Rajasthan High Court - Jodhpur
Balmukand vs State on 12 December, 2012
Author: Sandeep Mehta
Bench: Sandeep Mehta
S.B.Cr.Misc.Petition No.2027/2011
(Balmukund Vs. State of Rajasthan & Anr.)
1/8
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
S.B. CRIMINAL MISC. PETITION NO.2027/2011 Balmukund Vs. State of Rajasthan & Anr.
Date of judgment : 12.12.2012 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. Mridul Jain, for the petitioner.
Mr. K.K.Rawal, P.P. Mr. Rajendra Charan, for the respondent No.2.
<><><> The instant misc. petition has been filed by the petitioner against the order dated 23.10.2010 passed by the learned Judicial Magistrate No.2, Sriganganagar in connection with F.R.No.931/2010 arising out of FIR No.110/2010 of the Police Station Chunavad, District Sriganganagar taking cognizance against the petitioner for the offences under Sections 363, 368 and 376 IPC and Section 3 of the SC/ST (Prevention of Atrocities) Act and summoning the petitioner by warrant of arrest; as affirmed in revision by the learned Sessions Judge, Sriganganagar by his order dated 24.9.2011.
Succinctly stated the facts of the case are that the respondent No.2 prosecutrix Mst.'N' aged 25 years submitted a written report to the Superintendent of Police, Sriganganagar S.B.Cr.Misc.Petition No.2027/2011 (Balmukund Vs. State of Rajasthan & Anr.) 2/8 on 24.6.2010 alleging interalia that while she was at her father's house on 12.6.2010 at about 11 O'clock, one Raju S/o Man Singh came there on a motorcycle and told her that her husband Kalu Ram had met with an accident. Giving this false information, Raju took the prosecutrix with him on his motorcycle from Netewala towards Ganganagar. When they reached the gate of the hospital at Sriganganagar, at that time, Balmukund came there in a car and told her that as Kalu Ram had received serious injuries, he had been taken to Ludhiyana.The prosecutrix was taken by these two persons namely Balmukund and Raju in the car to a city. There, the accused told her that his house is located in the city where they would take food and then will proceed further. The prosecutrix was allegedly taken to a room. Balmukund went out and behind him, Raju committed rape with her. About half an hour Balmukund also came there and committed rape with her at gun point. It is alleged that she was kept in the said city for two days was repeatedly raped by both Balmukund and Raju. When the prosecutrix told the accused that she would report the matter, she was threatened of dire consequences. On 17.6.2010 the prosecutrix managed to escape from the room and reached the bus stand and from there, she boarded a bus for her father's village Netewala. She was terrified of the threats given to her by the accused and therefore, did not immediately disclose the true facts to her family members and ultimately on being assured that no harm would befall her, she mustered enough courage to file the report. On receiving the report, the Superintendent of Police, Sriganganagar directed the SHO Police Station Chunavad to make an inquiry into the matter. The SHO registered a case being FIR No.110/2010 for S.B.Cr.Misc.Petition No.2027/2011 (Balmukund Vs. State of Rajasthan & Anr.) 3/8 the offences mentioned above and investigation was commenced by the Additional S.P. (Rural), Sriganganagar. During the course of the investigation, when the prosecutrix was examined under Section 161 Cr.P.C. she stated that she was having intimacy with Raju. She further stated that Raju used to take her to Balmukund's field for working. She further stated that her sister, brother-in-law, brother and cousin came to fetch her from her husband's village 9Q and took her to the village Netewala with them. On 12.6.2010 she was all alone at her father's house with small children, at that time, she gave a phone call to Raju and called him to the village Netewala. Then she boarded Raju's motorcycle and went to Ganganagar. From there, they boarded a bus and went to Malot, where she stayed with Raju in a room for 6 days. On 17.6.2010 Raju told her that her relatives and Police were searching him and therefore, he was going to his village and she should also return back to her father's house. On this, she boarded a bus and came back to Netewala. She clearly stated that in order to save herself from ignominy, she gave a false story to her relatives regarding Raju having taken her away on the false pretext of the accident of her husband. She further stated that Raju had not committed rape with her. The Investigating Officer also recorded statement of one Smt.Rajmati Devi resident of Malot near whose house the prosecutrix stayed with Raju in a rented premises. She stated that Raju and the prosecutrix stayed there as husband and wife. The statement of Paramjeet Singh and Suman Devi and Saraswati Devi were recorded to the effect that Raju and prosecutrix stayed in the Room No.15 of Bansal Hostel on rent and there they revealed themselves to be husband and wife.
S.B.Cr.Misc.Petition No.2027/2011 (Balmukund Vs. State of Rajasthan & Anr.) 4/8 It appears that subsequently, the prosecutrix's husband threatened her with a divorce, thereafter the story was changed. The prosecutrix was examined under Section 164 Cr.P.C. on 12.7.2010 and in the said statement, she repeated the story set out in the complaint and alleged that Raju and Balmukund both committed forcible intercourse with her at Malot. The Investigating Agency did not rely on the subsequent version and filed a negative F.R. in the matter, with the conclusion that the prosecutrix went with Raju of her own free will and voluntarily stayed with him in a hostel at Malot. The Investigating Agency also gave a finding that Balmukund did not go with the prosecutrix and Raju rather the prosecutrix eloped with Raju alone and stayed with him voluntarily at Malot in the hostel. Thereafter, the false story of rape was cooked up under the pressure of the in-laws of the prosecutrix.
The learned Magistrate vide order dated 23.10.2010 however rejected the FR and proceeded to take cognizance and summoned the petitioner as well as the co- accused Raju for the aforesaid offences. The petitioner challenged the order taking cognizance by filing a revision and the learned revisional court too has affirmed the said order. Now the petitioner has approached this Court seeking quashing of the order taking cognizance and all the subsequent proceedings by way of the instant misc. petition.
A significant development, which has taken place in the interregnum and which is relied upon by the learned counsel for the petitioner in the instant misc. petition seeking quashing of the proceedings is that after the order taking cognizance, the co-accused Raju was tried for the offences S.B.Cr.Misc.Petition No.2027/2011 (Balmukund Vs. State of Rajasthan & Anr.) 5/8 mentioned above and at the trial, the prosecutrix was examined on oath and in the sworn testimony, she has totally denied the story of the prosecution and has stated that the statement given by her to the Magistrate under Section 164 Cr.P.C. was under the pressure of the Police and the villagers. She has specifically deposed that she was never taken to Punjab by Raju and Balmukund and was also not subjected to forcible intercourse. On the basis of the said statement, the trial Judge acquitted the co-accused Raju. The judgment of acquittal dated 5.9.2012 recorded by the learned Special Judge, SC/ST Act Cases, Sriganganagar in Sessions Case No.71/2011 has been placed on record.
Learned counsel for the petitioner thus submits that in view of the facts stated above and considering the fact that in the earliest version given by the prosecutrix under Section 161 Cr.P.C. she did not name the petitioner as the person, who had abducted her or had committed rape with her and also considering the fact that the subsequent investigation also revealed that the improvement which was made by the prosecutrix in her statement rendered under Section 164 Cr.P.C. was because of the reason that her in-laws gave her a threat of divorce and thereby pressurized her for giving false evidence against the accused, the order taking cognizance is absolutely an abuse of the process of the court. Learned counsel further urges that the subsequent development i.e. the sworn testimony of the prosecutrix recorded in the trial of the co-accused Raju wherein she has denied the prosecution story totally and has turned hostile and has even denied knowing the accused, he submits that the order taking cognizance is absolutely illegal and amounts to S.B.Cr.Misc.Petition No.2027/2011 (Balmukund Vs. State of Rajasthan & Anr.) 6/8 an abuse of the process of the court. He further submits that looking to the overall facts and circumstances of the case, the possibility of the petitioner being convicted in this case is absolutely remote. He further submits that the prosecutrix already having turned hostile in the trial of the co-accused Raju, it is unlikely that she would depose against the petitioner even if the trial of the case is conducted against him. He, therefore, prays that the misc. petition be accepted and the order taking cognizance against the petitioner be quashed.
Learned Public Prosecutor and the learned counsel for the complainant have vehemently opposed the arguments advanced by the learned counsel for the petitioner.
Heard and considered the arguments advanced at the bar and perused the record.
From a perusal of the record, it becomes apparent that the FIR which was filed by the prosecutrix, who is a major woman was belated by a substantial period of time. Thereafter, when the prosecutrix was initially examined by the Investigating Officer on 3.7.2010, she gave out a story of consensual relationship and elopement with Raju. She did not even name the petitioner as one of the persons, who had taken her away. The investigation carried out subsequently disclosed that the in-laws of the prosecutrix started pressurising her to give a false statement to implicate the accused persons and not only this, a threat of divorce was also given to her. It is apparently under the pressure of these circumstances that the prosecutrix changed her version and implicated the petitioner and Raju for the offences of abduction and rape when she was examined under Section S.B.Cr.Misc.Petition No.2027/2011 (Balmukund Vs. State of Rajasthan & Anr.) 7/8 164 Cr.P.C. on 12.7.2010. However, despite her statement under Section 164 Cr.P.C. the Investigating Agency filed a negative Final Report. The court concerned rejected the negative Final Report and took cognizance against the two accused namely Raju and the petitioner. The circumstances have again taken a turn and in the trial of co-accused Raju, the prosecutrix has totally turned hostile and has denied all the earlier allegations against the co-accused Raju as well as against the petitioner.
In view of the aforesaid facts, it is apparent that the story of the prosecution in this case is absolutely doubtful and is unworthy of any credence whatsoever. The prosecutrix has adopted shifting stands at different points of time and ultimately when examined on oath before the court in the sessions case No.71/2011, she has totally turned hostile. The trial Court thereafter vide judgment dated 5.9.2012 has acquitted the co-accused Raju. Therefore, this Court is of the opinion that permitting the trial of the petitioner in this case would be nothing but an exercise in futility looking to the overall facts and circumstances of the case. The result given by the Investigating Agency in the negative FR that the prosecutrix changed her version and made a false allegation in order to implicate the petitioner and the co-accused under the pressure of her in-laws appears to be logical and justified conclusion in this case. Therefore, this Court is of the opinion that permitting the criminal prosecution of the petitioner in this case would be nothing short of a gross abuse of the process of the court.
The upshot of the above discussion is that the misc. petition deserves to be accepted and is hereby allowed.
S.B.Cr.Misc.Petition No.2027/2011 (Balmukund Vs. State of Rajasthan & Anr.) 8/8 The order dated 23.10.2010 passed by learned Judicial Magistrate no.2, Srigangangar taking cognizance against the petitioner for the offences under Sections 363, 368, 376 IPC and Section 3 of the SC/ST Act, as affirmed in revision by order dated 24.9.2011 passed by learned Sessions Judge, Sriganganagar are hereby quashed. Accordingly, all the subsequent proceedings sought to be taken against the petitioner are also quashed.
Stay petition is also disposed of.
(SANDEEP MEHTA), J.
/tarun/