Victim A vs The State Of Madhya Pradesh
2021 Latest Caselaw 9016 MP

     THE HIGH COURT OF MADHYA PRADESH
       PRINCIPAL SEAT AT JABALPUR
     Hon'ble Shri Justice Rajendra Kumar Srivastava
                       Cr.R. No.2202/2021


                            Victim-A
                                 Vs
                State of Madhya Pradesh & Ors.
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       Shri A.K. Sharma, learned counsel for the
petitioner.
       Shri     Amit     Pandey,      learned      P.L.    for    the
respondent/State.
       Shri Vinod Tiwari, learned counsel for the objector.
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                                 ORDER

(21.12.2021)

The petitioner has filed the instant petition

under Section 397/401 of Cr.P.C. being aggrieved by the

order dated 31.07.2021 whereby the learned Additional

Sessions Judge, Naugaon, District-Chhatarpur has

discharged the respondent Nos.2 and 3 from the offences

punishable under Sections 376, 294, 324, 506/34 and 109

of the IPC as well as Section 3/4 of POCSO Act.

Cr.R. No. 2202/2021

2. The brief facts of the case are that on 04.11.2020,

the petitioner/victim-A lodged the Dehati Nalshi stating

therein that 8 to 9 months ago, the respondent No.4. i.e. Ankit

Kushwaha who is cousin of petitioner/victim, committed

sexual intercourse with her forcibly which resulted into her

pregnancy. She delivered a baby girl on 04.11.2020. On the

basis of said report, police registered the FIR of Crime

No.282/2020. During investigation, a supplementary

statement under Section 161 of Cr.P.C. as well as statement

under Section 164 of Cr.P.C. of petitioner/victim were also

recorded wherein she made certain allegations against the

other respondents.

3. Further, the police inquired the matter and filed

the charge-sheet before the competent Court of Law against

all the respondents for the aforesaid offences. By way of

passing the impugned order dated 31.07.2021, the learned ASJ

did not find any ground to frame the charge against the

respondent Nos.2 and 3 whereas he found sufficient material

to frame the charges against the respondent Nos.4 and 5.

4. The learned counsel for the petitioner/victim

submits that while discharging the respondent Nos.2 and 3,

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the learned ASJ did not apply the judicial mind and the

impugned order is contrary to law. The petitioner stated

sufficient against all the accused persons, and therefore, the

impugned order is not justifiable to the petitioner/victim. The

respondent No.2 and 3 are respectively mother and sister of

prime accused Ankit Kushwaha and they have actively

participated in the alleged crime. The order passed by the

learned ASJ is contrary to spirit of Section 227 of Cr.P.C. The

learned counsel for the petitioner/victim has relied upon the

judgment passed by the Hon'ble Supreme Court in the case of

Tarun Jit Tejpal vs. State of Goa and Ors. passed in

Criminal Appeal No.1246/2019, decided on 19.08.2019 as

well as State of Bihar vs. Ramesh Singh, passed in

Criminal Appeal No.51/1977, decided on 02.08.1977

submitting that while framing the charges, the Court need not

undertake and elaborate enquiry in sifting and weighing the

material. The Court has to consider whether the evidentiary

material on record, if generally accepted, would reasonably

connect the accused with the crime. As per the

petitioner/victim's counsel, herein, the learned Court below

entered into deep merits of the case which ought not to have

Cr.R. No. 2202/2021

been done by him. The learned counsel has also drawn

attention of this Court towards the medical report of

prosecutrix/petitioner as well as her statements recorded under

Section 161 and 164 of Cr.P.C. With the aforesaid, he prays to

quash the impugned order.

5. On the contrary, learned counsel for the

respondent Nos. 2 and 3 opposes the prayer of petitioner's

counsel submitting that the prosecutrix lodged delayed FIR

and she did not disclose any fact against the respondent Nos.2

and 3 while lodging the same. The statement recorded under

Section 161 of Cr.P.C. dated 04.11.2020 does not disclose any

adversity against the aforesaid respondents. The only

allegations are against respondent No.4, who has already been

charged by the Court below along with respondent No.5. He

further submits that on 19.11.2020, while giving statement

under Section 164 of Cr.P.C., the prosecutrix improved her

version and made false allegation against other accused

persons in addition to respondent No.4. The allegations made

by the prosecutrix are not sufficient to constitute the offence

under Section 376 of IPC in furtherance of common intention

with the respondent No.4. As per the prosecutrix, the

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respondent No.2 who is sister of respondent No.4, caused

burn injury to the prosecutrix/petitioner on her hand but the

medical report of prosecutrix does not confirm that the injury

was burn injury, therefore, the Court below has rightly came

to the conclusion that no offence is made out against the

respondent No.2. As far as respondent No.3 is concerned, as

per the prosecutirx, she abused her but the

prosecutrix/petitioner did not specify when and what abuse

was made by the respondent No.3. therefore, no offence is

made out against the respondent No.3 too. With the aforesaid,

he prays to dismissal of said petition.

6. Heard both the parties and perused the case diary.

7. On hearing the submission of both the parties, the

only controversy involved in the case is that whether the

Court below has rightly exercised its power under Section 227

of Cr.P.C. while discharging the accused ?

8. To resolve the said dispute, it would be necessary

to read the relevant provision i.e. Section 227 of Cr.P.C. and

same is quoted hereinunder:-

"227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the

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Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

9. On careful reading of the aforesaid Section, it

revels that if, upon consideration of the record of the case and

the documents submitted therewith, and after hearing of the

submissions of the accused and the prosecution in this behalf,

the judge considers that there is not sufficient ground for

proceeding against the accused, he shall discharge the accused

and record his reason for so doing.

10. In the case of Union of India Vs. Prafull Kumar

Samal and another, reported in 1979 (3) SCC 4, the Hon'ble

Supreme Court formulated the following principal :-

"(1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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.

(2) 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.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally

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possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

11. In the light of above mentioned principle, I would

prefer to deal with the merits of the matter.

12. The impugned order shows that the learned ASJ

found that the only allegations against the respondent Nos.2

and 3 are respectively that the respondent No.2 caused burn

injury to the victim/petitioner and abused her whereas the

respondent No.3 only abused the victim. The learned ASJ

evaluated the material available on record and recorded his

finding that the material collected by the prosecution does not

show that when the respondent Nos.2 and 3 abused the

prosecutrix and caused such burn injury to her. He further

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mentioned that the investigation also does not show that in

what manner the respondent Nos.2 and 3 performed such act.

The learned ASJ has also recorded the finding in relation to

medical report of prosecutrix/petitioner wherein the medical

examiner does not confirm the injury was caused by burn.

13. The learned counsel for the prosecutrix/petitioner

took the ground that the learned trial Court may not enter into

deep merits of the case while framing the charges rather he

has to consider that if the material placed by the prosecution is

generally accepted, the alleged offences are made out or not ?

As per the learned counsel for the petitioner, the statement

recorded under Section 164 of Cr.P.C. is itself sufficient to

constitute the alleged offences.

14. As above noted, it has been settled by the Hon'ble

Apex Court that if two views are equally possible and the

Judge is satisfied that the evidence produced before him while

giving rise to some suspicion but not grave suspicion against

the accused, he will be fully within his right to discharge the

accused. While exercising his jurisdiction under Section 227

of the Code, the Judge cannot act merely as a Post Office or a

mouthpiece of the prosecution, but has to consider the broad

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probabilities of the case, the total effect of the evidence and

the documents produced before the Court, any basic

infirmities appearing in the case and so on.

15. On perusal of material collected by the

prosecution, there is basic infirmities are found while

describing the role of respondent Nos. 2 and 3. The allegation

regarding performing sexual intercourse is against respondent

No. 4 and there is no direct nexus of respondent Nos. 2 and 3

with the respondent No.4 pertaining to performance of alleged

crime. The investigation does not show that the respondent

Nos. 2 and 3 helped the respondent No. 4. While lodging the

FIR as well as giving the primary statement under section 161

of Cr.P.C, the prosecutrix did not utter single word against the

respondent Nos. 2 and 3, however, she stated against them in

her supplementary statement of 161 Cr.P.C and statement

recorded under section 164 of Cr.P.C. but same seems after

thought and doubtful. It is well settled by the Hon'ble apex

court that Section 227 of Cr.P.C. is enacted in the Code for the

purpose of saving the accused from unnecessary harassment

of prolonged trial.

Cr.R. No. 2202/2021

16. Therefore, this Court is of the opinion that the

impugned order is well merited and in accordance with law.

No interference of this Court is required.

17. Accordingly, this revision petition dismissed.

(Rajendra Kumar Srivastava) Judge sp Digitally signed by SAVITRI PATEL Date: 2021.12.21 16:08:34 +05'30'