1. Heard Sri Gopal Mishra, learned counsel for the revisionists, Sri Attreya Dutt Mishra, learned A.G.A. appearing for the State and perused the record.
2. This criminal revision has been preferred by the revisionists against the judgment and order dated 20.07.2019 passed by Additional District & Sessions Judge, VI, Gautam Buddha Nagar in Sessions Trial No. 431 of 2018 (State Vs. Aviral & Others) whereby application 8-kha under section 227 Cr.P.C. has been rejected.
3. It is argued by the learned counsel for the revisionist that no offence under section 376 IPC as well as of other sections are made out and the Learned trial court has failed to appreciate the fact that opposite party no. 2 herself had come to the house of the revisionist to stay there and upon being refused to allow her to stay, she would refuse to leave. It has also not been appreciated that in her statement under sections 164 Cr. P.C. she herself has not made any statement that she was raped by the accused revisionist and yet Section 376 IPC has been imposed. The prosecution story would reveal that on the one hand the opposite party no. 2 is claiming that she herself went to reside with revisionist no. 1 who was known to her while on the other in the F.I.R. she has not even named the revisionist nos. 1 and 2. In FIR she has clearly stated that she had gone to stay with the revisionist no. 1 after taking consent of her parents but the investigating officer has not even recorded the statement of her parents. There are serious contradictions in the F.I.R. and the statement made by the victim under sections 161 and 164 Cr. P.C.. The opposite party no. 2 has made a statement under section 164 Cr. P.C. that she had called the police at 100 number from railway station New Delhi, but no information about the same was given by her to the investigating officer nor did the investigating officer collect any evidence in this regard during entire investigation. The malafide of the opposite party no. 2 would be clear from the fact that in the F.I.R. she has given her address as that of the revisionist no. 1. The present prosecution has been initiated only in order to blackmail the revisionist no. 1 and his family which would be apparent from the fact that when the real Bua and real brother of the opposite party no. 2 were residing in Delhi/NCR, even then she preferred to stay in the house of revisionist no. 1 of her own free will with some oblique motives to implicate the revisionists. It is the admitted case of the opposite party no. 2 that revisionist no. 1 had requested the opposite party no. 2 to go out from his house but she refused. The medical examination report does not substantiate any offence under section 376 IPC. Therefore it is argued that the trial court has committed grave error in rejecting the discharge application by forcing the revisionist to face the trial. The impugned order is a cryptic one which does not disclose any reasons. As far as revisionist no. 2 is concerned he was neither relative of opposite party no. 2 nor had he any connection in the present matter and was residing separate in his hostel and was pursuing studies. He has been solely implicated in this false case when opposite party no. 2 refused to go away from the house of the revisionist no. 1, the revisionist no. 2 was also called upon by the revisionist no. 1 for moral support only. The impugned order is illegal perverse and against the provisions of law as interpreted by the Hon'ble Supreme Court in various cases and the same deserves to be set aside.
4. The learned counsel for the revisionists has taken the court through the F.I.R. wherein it is recorded by opposite party no. 2 that she was a resident of District Chandauli and was doing B.Tec. from Lucknow. She had come to the house of his acquaintance i.e. revisionist no. 1, regarding which she had also told her parents and they permitted her to do so for doing training. The said revisionist no. 1 had also talked to her parents but about 2 days ago he started threatening her. There was another boy i.e. revisionist no. 2, who was son of her Bua and both of them together had beaten her and told her to leave their house but she refused, whereon she was threatened. The reason behind her being expelled was that she should leave the house before arrival of their parents. They had taken away her phone and was confined to a room and in highly drunken condition they came in her room and ill treated her when she was alone and while defending herself she received an abrasion as she was tightly caught. The son of her Bua tried to forcibly molest her, whereon she screamed loudly, thereafter both of them had closed her in a room and left from there. She could not have done anything there, therefore till the morning she remained there and again both of them came there in the morning and started beating her and did a lot of things and thereafter they had thrown out her belongings and expelled her from the house. She kept crying alone and had to go out along with her belongings but after having come out of the house she realized that her phone was left there and thereafter, leaving her belongings there only, she went back to their house again, then she was again beaten and her wallet was snatched away. Thereafter she came back from there and by Auto started leaving for Parichauk, then both of them came there from behind and had thrown her wallet inside the Auto, when she looked into it, she found that her phone and the money and a golden chain kept in the wallet were missing. She came to the Delhi railway station and lodged the complaint.
5. Thereafter the learned counsel for the revisionist had taken the court through her statement under sections 164 Cr. P.C. in which she has stated that she had come to the house of her Mausi last month. Her aunt's house was in Greater Noida. She knew revisionist no. 1/Aviral who was son of sister of her aunt for last 5 - 6 years as both of them were doing B.Tech from Lucknow. She had told her home folks that she was going to Noida for training purpose and till she would get a job she would stay in the house of her Mausi. Her brother was also staying for last 2 months in Noida where he had taken a room. She had started living in the house of her Mausi. She continued to enquire about training which was to begin from 30/06/2017. Aviral told her that she should come to his house. She declined, then he stated that his parents were also to come here yet she refused and stated that first he should arrange her meeting with his parents. On this, altercation followed between them and Aviral went away. With Aviral was also staying the son of her Bua, Animesh. Both of them talked to each other and came together in her room in the night at about 12 - 1 AM in drunken state. When she enquired as to what had happened, they started abusing her and gave her a ticket which was of 1st. They would not stop and started ill treating her and at that time she was alone. They started using force against her and she was beaten and an attempt to rape her was also made. Sri screamed loudly, whereafter both of them fled from there closing the door, having taken away her phone. She kept weeping because of fear and again when in the morning both of them came, they started abusing her. She told them that she would leave but both of them had thrown her belongings out, whereafter she left the place after taking her belongings. After having left the place she realized that her phone was left there only, to take which she went back but the same was not given and her purse was also snatched away. Thereafter she returned and engaged an Auto. The accused came from behind and had thrown her empty purse into the Auto, whereafter she made a phone call at 100 number and thereafter she reached Lucknow and got a report lodged at Lucknow police station and also came to meet SSP NOIDA .
6. After having taken the court through the above statements it was vehemently argued by the learned counsel for the revisionists that the said statement would suggest that there was no evidence on record constituting an offence of rape and that the accused revisionists have been falsely implicated by the opposite party no. 2 because it is very much clear from the above statements that the accused were consistently opposing her stay in their house but the victim/opposite party no. 2 was insisting upon staying there despite the fact that her own brother was staying in the same city which clearly suggests that she has fabricated this false story only to falsely implicate the revisionists. No such occurrence has ever happened. The revisionists are students of engineering and come from decent family. Therefore the impugned order dated 20/07/2019 rejecting the discharge application and directing the accused to appear before court for framing of charge, be set aside.
7. The learned counsel for the applicant by filing written argument has placed reliance on Bhajan Lal's case and it has been argued that the allegations made in the F.I.R. and the statement under sections 164 Cr. P.C. are absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. He has placed reliance upon Vikram Jauhar vs State of Uttar Pradesh and another, 2019 lawsuit (SC) 1123, in which it is held that while considering the discharge application, the court is required to exercise its judicial mind to determine whether a case for trial has been made out or not. In this case the allegation was that appellant with 2 or 3 other unknown persons, one of whom was holding a revolver, came to the complainant's house and abused him in filthy language and attempted to assault him and when some neighbours arrived there, the appellant and the other persons accompanying him fled the spot. It was held that the allegation taken on the face of it does not satisfy the ingredients of Section 504 and 506 IPC as the intentional insult must be of such a great degree that it should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients. In this case the allegation was only that the appellant abused the complainant, hence the ingredients of Section 504 and 506 were not found made out from the complaint filed by the complainant and it was held that the courts below committed error in rejecting the application of discharge filed by the Appellant.
8. The other case law relied upon by the learned counsel the applicant is Dilawar Babu vs State of Maharastra, 2002 lawsuit (SC) 12, in which it is held that even for the limited purpose of framing charge the evidence can be sifted to ascertain as to whether charge needs to be framed and that charge can be famed even when the suspicion is grave enough. Where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge and to proceed with the trial. By and large, if two views are equally possible and judge is satisfied that the evidence produced before him, gives rise to some suspicion which was not grave one, he will be fully justified to discharge the accused. In exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the judge cannot act merely as a post office or as a mouthpiece of the prosecution but has to consider broad probabilities of the case, the total effect of the evidence and the documents produced before the court, but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting trial.
9. I do not have any quarrel with the above principle of law but even if the above laid principles are applied in the present case, I am convinced that on the basis of the allegation made by the victim against the accused there arises grave suspicion in respect of the victim having been attempted to be raped as was stated by her in her statement given under Section 164 Cr. P.C. and it is also true that the trial court was not required to make a roving enquiry regarding commission of the offence. So far as the inherent improbability of the statement of the victim is concerned, it does not appear to be improbable at all.
10. The AGA vehemently opposed the quashing of the impugned order and has argued that there is no infirmity in the impugned order as there is sufficient evidence on record to constitute an offence under section 376 read with Section 511 IPC apart from other sections mentioned above and it is wrong to say that the accused - revisionists were summoned by the trial court to face trial under sections 376 IPC, rather they been summoned to face trial under sections 376 read with Section 511 IPC along with other sections. The main emphasis was laid by the Learned AGA on the statement given by the victim that she was tried to be thrown out of the house of the revisionist only because their parents were arriving and that it cannot be ignored that the accused might have molested the victim as she has stated that she was tried to be raped by them. The said statement cannot be disbelieved at inceptional stage of the case/trial.
11. I have gone through the impugned order. It is recorded in it that after registration of the F.I.R., investigation was conducted and the evidence was gathered by the investigating officer, on the basis of which charge sheet has been submitted against the accused/ revisionists, upon which cognizance has been taken by the learned Magistrate. The present matter relates to an effort having been made by the accused/revisionists of making attempt to commit rape upon the opposite party no. 2. The arguments which have been raised before the trial court relate to the factual aspect of the case, finding where on would be possible only after trial is conducted by adducing evidence of both the sides and its appreciation is made. The revisionists/accused would get sufficient opportunity at the stage of evidence to cross-examine the said witness/opposite party no. 2 and also to adduce evidence in defence and therefore at this stage it cannot be held that no such offence was committed and accordingly the application 8 Kha was dismissed which was moved for discharging the accused/revisionist of charges which were to be framed against them.
12. It would be pertinent to refer to the position of law in respect of framing of charge. In Amit Kapoor vs Ramesh Chander and another, (2012) 9 Supreme Court Cases 460, the Hon'ble Apex court has laid down that the framing of charge is an exercise of jurisdiction by the trial court in terms of Section 228 Cr. P.C., unless the accused is discharged under Section 227 Cr.P.C.. Under both the sections 227 and 228 Cr.P.C., the court is required to consider the "record of the case" and the documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section concerned exist, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sign quo non for exercise of such jurisdiction. It may even be weaker than prima-facie case. At the initial stage of framing of charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at this stage. There is a fine distinction between the language of sections 227 and 228 Cr. P.C.. Section 227 is the expression of a definite opinion and judgment of the court while Section 228 is tentative. Thus, to say that at this stage of framing of charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 Cr. P.C.. Framing of charge is the first major step in a criminal trial where the courts are expected to apply its mind to the entire record and documents placed before it. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of the charge is a major event where the court considers the possibility of discharging the accused of the offence with which he has been charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case, where considering the record of the case and documents submitted before it, the trial court finds that no offence is made out and there is a legal bar to such prosecution under the provisions of Cr. P.C. or any other law for the time being in force and there is a bar and there exists no ground to proceed against the accused, the court may discharge the accused. Framing of charge is a kind of tentative view that the trial court forms in terms of Section 228 which is subject to final culmination of the proceedings. The legislature in its wisdom has used the expression "there is ground for presuming that the accused has committed an offence". This has an inbuilt element of presumption once the ingredients of an offence with reference to the allegations made are satisfied, the court would not doubt the case of prosecution unduly and extend its jurisdiction to quash the charge in haste. The meaning of the word "presumed" means "to believe or accept upon probable evidence", "to take as proved until evidence to the contrary is forthcoming". In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are examined by the defence, incriminating material and evidence is put to the accused in terms of Section 313 Cr. P.C. and then the accused is provided an opportunity to lead defence if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion in delivering its judgment.
13. If the above test in the present case is applied as to whether the impugned order is a defective one on the anvil of law which has been cited above, I come to the conclusion that there is no infirmity in the impugned order because the fact as to whether the accused/revisionist actually tried to molest the victim/attempted to commit rape upon her,/had abused and beaten her as has been stated by the victim in her statement under Section 164 Cr. P.C. as well as, as has been stated by her in F.I.R., is a subject matter of evidence because no opinion can be given on these aspects till both the parties have adduced evidence before trial court. A perusal of the charge- sheet would reveal that there are as many as 8 witnesses whose statements have been recorded by the investigating officer in this case, out of whom the attention is drawn by the learned counsel for the revisionist to the statement of the victim only under Section 164 Cr. P.C. as well as FIR which have been cited above and not to any other witness which include three witnesses of fact and one Doctor apart from the formal witnesses. The copies of the statements of these witnesses have not been annexed with the present revision, therefore this court does not have opportunity to go through those statements and form an opinion as to whether there was no evidence on record against the accused revisionists constituting offence as mentioned above or not.
14. Accordingly I do not find any force in the present revision which needs to be dismissed and is accordingly dismissed.
Order Date :- 28.08.2019 A. P. Pandey.