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
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(
(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
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.
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
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
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
