Madhya Pradesh High Court
Sunder Singh vs The State Of Madhya Pradesh Judgement ... on 3 September, 2013
1 Cr.R. No.607 of 2013
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE SUBHASH KAKADE
CRIMINAL REVISION NO.607 OF 2013
APPLICANT: Sunder Singh S/o Pratap Singh Jat,
Age - 28 years,
Occupation Parcel Clerk,
Parcel Office Bilaspur,
R/o DR4-A, Budhwari Railway Colony,
Mahila Gatha, Bilaspur (C.G.)
Versus
RESPONDENT: State of Madhya Pradesh
through G.R.P. Bina,
District Sagar (M.P.)
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Shri Mukesh Pandey, learned Counsel for the applicant. Shri Akhilesh Shukla, learned Deputy Government Advocate for the respondent/State.
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Order reserved on : 05.07.2013 Order delivered on : 03.09.2013 This revision petition have been preferred by applicant under Section 397 and 401 of Criminal Procedure Code, 1973, here-in-after in short "the Code" against the impugned order dated 20.03.2013 passed by the First Additional Sessions Judge Khurai, District Sagar in Sessions Trial No.40/2013 by which learned trial Court framed charge against applicant punishable under Section 376 of the Indian Penal Code.
02. Facts and circumstances giving rise to this case are that the prosecutrix lodged the report on dated 05.05.2011 that the accused has committed rape on her on dated March 15, 2009 while she was traveling by train about three years ago. The explanation for the delay was given 2 Cr.R. No.607 of 2013 that the accused had given her threat to kill. Offence registered under Section 376, 420 and 506 of IPC, after due investigation, challan was filed.
03. Since the case was exclusively triable by the Court of Sessions, therefore, after committal the case to the Court of Sessions Judge, from where it was received in the learned trial Court for the trial. Learned trial Court, after taking into consideration the challan papers, framed charge against applicant under Section 376 of IPC, which is denied. Against this order, the instant revision petition has been filed.
04. Shri Mukesh Pandey, learned counsel for the applicant has submitted that the learned trial Court has not considered this aspect that the prosecutrix while traveling by train accused met her and after introduction she was subjected to sexual intercourse, such allegation themselves are showing that she had made totally false allegations. He further submitted that the learned trial Court did not consider this aspect that there is no evidence to show that the accused was traveling in the train. Coming to the star argument that 27 years aged prosecutrix has filed First Information Report after more than three years against the married employee of the railway department that too, only on presumption, applicant is impleaded in this false and baseless case therefore, impugned order is liable to be set aside.
05. Shri Akhilesh Shukla, learned Panel Lawyer for the State has opposed the revision vehemently contending that the applicant has rightly been charged, thus, the revision is liable to be dismissed.
06. Considering the rival submissions made by learned counsel for the parties and perused the record available, I am of the opinion that this revision petition deserves to be accepted.
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The scope of Section 227 of the Code
07. In Union of India vs. Pafulla Kumar Samal (1979) 3 SCC 4, the scope of section 227 of the Code was considered and after adverting to various decisions, the Apex Court enumerated the following principles:
(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 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 Judge cannot act merely as a Post office or a mouth-piece 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. 4 Cr.R. No.607 of 2013
The prosecutrix consenting party
08. Together reading the definition of rape under Section 375 and provisions of Section 90 of the I.P.C. it is crystal clear that consent given under fear or misconception of fact that "for determining whether consent given by the prosecutrix was voluntary or under a misconception of fact,"
there is no straitjacket formula and each case has to be decided, considering the evidence and surrounding circumstances of that case.
09. The prosecution came with the case that the prosecutrix boarded the train leaving for Bilaspur by Utkal Express in Coach No.S-5, at Agra Station. Two persons including accused came to her and asked to vacate the berth No.7, which she was occupying. When she introduced herself that her father late Shri Virender Kumar Dhakija was Senior Ticket Checker at Bilaspur Railway Station so accused seated near to her. During conversation accused portrayed himself unmarried and promise to marry with her. She ignored all this non-sense. During night the prosecutrix went for sleeping on Berth No.7. At that time accused who named as Jay came to her and repeated the promise of marriage and laying with her by side. At that time the train was stationed at Bena Station. During running train accused committed rape on her.
10. Therefore, the case of prosecution rests on sole testimony of unmarried prosecutrix. It transpires that the culprit gained intimacy with the prosecutrix and on the false promise to marry committed rape on her.
11. 'S' Coach in every train denotes the sleeper class having 72 berth for passengers. Berth No.7 will be in group of 8 berths. In this situation without evaluating any pros and cons of this peace of evidence it is highly improbable that rape can be performed on berth of running train. 5 Cr.R. No.607 of 2013
12. In written First Information Report version of prosecutrix was that accused had committed rape on her on Berth No.7 of sleeper coach. But, in her police statement recorded under Section 161 of the Code prosecutrix willfully exaggerated her version stating that rape was committed with her in toilet also to rule out this improbability, but of no use.
13. If the prosecutrix was not willing her natural conduct would have been to raise alarm. It is evident from contains of F.I.R. that the prosecutrix did not raise cry for help nor complaint about the incident to fellow passengers nor competent railway officer the Ticket Traveling Examiner ( T.T.E.). If the prosecutrix would not have been a consenting party, her normal conduct would have been to complain to fellow passengers or the T.T.E. who was attending the Coach S-5.
14. Whether accused had obtained the consent of the prosecutrix by misrepresentation? To observe it that accused had obtained the consent of the prosecutrix by misrepresentation which is no consent under the law nothing is on record. The accused had induced prosecutrix to have sexual intercourse with promise to marry her but subsequently refused to marry her is also not on record. Therefore, on the strength of evidence which is produced by the prosecution accepting to be true, even then no offence of sexual assault is proved as cohabitation had taken place with the consent of the prosecutrix.
15. The prosecutrix (aged 27 years on the date of occurrence) had sufficient intelligence to understand the significance and moral quality of the act she was facing. In case the prosecutrix had not been the consenting party on the date of incident she would not have allowed the accused to have sexual intercourse with her in running train, that too on berth of sleeper coach. That is the strongest 'probability factor' to show that her consent was 6 Cr.R. No.607 of 2013 not lacking. It appears that she was fully a consenting party to the act of sexual intercourse and that explains her being tight-lipped for more than 03 years. The suppression is indicative of her being in 'flagrant-delicto'.
16. After careful examining of prosecution evidence proposes to adduce to prove the guilt of the accused even if fully accepted, to ascertain whether it was a case of passive submission on the face of psychological pressure or allurement made by the accused or it was a conscious decision of the prosecutrix knowing fully the nature and consequences of the act she participated in very easily conclusion will be that it was with consent of major prosecutrix on any angle. Please see: State of M.P. V Babbu Barkare (2005)5, SCC 413.
Journey ticket not produced
17. The burden to prove this fact beyond doubt that accused was traveling on the date of incident by the Utkal Express is heavily rest upon the prosecution. The prosecution totally failed to shift this burden because, neither required journey ticket were recovered from the accused nor reservation chart is produced by the prosecution. On the other hand, Chief Enquiry-cum-Reservation Supervisor, Hazarrat Nizamuddin Railway Station issued certificate to the effect that reservation chart is not available for Utkal Express for journey date 15.03.2009.
18. Prosecution did not collected required journey ticket from the prosecutrix also then, question arises how it will be proved by the prosecution that the prosecutrix was traveling in Utkal Express?
Need of test Identification Parade in sexual offence
19. Where in a rape case from the evidence of prosecution on record, it was clear that the culprit was not named clearly and accurately in 7 Cr.R. No.607 of 2013 the F.I.R. and he was living at a place miles away from the house of the prosecutrix. In such a fact situation T.I. Parade is needed to fix the identify of the culprit.
20. The culprit was not known to the prosecutrix, therefore, she mentioned his name as Jai in FIR that too, after more than three years. No identification parade held.
21. One unknown person committed rape on a 27 years old unmarried woman when she was travelling in a train but, no T.I. Parade was held and given cell phone number found third person's. Now she will recognize the stranger culprit in trial Court while she will be examined after lapse of more than four years, on the basis of this dock identification the culprit could not be convicted.
22. Mentioning of Cell Phone No.09752114264 in written First Information Report is also at all not evidence hence, not of any use. It is pertinent to mention here that the owner of this sim card number is a third person Suresh Kumar so, it is also improbable that how accused will be connected on the basis of this cell phone number with the crime?
Delayed F.I.R. in sexual offences 23 The incident were happened on 15.03.2009 in train Utkal Express and matter was reported after delay of more than 3 years on dated 15.05.2012 by the prosecutrix at Police Station GRP Bena, District Sagar.
24. In State of Himachal Pradesh vs. Prem Singh, AIR 2009 SC 1010 = 2009 AIR SCW 105, the Supreme Court considered the issue and observed as under:
8 Cr.R. No.607 of 2013
"So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault cannot be equated with the case in evolving other offence."
Please also see, Satpal Singh vs. State of Haryana, 2010 (4) CriLJ 4283 (SC).
25. In a rape case the prosecutrix remains worried about her future. She remains in traumatic State of mind. The family of the victim generally shows reluctance to go to the police station because of society's attitude to words such a woman. It casts doubts and shame upon her rather than comfort and sympathies with her. Family remains concern about its honour and reputation of the prosecutrix. After only having a cool thought it is possible for the family to lodge a complaint in sexual offence. Vide Karnel Sing vs. State of M.P., AIR 1995 SC 2472 = 1995 AIR SCW 3644; and State of Punjab vs. Gurmeet Singh & Ors., AIR 1996 SC 1393 = 1996 AIR SCW 998.
26. Any unmarried girl on account of her bashfulness and the circumstance that not only her own honour but that of her family was at stake, would have been extremely reluctant and loath to disclose to the police, her traumatic experience of being raped. It is only after efflux of time, when she is able to get over a part of her trauma, will she think of lodging the F.I.R. Therefore, no mathematical time limit in lodging an F.I.R. can be fixed in Cases of rape. Courts in such Cases should adapt a realistic approach rather than one which is unimaginative and theoretical.
27. The FIR is not a be-all and end-all of the matter, though it is undoubtedly, a very important document. F.I.R. in criminal Case is an 9 Cr.R. No.607 of 2013 extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial.
28. It is well settled by the Supreme Court that a mere delay itself cannot be a ground to disbelieve the entire case of the prosecution. It is only in such of those cases where the delay is enormous and the same remains unexplained and that there are also circumstances to suspect the genuineness of the contents of the FIR, the Court can doubt the case of the prosecution and then discard the case of the prosecution.
29. Mere delay in thus not fatal to the prosecution. The effect of delay is to be understood in the light of the plausibility of the explanation forthcoming and must depend for consideration on all the facts and circumstances of a given Case. Apren Joseph v. State of Kerala, AIR 1973 SC 1: 1973 CrLJ 185.
30. When the explanation for delay in giving the F.I.R. is satisfactory the delay is not significante. Lalai v. State of U.P. AIR 1974 SC 2118 : 1974 CrLJ 1393; Jadunath Singh v. State of U.P., AIR 1972 SC 116 : 1972 CrLJ 29.
31. When delay in lodging F.I.R. is not deliberate, it is of no consequence. Saktu v. State of U.P., AIR 1973 SC 760 : 1973 CrLJ 599 :
(1973) 1 SCC 202 : 1973 SCC (Cr) 307.
32. No duration of time in the abstract can be fixed as reasonable for giving information, the question of reasonable time being a matter for determination by the Court in each Case. Ram v. State of U.P., AIR 1974 SC 606 : 1974 CrLJ 479.
33. The delay of one or two days in lodging the FIR may be bonafide, reasonable and justified. This is naturally in view of the social 10 Cr.R. No.607 of 2013 conditions prevailing in India where a victim of rape case has to think seriously before giving the information to the Police for fear of onslaught of social stigma that may haunt her for life. But, the delay for more than three years in lodging the F.I.R. in any case cannot be bonafide, reasonable and justified, on the other hand this delay is fatal for the prosecution.
34. The Supreme Court in case of Dilawar Singh vs. State of Delhi, 2007 CriLJ 4709 (SC) held that - in criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.
Medical evidence
35. Prosecutrix was medically examined on 15.05.2012 at District Hospital Sagar by Dr. Yogmaya. What will be the evidentarory value of this evidence when the prosecution medically examined prosecutrix after lapse of more than 3 years, in case of rape? it can be very well presumed by any prudent person. Resultantly, Doctor written the answer in her report that she did not find any injury either external or internal of the person of the prosecutrix, therefore, no definite opinion can be given regarding resent rape on the prosecutrix.
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36. Applicant also medically examined by Dr. O.P. Rai on 06.12.2012 at District Hospital Sagar, which is a sheer formality rather, waste product of valuable powers of investigation agency.
37. Statements of Smt. B. Karmakar, Smt. Ushabai were recorded by the Investigation Officer, during which these railway employees nothing stated against the applicant. On the other hand, they have supported by narrating this fact that railway employee applicant is saying that he is being involved by unknown lady in false case of rape.
Heinous offence vs false and frivolous cases
38. The Supreme Court in case of Rang Bahadur Singh v State of U.P. (2000) 3 SCC 454 : 2000 CrLJ 1718, has observed that there is no doubt about it that the rape is a heinous offence not only against the entire society. While remembering such point, the court must also guard against false and frivolous cases. A criminal court cannot afford to deprive liberty of a person, perhaps life only liberty, without having at least a reasonable level of certainty that the accused was the real culprit. (Emphasis given) When accused should be discharged
39. Section 227 of the Code provides that 'the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused'. The word 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible. 12 Cr.R. No.607 of 2013
40. The Supreme Court has observed that Section 227 of the Code has made a beneficent provision to save the accused from prolonged harassment which is necessary concomitant of a protracted criminal trial. Please see : Kewal Krishan v. Suraj Bhan and another, AIR 1980 SC 1780: 1980 CrLJ 1271; State v. Ramesh AIR 1977 SC 2018:1977 CrLJ 1606.
41. If the evidence of the prosecution cannot show that the accused committed the offence, the accused should be discharged. Please see Ramesh Singh case (supra) and also see : Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 : 1979 CrLJ 154 and Satish Mehra v Delhi Adminstration (1996) 9 SCC 766: (1996) 3 Crimes 85 (SC).
42. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Art.21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself have placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken favouring the accused, the court shall not put the accused to harassment by asking him to face a trial. Please see : State of Maharashtra v. Som Nath (1996) 4 SCC 659. In the case at hand, if the Court allowed to asking applicant face the trial on above discussed evidence, definitely it will amount to put the applicant for harassment.
43. Legal position that emerges from above discussed judicial pronouncements of the Apex Court, there can not be any doubt that the 13 Cr.R. No.607 of 2013 charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of applicant, even if fully accepted before, it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that applicant committed the offence for which he is charged.
44. After examining the documentary as well as the oral evidence which the prosecutor proposes to adduce to prove the guilt of applicant, even if fully accepted before, it is challenged by cross examination or rebutted by defence evidence, if any, is not showing that applicant committed the offence punishable under Section 376 of the I.P.C. for which he is charged, because, (i) it is highly improbable that rape can be performed on berth of running train, (ii) on the other hand, no offence of sexual assault is proved as cohabitation had taken with the consent of the prosecutrix, (iii) required journey tickets not produced, (iv) there test identification parade was must, but not held, (v) evidentory value of medical evidence is zero and top of these (vi) F.I.R. lodged after delay of more than three years, that too, without explaining bonafide and reasonable justification which is fatal for the prosecution case.
45. In view of above, the learned trial Court committed a mistake of law in framing charge against applicant therefore, this revision petition succeeds and impugned order dated 20.03.2013 passed by learned First Additional Sessions Judge Khurai, District Sagar framing charge punishable under Section 376 of the Indian Penal Code against applicant Sunder Singh is quashed.
Revision allowed.
(Subhash Kakade) Judge AK/