State vs Sh Mohd @ Kalu Khan And Ors
2022 Latest Caselaw 6565 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 87/2002

State

----Petitioner Versus Sh Mohd @ Kalu Khan And Ors

----Respondent

For Petitioner(s) : Mr. Mukhtiyar Khan, PP For Respondent(s) : Mr. Vineet Jain, Senior Advocate assisted by Mr. Praveen Vyas

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

06/05/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. This criminal revision petition under Section 397 and 401

Cr.P.C. has been preferred by the petitioner-State against the

order dated 06.10.2001 passed by the learned Special Judge, SC/

ST (Prevention of Atrocities) Act Cases, Pratapgarh in Special

Sessions Case No.83/2001, whereby the present accused-

respondents were discharged of the offences under Sections 363,

366, 120-B & 376 IPC and Section 3(x2) of the SC/ST (Prevention

of Atrocities) Act.

3. Learned Public Prosecutor appearing on behalf of the

petitioner-State submits that on 04.08.2001 (in the morning), one

Gheesalal, brother of the prosecutrix, lodged a first information

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report before the Police Station, Dholapani, alleging therein, that

his sister (prosecutrix), who was a married lady, came to his

house; thereafter, very often, the present accused-respondents

used to came to the house of Gheesalal; such conduct of the

accused-respondents was repeatedly resisted and opposed by

Gheesalal, but despite that, the accused-respondents kept on

visiting his house.

3.1 Learned Public Prosecutor further submits that as per the

aforementioned report, on 30.07.2001 (at about 09:00 a.m.) i.e.

5-7 days prior to lodging of the aforementioned report, the sister

(prosecutrix) of Gheesalal was enticed away by the present

accused-respondents on false pretense, with a clear intention to

get her married with accused-respondent Mohd. @ Kalu Khan;

thereafter, her whereabouts could not be known for a long time.

3.2 Learned Public Prosecutor also submits that upon the

aforementioned report, a case was registered against the accused-

respondents for the offences under Sections 363 and 366 IPC;

however, only on 04.08.2001 (in the afternoon), the prosecutrix

was recovered, at Aasind, District Bhilwara.

3.3 Learned Public Prosecutor further submits that the record

clearly reveals that the present accused-respondents exerted

immense pressure upon the prosecutrix to get her married to the

present accused-respondent Mohd. @ Kalu Khan, despite her

being already married; not only this, the said accused-respondent

also tried to outrage her modesty, at one point of time, but for

some reason and strong resistance on the part of the prosecutrix,

such efforts of the accused-respondent could not culminate into

success. However, as per the learned Public Prosecutor, at a later

point of time, during the course of her illegal enticement and

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abduction, she was subjected to forcible sexual intercourse by the

present accused-Mohd. @ Kalu Khan, in a Lodge at Bhilwara.

Learned Public Prosecutor also submits that as per the report, the

age of the prosecutrix, at the relevant time, was 15-16 years.

3.4 Learned Public Prosecutor also submits that the accused-

respondents were presented before the learned Judicial

Magistrate, First Class, Badi Sadri, for cognizance in relation to the

charges for the offences under Sections 363, 366, 376 & 120-B

IPC and Section 3(12) of the SC/ST Act; whereupon the learned

Judicial Magistrate took cognizance against the present accused-

respondents for the aforementioned offences vide order dated

24.09.2001, and rightly so; however, since the case was involving

the offence under the SC/ST Act, the matter was committed to the

Court of Sessions, Pratapgarh vide the same order, wherefrom the

case was transferred to the learned Special Judge, SC/ST

(Prevention of Atrocities) Act Cases, Pratapgarh (trial court), for

the necessary adjudication.

3.5 Learned Public Prosecutor however, submits that the learned

trial court, instead of framing the charges against the accused-

respondents, discharged them of all the charges levelled against

them. Thus, the learned Public Prosecutor submits that the

learned trial has passed the impugned order of discharge in favour

of the accused-respondents without due appreciation of the

evidence placed on record before it and also without taking into

due consideration the overall facts and circumstances of the case.

Hence, learned Public Prosecutor submits that the impugned order

of discharge passed by the learned trial court deserves to be

quashed and set aside, and the matter deserves to be remanded

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back to the learned trial court for framing charges against the

present accused-respondents for the alleged offences.

4. On the other hand, while opposing the aforesaid submissions

made on behalf of the petitioner-State, learned Senior Counsel Mr.

Vineet Jain, assisted by Mr. Praveen Vyas appearing on behalf of

the accused-respondents, at the outset, submits that regarding

the age of the prosecutrix, the prosecution has failed to produce

before the learned trial court, any proof, so as to substantiate the

claim of the prosecution regarding the prosecutrix being 15-16

years of age; and thus, the said aspect, amongst others, has been

clearly and effectively dealt with by the learned trial court, while

passing the impugned order of discharge, and rightly so; this is

more so when, as per the medical opinion, the age of the

prosecutix was 17-18 years, at the relevant time.

4.1 Learned Senior Counsel further submits that the version, as

put forth by the prosecutrix in the present case, is that she was

enticed away by the accused-respondents on false pretense, and

during the course of the alleged enticement, she was taken to

Chittorgarh and was indulged in some documentation in a court

situated thereat; she also put her thumb impressions on certain

documents; on 2-3 blank papers also, her thumb impressions

were taken.

4.2 Learned Senior Counsel also submits that the prosecutrix has

also stated that from the court at Chittorgarh, she was taken by

the accused-Mohd. @ Kalu Khan to Bhilwara, and in a Lodge

thereat, the prosecutrix was subjected to forcible sexual

intercourse by the said accused-respondent; whereafter, she was

taken to Aasind by the accused-respondent Mohd. @ Kalu, and

while pressuring the prosecutrix to stay with him thereat, she was

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again subjected to forcible sexual intercourse, under the threat of

dire consequences.

4.2.1 . Learned Senior Counsel also submits that the whole version

of the prosecutrix, as above, itself casts a doubt upon the

prosecution story, more particularly, when during the period of the

alleged enticement and abduction, she travelled with the accused-

respondents in a public transport; in course of which, despite

having several opportunities, the prosecutrix never protested

against the accused-respondents, nor raised any hue and cry, so

as to project and resist the alleged illegal act of the accused-

respondents. Thus, as per learned Senior Counsel, such a clear

non-resistance, at any point of time, on the part of the

prosecutrix, is not only belies her own version, but also clearly

casts a serious doubt upon the case of the prosecution.

4.3 Learned Senior Counsel thus submits that the facts and

material placed on record are sufficient to show that no forcible

sexual intercourse, under the garb of any threat, was committed

by the accused-respondent, rather it is a case of consensual

relationship, and the same clearly strikes at the substratum of the

prosecution case. Learned Senior Counsel therefore, submits that

the impugned order was rightly passed by the learned trial court,

after considering all the relevant aspects and evidence placed on

record before it, and thus, the same may not be interfered with by

this Court.

4.4 Learned Senior Counsel however, submits that apart from

the aforementioned backdrop, at the stage of framing of charges,

a detailed analysis or a roving enquiry is not required.

4.5 Learned Senior Counsel further harped upon the word

"presumption" occurring in Section 228 Cr.P.C. stating that if the

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Judge is of the opinion that a ground for presumption of the

alleged offence against the accused lies after consideration and

hearing of the case, then charges can be framed against such

accused.

5. After hearing learned counsel for the parties as well as

perusing the record of the case, this Court finds that the

impugned order passed by the learned trial court clearly reveals

due appreciation of the evidence placed on record before it; the

same also clearly indicates consideration of the overall facts and

circumstances of the present case, coupled with due consideration

of each and every aspect relevant for the purpose of effective

adjudication of the case, at the stage of framing of charges.

6. This Court further observes that at the stage of framing of

charge, the learned court below is not required to conduct a

meticulous appreciation of evidence or a roving inquiry into the

same, as was laid down by the Hon'ble Apex Court in the

judgments rendered in Ashish Chadha v. Asha Kumari and Ors

(2012) 1 SCC 680 and State of NCT of Delhi and Ors. vs.

Shiv Charan Bansal and Ors. (2020) 2 SCC 290.

7. This Court is also conscious of the judgment rendered by the

Hon'ble Apex Court in State of Maharashtra and Ors. Vs. Som

Nath Thapa (1996) 4 SCC 659, wherein it was observed that a

prima facie test was to be applied at the stage of framing of

charge, and the probative value of the materials on record cannot

be gone into. The meaning of the word "presume" was also

analyzed and it was held to mean that unless evidence to the

contrary is forthcoming.

8. In light of the aforesaid observations, this Court finds that

the impugned order of discharge passed by the learned trial court

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does not suffer from any legal infirmity, so as to warrant any

interference by this Court, at this stage.

9. Consequently, the present petition is dismissed. All pending

applications stand disposed of. Record of the learned court below

be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

43-SKant/-

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