Jammu & Kashmir High Court
Angrez Chand Age 35 Years vs Union Territory Of Jammu And Kashmir on 20 March, 2024
S. No. 12
Supplementary Cause
List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:-Crl R No. 22/2021
Angrez Chand Age 35 years ...Petitioner/Appellant (s)
S/o Late Sh. Gouri Lal
R/o Kundi Tehsil Charala District Doda.
Through: Mr. G.S. Thakur, Advocate.
Vs.
1. Union Territory of Jammu and Kashmir ...Respondent(s)
Through Station House Officer
Police Station Thathri District Doda.
2. Sohan Singh
S/o Sh. Bhushan Kumar
R/o Chagsoo Tehsil Bhella District Doda.
Through: Mr. Adarsh Bhagat, GA for R-1
Ms. Shamima Jan, Advocate for R-2
CORAM:
HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
O R D E R(ORAL)
20.03.2024
01. The present criminal revision petition has been filed by the petitioner, who is aggrieved by the order of discharge dated 27.09.2021 passed by the Court of learned Principal Sessions Judge, Bhaderwah (hereinafter referred to as the "trial Court"), by virtue of which, respondent No. 2/accused was discharged of the offences under Sections 363, 376 and 511 IPC read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 (in short, "the Act") and charges were only framed under Section 354 IPC. The petitioner is the father of the prosecutrix, who has challenged the impugned order on the grounds that the learned trial 2 Crl R No. 22/2021 Court has embarked on an expedition of appreciating evidence and going into its probative value at the stage of framing charge itself, even though there was a strong prima facie case against the respondent no. 2 to charge him for all offences for which he has been discharged.
02. The brief facts of the case are as follows:-
03. That on 19.06.2021, the petitioner alongwith the family, including the six year old prosecutrix, had gone to attend the marriage of his nephew Ajay Kumar. At the function, the respondent-accused was also present, who is also related to the groom-Ajay Kumar. After sometime, the complainant/petitioner found that his six years' old daughter was missing. Upon his search, she was found 250 meters away from the marriage venue in the jungle and the petitioner saw respondent-Sohan Singh escaping from the place of occurrence. He went and picked up his daughter, who informed him that respondent-Sohan Singh has done a "wrong act" with her. The petitioner further records that blood stain was found on the stones and certain marks were found on the frock of the child. This being the narrative in the FIR, offences were registered against the respondent under Section 376/511/363 IPC and Section 8 of the Act.
04. The MLC of the child only records a bruise on the left cheek. The examination of her private part reveals that the hymen was intact. There are no abrasions or injuries of any kind or inflammation or redness observed by the doctor. Vaginal slides prepared were sent to the FSL and the FSL report is inconclusive. This is the medical/scientific evidence available on record. The learned trial Court has discharged the petitioner as herein-above for offences under Section 376 of the IPC read with Section 511 IPC and 3 Crl R No. 22/2021 Section 8 of the POCSO Act and Section 363 of the IPC. As regards the reasons given by the learned trial Court for having discharged the respondent for offences under Section 376/511 and Section 8 of the Act, this Court is in agreement with the reasoning given by the learned trial Court. The reasoning is that the MLC does not reflect any kind of contact/manipulation of the private part of the child or of any part mentioned in Section 7 of the POCSO, and the only injury/mark revealed in the MLC is a bruise on the left cheek of the prosecutrix and so, the accused has been discharged rightly for offences under Sections 376/511 IPC & Section 8 of POCSO. It is also relevant to mention here that the MLC does not reflect any kind of bleeding per vagina or even inflammation or marks of redness, as already stated herein-above. There are no other injuries or marks of violence or force anywhere on the body of the child. The only mark is on the left cheek of the child. Under the circumstances, the trial Court has charged the respondent under Section 354 IPC simpliciter.
05. Learned counsel for the petitioner has also strenuously argued that discharge of the accused under Section 363 IPC was incorrect and there was adequate material to support the framing of charge under Section 363 IPC. Learned counsel for respondent No. 2, on the other hand, has submitted that the order passed by the learned trial court is just and proper, based upon a proper appreciation of the material in the charge-sheet and that no interference is called for. However, having gone through the impugned order, this Court is of the opinion that the learned trial Court has gone beyond the stage of prima facie appreciation of the evidence on record and 4 Crl R No. 22/2021 has appreciated evidence to the extent of examining its probative value. Para 25 of the judgment passed by the learned trial Court reads as under:-
"...................................................................................
25. Before proceeding ahead to find out whether the ingredients of the alleged offences are disclosed against the accused or not, so as to frame charge for the same against the accused, reference to the statement of prosecutrix dated 05.07.2021 is inevitable and imperative. Ongoing through the statement of the prosecutrix she had not even identified the accused nor narrated anything that she was taken or enticed by the accused out of the keeping of her guardian which is sine qua none to attract the provision of section 361 IPC punishable under section 363 IPC. Further she has again recorded her statement on 16.08.2021, where she narrates a different version and states that accused had taken her to a forest and closed her mouth with Dupata and touch buttoned her cheek when Ayush was also accompanying them who was asked by the accused to leave the place and also on previous day accused had touched her cheek when he was cooking at her Uncle's house. Whereas PW Ayush does not identify the accused. On the basis of statements of the prosecutrix and the witness presumption of commission of alleged offence on the part of accused is to be inferred for the purpose of framing charges. It is not in dispute that prosecutrix has recorded her statement on two occasions and statements recorded are diametrically different and two views are discernable and while framing the charge, if two views are possible and one of them gives rise to suspicion only a distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused. As held supra there is nothing in the statement of the prosecutrix and witness that accused enticed the prosecutrix or took away forcibly or took away her from her lawful guardianship with criminal intent and as two views emerge from her statement and ingredients of section 361 or 362 of the IPC are not satisfied, so as to attract Section 363 Cr.P.C and accused as such is discharged from the commission of said offence."
06. The learned trial Court has correctly observed the point of law in paragraph 23, where it has stated that a prima facie case is required to be 5 Crl R No. 22/2021 looked into at the stage of framing charge, which may raise a strong suspicion. While giving its reasons, the learned trial Court has also discussed the judgment of the Supreme Court in "Union of India Vs. Prafulla Kumar Samal, reported in AIR 1979 SC 366", wherein the Supreme Court, in that landmark judgment related to framing of charges, has held that even at the stage of framing of charges, the trial Court is not a post office of the prosecution to blindly accept what is given in the charge sheet and fame charges only on the basis of the allegations in the charge sheet, but must sift and weigh the evidence for the limited purpose of assessing whether a prima facie case is made out against the accused or not, which may raise strong suspicion of his involvement in the offence and that an issue to proceed with the trial exists.
07. Learned trial Court, however, has entered into a discussion between suspicion and strong suspicion and has gone to assess the fact that the prosecutrix, whose age is six years, has not identified the respondent No. 2 and neither has the Ayush-the other sole witness, identified the respondent.
08. Learned counsel for the petitioner and learned counsel for the State have submitted that TIP was never conducted in this case and, therefore, the finding of the learned trial Court itself is premature, as there is nothing on record to show that the prosecutrix and the other witness-Ayush had an opportunity to identify the accused.
09. I am also in agreement with the submissions put forth by the learned counsel for the petitioner that before the identification, for which the witness must have an opportunity, it was improper for the learned trial Court to arrive at the finding that the prosecutrix and the witness have not 6 Crl R No. 22/2021 identified the accused. Learned counsel for the petitioner has also referred to the FIR itself, which is registered on the basis of the statement of the father of the prosecutrix, which makes out a strong prima-facie case against the accused. On the basis of the same, it was improper for the learned trial Court to discharge the respondent for the offence under Section 363 IPC.
10. Under the circumstances, the petition is partly allowed. While retaining the charge framed against the respondent under Section 354 IPC, this Court is of the view that there is sufficient material on record to a frame charge under Section 363 IPC also. The other offences for which the accused has been discharged is sustained by this Court.
11. Therefore, the impugned order passed by the learned trial Court is set aside to the limited extent mentioned in para 10 and the case is remanded to the learned trial Court to pass a fresh order framing charge, taking into consideration the order passed by this Court.
12. With the aforesaid directions, the present petition is disposed of, accordingly.
(ATUL SREEDHARAN) JUDGE JAMMU 20.03.2024 Mihul Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No