two statements, that is, one recorded under Section 161 Cr.P.C. and other
under Section 164 Cr.P.C. are not reconcilable. The distinction between the
two being so severe that even without a roving and fishing inquiry it can
safely be held that at this stage itself there is no strong suspicion to proceed
against the respondent. As held by the Supreme Court, even at the stage of
framing of charge, the Court has not to act as the mouthpiece of the
prosecution but should examine the broad probabilities of case.
8. In view of the discussion aforesaid, I find no error in the orders passed
by the learned Additional Sessions Judge discharging the respondent.
9. Petitions are dismissed.
(MUKTA GUPTA)
JUDGE
JANUARY 16, 2017
'vn'
