The revisionist, Sachin @ Sachinder @ Satyendra has preferred this revision against the impugned judgment and order dated 4.1.2013 passed by Ist Additional District Judge (Ex-Cadre), Kushi Nagar, Padrauna, in S.T. No. 208/2012 (State Vs. Aslam and others) under Sections 363, 366, 376, 120B IPC, P.S. Kotwali Hata, District Kushi Nagar whereby the discharge application of revisionist has been rejected.
Brief facts giving rise to the present revision is that an FIR has been lodged by the informant, Sri Janardan Yadav on 31.12.2011 as Case Crime No. 1099 of 2011 under Sections 363, 366 IPC, P.S. Kotwali, Hata, District Kushi Nagar alleging therein that on 26.12.2011 his daughter namely Sindhu aged about 16 years was gone to the school of village and when she was not returned from the school till evening, it is brought to the notice that she has been misguided by accused on account of which she fled away with the co-accused Ram Niwas. Thereafter co-accused Ram Niwas and the alleged victim Sindhu have filed Writ Petition No. 7531 of 2012 (Ram Niwas Vs. State of U.P.) in which the victim, Sindhu claims to have voluntarily married with Ram Niwas out of her own sweet will and is living with him without any coercion and compulsion, which was disposed of vide order dated 20.6.2012 passed by this court staying the arrest of the petitioner till disposal of the proceedings before the concerned CJM.
After investigation charge sheet dated 21.9.2012 was submitted against the revisionist under Sections 363, 366, 376 and 120B IPC by the police. Revisionist has moved the application under Section 227 Cr.P.C. for discharge on the ground that no offence under Sections 363, 366, 376 and 120B IPC is disclosed and in absence of necessary ingredients, no offence is made out even if entire prosecution evidence is taken at its face value. The statement of alleged victim, Sindhu has also been recorded under Section 164 Cr.P.C. in which she has stated to live with her husband out of her own sweet will. Learned Additional District Sessions Judge after hearing the application rejected the application on 4.1.2013. Feeling aggrieved, the revisionist has filed this revision.
I have heard learned counsel for the revisionist, learned AGA and perused the record.
Learned counsel for the revisionist has submitted that charge sheet was illegally submitted against the applicant under Sections 363, 366, 376 and 120B IPC whilst in absence of the necessary ingredients no offence is made out. It is further submitted that according to medical report the age of alleged victim, Sindhu is 17.1/2 years, which goes to show that she is likely to be major and free to live with her husband on her sweet and free will. It is also submitted that the statement of alleged victim, Sindhu under Section 164 Cr.P.C. was recorded from which it is evident that she was married with the co-accused Ram Niwas and ready to live with him as wife and husband. The court below without applying its judicial mind and without considering the facts and evidence on record had illegally taken cognizance.
Per contra, learned AGA contends that in the medical examination it is opined that victim is minor and 17 years old. Her consent is not material and there is a prima facie evident against the revisionist to proceed with the case.
In this case, main point of determination is that whether there is a material to sustain the prosecution of the revisionist and impugned order does suffer from illegality?
Before adverting the claim of the parties, it is useful to quote Section 227 Cr.P.C. which runs as follows:
" 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 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."
In the instant case, learned trial court has rejected the discharge application on 4.1.2013 holding that investigating officer after collecting the credible evidence has submitted the charge sheet in the offence which is of heinous in nature. There is no ground to discharge the revisionist except that the witness will be examined and thereafter it will be decided that revisionist is guilty or not. Since the victim was minor. Her statement recorded under Section 164 Cr.P.C. with respect to consent of the victim is inadmissible and is not material. In the medical examination, right epyphisis of right elbow joint and right knee joint are fused but epyphisis of wrist joint are not fused. The epyphisis of clavical also not found fused which suggest that the age of the victim is between 16 and 17 years.
In the case of Raj Kumar Verma @ Raju Vs. State of (Govt. of NCT) of Delhi (Criminal Appeal No. 945 of 2013), it has been held by the Delhi High Court that since the consent of the minor girl is immaterial. The same cannot be treated as mitigating circumstances so as to award of sentence lesser then seven years rigorous imprisonment.
In the case of Ladhai Ram Pyare Vs. State of U.P. (Criminal Appeal No. 1507 of 1980) another Bench of this Court held that since the victim was minor, her consent was totally immaterial and therefore, does not demerit the conviction of the appellant. Being minor, victim consent was of no consequences as she could not have consented to carnal intercourse at all.
In the case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another (2008) 2 SCC 561, the Hon'ble Apex Court in paragraph 11 of the judgment held as under:
"It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
and the Hon'ble Apex Court in the case of Rajbir Singh Vs. State of U.P. and others [2006 (55) ACC 308 SC] held that charge can be framed even on the basis of the grave suspicious circumstances.
A three Judges Bench of Hon'ble Supreme Court in the case of State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659 after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned (ii) Sections 239 and 240 relatable to trial of warrant cases, and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus:
"32 ............. If on the basis of materials on record , a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the courts were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into, the materials brought on record by the prosecution has to be accepted as true at that stage."
In State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338, the Hon'ble Supreme court held in paragraph 7 as under:
"7.The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."
In the case of State of Orissa Vs. Debendra Nath Padhi, (2005)1 SCC 568, Hon'ble Supreme court while considering the question whether the trial court can at the time of framing of charges consider the material filed by the accused, answered in negative in following words:
"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced...... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It is only 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 to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."
Hon'ble Supreme Court in Sajjan Kumar Vs. Central Bureau of Investigation, (2010)9 SCC, held in paragraph 24 of the judgement as under:
"At the stage of framing of charge under section 228 Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other."
In the instant case, the allegations against the revisionist are substantiated by the evidence forming prima facie case against them to proceed with the case and there is a sufficient ground for presuming that accused have committed the offence as alleged.
In view of the above discussion, legality, propriety or correctness of the order, the revision being lack of merit, is liable to be dismissed.
The revision is dismissed, accordingly.
The case is too old and efforts are being made to delay the disposal of the case, therefore, it is directed that the trial be expedited.
There is no order for cost.
Order Date :- 27.10.2016 AK