Sunil Kumar Azad vs The State Of Jharkhand
2022 Latest Caselaw 1730 Jhar

                              1

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. Revision No. 145 of 2022
                          .....

 Sunil Kumar Azad                            ..... Petitioner
                        Versus
The State of Jharkhand                       ...... Opp. Party

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                         Present
         HON'BLE MR. JUSTICE SANJAY PRASAD
                         -----
For the Petitioner       : Mr. Awinash Kumar, Advocate
For the State            : Mr. P. D. Agrawal, A.P.P.
                         ......

C.A.V. on 13.04.2022                Pronounced on 02/05/2022

Heard Mr. Awinash Kumar, learned counsel appearing on behalf of the petitioner and Mr. P. D. Agrawal, learned counsel for the State.

2. This Criminal Revision No. 145 of 2022 has been filed challenging the order dated 09.02.2022 passed by the learned Additional Sessions Judge-IV, Hazaribag in connection with POCSO Case No. 84 of 2020 instituted for the offence under Section 376 (AB), 370(D) of the Indian Penal Code and Section 4/8 of the POCSO Act by which the learned Additional Sessions Judge has rejected the petition filed on behalf of the petitioner under Section 227 of the Cr. P. C. to discharge him.

3. The FIR has been instituted on the basis of written report of informant Rani Kumari, one of the Members of Child Welfare Committee (in short to be referred as "CWC"), Hazaribag, in which it is alleged that the victim girl is aged about 11 years and she has been handed over to CWC, Hazaribag on 12.05.2018. The said girl was very frightened and she started telling about the occurrence on 19.05.2018 and it is stated by her that while the said victim girl was doing household work in a house at Tilaiya where

some relative took the victim girl to Hazaribag and she thought that she would live there happily but the behaviour of the accused, who has been said as 'Uncle' available at house, he used to commit bad behaviour with her and he also used to make sexual assault with her. Whenever, she made protest, he used to assault her and does not allow her to tell the matter to anyone. Whenever, she said the matter to his wife, he used to assault her mercilessly due to which on pretext of bringing milk she went away from the house. After taking milk she asked to a person about the way to Koderma. Thereupon, the said person called the members of Child Welfare Committee. Thereafter, she has been brought to CWC where she remained for 3-4 days thereafter, she has been taken to CWC, Koderma by bus on 24.03.2018. It is further stated that the victim girl does not want to go to her father, rather, she wants to study.

4. It is submitted by the learned counsel for the petitioner that the order dated 09.02.2022 passed by the learned Court below is illegal and not sustainable in law. It is submitted that there are major inconsistencies and variations in the statement of the prosecutrix in the first counselling report conducted by CWC, Hazaribagh dated 19.03.2018 and the second counselling report conducted by CWC Koderma dated 26.03.2018. It is further submitted that written complaint was submitted by a member of CWC namely, Rani Kumar on 19.05.2018 and the statement of the prosecutrix under Section 164 of the Cr. P. C. was recorded by the Judicial Magistrate dated 21.05.2018. It is submitted that there is major contradiction in the first counselling report as in the first counselling report dated 19.03.2018, the prosecutrix has stated only about doing household work and getting three litres of milk everyday and in the second counselling report dated 26.03.2018, it is alleged that the petitioner used to misbehave and beat her and

the petitioner used to establish physical relationship with her against her wishes. It is submitted that even the statement of the victim girl recorded under Section 164 of the Cr. P. C. dated 25.01.2018 is also not reliable. It is submitted that at some place the prosecutrix has signed as Pooja Kumari whereas during her statement recorded under Section 164 of the Cr. P. C., she has signed as Prerna Sharma. It is further submitted that no sign of rape was found in the medical report of the prosecutrix and the FIR was lodged after inordinate delay. It is further submitted that petitioner was granted anticipatory bail in A. B. A. No. 6965 of 2018 by the High Court of Jharkhand, Ranchi on 25.02.2019. It is submitted that the mother of the victim girl has not supported the case against the petitioner and as such, the Court below has committed illegality by rejecting the discharge petition filed under Section 227 of the Cr. P. C. and as such, Criminal Revision No. 145 of 2022 is fit to be allowed and the order dated 09.02.2022 passed by the learned Additional Sessions Judge-IV, Hazaribag is fit to be set aside in the interest of justice.

5. On the other hand, learned counsel for the State has opposed the prayer. It is submitted that order dated 09.02.2022 passed by the learned Additional Sessions Judge-IV, Hazaribag is fit and proper and no interference is required from this Court. It is submitted that there is direct allegation against the petitioner in the FIR for committing rape upon her on the various occasions and the victim girl is aged about 11 years. It is submitted that the victim girl during her statement recorded under Section 164 of the Cr.P.C. has fully supported the commission of rape upon the victim girl by the petitioner at several times and she has further stated that the petitioner used to assault her. It is submitted that even in the first counselling report dated 19.03.2018 and the second counselling report dated 26.03.2018, it is evident that the petitioner used to

assault and commit rape upon her several time and the victim girl was even not provided with food on several occasions. It is submitted that several witnesses have supported the allegation against this petitioner, which is evident from the impugned order passed by the learned Court below and as such, the Criminal Revision No. 145 of 2022 is fit to be dismissed.

6. Perused the FIR as well as First and Second Counselling Reports dated 19.03.2018 and 26.03.2018 respectively and the impugned order passed by the learned Court below and considered the submissions of both the sides.

7. It transpires from the FIR that the petitioner has sexually exploited the victim girl aged about 11 years several times and the petitioner used to establish illicit physical relationship with her against wishes of the victim girl and he used to assault her several time, whenever she has resisted against the desire of the petitioner. It appears that the victim girl was handed over to the Child Welfare Committee (in short referred as CWC) on 12.05.2018 and where she narrated all the above facts to the informant Rani Kumari, who is working in CWC, Hazaribag. It further appears from first counselling dated 19.03.2018 that the petitioner has alleged against the petitioner on the point of assault and providing little food. However, in the Second Counselling report dated 26.03.2018, it would appear that the victim girl has alleged that the petitioner used to assault and had established physical relationship with her and whenever she resisted, the petitioner had assaulted her.

8. From perusal of the report of Medical Officer dated 04.04.2018, which is enclosed at page-45 of this Criminal Revision Application, it would appear that although no external or internal injury was found, but the doctor has opined that the victim girl is sexually experienced. Therefore, it would appear that the

victim girl has been subjected to sexually assault by the petitioner.

9. From perusal of the impugned order passed by the learned Court below, it would appear that a reasoned order has been passed by the learned Court below by rejecting the discharge petition after considering the several documents filed on behalf of the petitioner. It further transpires from the impugned order passed by the learned Court below that charge sheet has been submitted by the police against the petitioner under Section 376 (AB) and 370(D) of the Indian Penal Code and Section 4/8 of the POCSO Act.

10. It is well settled from a catena of decisions that meticulous examination of statement of witnesses has not to be done at the time of framing of charges. It is also well settled that the defence of the accused person cannot be looked into at the time of framing of charges.

11. It has been held in the case of Anup Kumar Lakhotia Vs. The Union of India through Central Bureau of Investigation reported in 2022 (1) JLJR page 127. Para-25 of the said judgment is as follows:

"25. The learned court below, while considering the petition for discharge considered the scope of Section 227 of Cr. P. C. and recorded that hearing the submissions of the accused as postulated by Section 227 means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material is to be granted to the accused. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."

12. It has been held in the case of State by the Inspector of Police, Chennai Vs S. Selvi and Another reported in 2018 (13) SCC 455 at Para -10 as follows:

"10. If on the basis of the material on record, the Court would form prima facie opinion that the accused might have committed the offence, it can frame charge, though for conviction it is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of charges, the probative value of the material on record has to be gone into and the Court is not expected to go deep into the matter and hold that the materials would not warrant conviction. The Court is required to evaluate the material on

record at the stage of Section 227 or 239 of the Code, as the case may be, only with a view to find out if the facts emerging therefrom taken at the face value discloses the existence of all the ingredients constituting the alleged offence. It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with the presumption that materials brought on record by the prosecution are true and evaluate such material with a view to find out whether the facts emerging therefrom taken at their face value disclose existence of the ingredients of the offence."

13. Thus in view of the law laid down by the Hon'ble Supreme Court of India and also considering the gravity of offence, I find that the Court below has committed no illegality by passing the impugned order dated 09.02.2022 passed by the learned Additional Sessions Judge-IV, Hazaribag in connection with POCSO Case No. 84 of 2020 by rejecting the petition for discharge filed on behalf of the petitioner.

14. Thus, the Criminal Revision No. 145 of 2022 has been filed on behalf of the petitioner is devoid of merit.

15. Accordingly, the Criminal Revision No. 145 of 2022 is dismissed.

16. However, the State Authorities including the Deputy Commissioner, Hazaribag and Superintendent of Police, Hazaribag shall ensure the welfare of the victim girl as per provision of Section 2(58) and 45 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and also as per the Victim Compensation Scheme, 2012 as amended in the year 2019 and they shall also co-ordinate with JHALSA to provide with monetary benefits to the victim child.

17. Let a copy of this order be sent to the learned Principal of District and Sessions Judge, Hazaribag, Deputy Commissioner, Hzaribag and Superintendent of Police, Hazaribag and the learned Member Secretary, JHALSA.

(Sanjay Prasad, J.) Kamlesh/