Delhi District Court
In Re vs (1) State on 8 March, 2018
Crl. Revision No. 269/2017
IN THE COURT OF MS. SMITA GARG,
ADDITIONAL SESSIONS JUDGE FAST TRACK COURT,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
CNR No. DLWT010061102017
Crl. Revision No.269/2017
In re:
Kamla
W/o Sh. Ramesh,
R/o 160/137, Sudama Puri,
Moti Nagar, Delhi. .........Revisionist
Versus
(1) State
(2) Makhan
S/o Late Sh. Manohar Lal,
R/o B412, Raghubir Nagar,
Delhi
(3) Peepal
S/o Sh. Mohan Lal,
R/o WZ508, Basai Dara Pur,
Delhi .......Respondent
Date of filing of revision petition : 11.07.2017
Date of pronouncement of judgment : 08.03.2018
JUDGMENT:
Kamla v. Makhan Singh & Ors. Page No. 1/ 11
Crl. Revision No. 269/2017
1. This revision petition is directed against the order dated 12.04.2017 passed by the Ld. MM (Mahila Court03), West District in State case arising out of FIR No. 520/15 under Section 452/323/325/354B/34 IPC registered at P.S. Moti Nagar whereby the respondents no.2 and 3 were discharged of the offence under Section 354B IPC.
2. Brief facts relevant for the disposal of the revision petition are that the above mentioned FIR was registered under Sections 452/323/34 IPC on 27.06.2015 on the statement of the complainant (i.e. the revisionist herein). In her statement, the complainant alleged that on 26.06.2015 at about 9 PM, when she alongwith her nephew was standing outside her house, the respondent no.2 alongwith his father in law Basanta and brother Peepal (respondent no.3 herein) came there and started quarreling with her on the issue that the car of her nephew had caused scratch marks on the vehicle of their relative. Though the complainant and her nephew receded to their house in order to avoid the quarrel but the respondent no.2 & 3 alongwith co accused Basanta followed them into the house. In the mean time, the other coaccused persons i.e. the wife of respondent no.2 Anita, younger brother of the respondent no.2 Nippal and Ninja also trespassed into the house of the complainant and all Kamla v. Makhan Singh & Ors. Page No. 2/ 11 Crl. Revision No. 269/2017 of them gave beatings to the complainant and her nephew with the dandas and lathies brought by them. The complainant alleged that in the said incident, she alongwith her nephew, her sister Meera and her husband Ramesh sustained injuries. A call was given to the police. The police took the complainant and the other injured persons to the hospital for treatment but the accused persons also reached there and again gave beatings to them and fled away from the hospital. The complainant further alleged that during the incident, her clothes were also torn. She sought action against all the accused persons. During the course of investigation, statement of witnesses under Section 161 CrPC were recorded. Torn clothes of the complainant and her sister Meera were seized. After the completion of investigation, the police filed chargesheet for the offences under Section 452/325/323/34 IPC against the respondent no.2 only on 24.08.2015.
On 04.07.2016, supplementary charge sheet was filed by the investigating agency against the remaining accused persons including the respondent no.3. On 23.09.2016, when the matter was fixed for arguments on charge, it was pointed out by the counsel for the revisionist/complainant that the allegations in the Kamla v. Makhan Singh & Ors. Page No. 3/ 11 Crl. Revision No. 269/2017 complaint also disclosed the commission of offence under Section 354B IPC against the accused persons except the accused Anita but the said aspect had not been investigated. A report in that regard was called by the Ld. MM. Later on, on 18.11.2016, the police filed the second supplementary charge sheet wherein the respondent no.2 & 3 were charge sheeted for the offence under Section 354B IPC also. Consequent thereto, the matter was transferred to the Mahila Court.
3. At the stage of charge, the Ld. Trial Court came to the conclusion that since the allegations in the initial complaint did not disclose the commission of offence under Section 354B IPC and that there were material improvements in the supplementary statements of the witnesses, offence under Section 354B IPC was not made out and thus the respondents no.2 & 3 were discharged.
Aggrieved therefrom, the complainant/revisionist has approached this court.
4. I have heard the counsel for revisionist, Ld. APP for State/respondent no.1 and counsel for respondents no.2 & 3.
Kamla v. Makhan Singh & Ors. Page No. 4/ 11 Crl. Revision No. 269/2017Trial court record has also been perused.
5 The counsel for the revisionist has assailed the impugned order by contending that the trial court fell in error in observing that the clothes of the complainant had got torn during the course of quarrel and that there was no intention on the part of the respondent no.2 & 3 to disrobe her. He argued that the complainant had specifically stated in her complaint dated 27.06.2015 that during the quarrel, her clothes had been torn and that the said allegation had also been reiterated by her in her supplementary statement recorded on 14.11.2016. He contended that the supplementary statements of the complainant and her sister Meera recorded on 14.11.2016 could not have been discarded by the trial court as at the stage of charge, it was not open to the trial court to go into the probative value of the material on record and the court ought to have accepted the same. He submitted that since the respondents no.2 & 3 had been discharged by the trial court on surmises and conjectures ignoring the material on record against them, the impugned order is liable to be set aside.
6 On the other hand, the counsel for the respondents no.2 & 3 has Kamla v. Makhan Singh & Ors. Page No. 5/ 11 Crl. Revision No. 269/2017 submitted that there is no illegality or infirmity in the order dated 12.04.2017 passed by the trial court and thus, no interference is called for. He argued that the trial court rightly observed that the clothes of the complainant had got torn in the course of the alleged quarrel and thus in the absence of the intention to disrobe, Section 354B IPC was not made out. He urged that since the allegations of disrobing against the respondents no.2 & 3 were levelled by the complainant and her sister for the first time in their supplementary statements recorded on 14.11.2016 and that too after a report had been sought by the court from the IO, the said allegations were clearly an after thought and therefore, the trial court was justified in disbelieving the same.
7 Before venturing into the factual matrix of the case, it would be appropriate to refer to the guidelines laid down by the Superior Courts to be kept in mind at the stage of framing of charge. In Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366, the Hon'ble Apex Court laid down the following principles:
Kamla v. Makhan Singh & Ors. Page No. 6/ 11 Crl. Revision No. 269/2017(i) 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;
(ii) 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;
(iii) 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; and
(iv) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court can not act merely as a PostOffice or a mouthpiece 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.
The above legal proposition got further clarified in State of Maharastra and Ors. v. Somnath Thapa and Ors.. After noting three pairs of sections viz (i) sections 227 and 228 in respect of Kamla v. Makhan Singh & Ors. Page No. 7/ 11 Crl. Revision No. 269/2017 sessions trial; (ii) sections 239 and 240 relating to trial of warrant case and (iii) section 245 qua trial of summon case, while dealing with the question of framing of charge or discharge, it was held by the Hon'ble Apex Court as under: 'If on the basis of material 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 court 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 charge, probative value of the material on record can not be gone into; the material brought on record by the prosecution has to be accepted as true at that stage.' From the above case laws, it is clear that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to find 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 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. Even strong suspicion founded on material Kamla v. Makhan Singh & Ors. Page No. 8/ 11 Crl. Revision No. 269/2017 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 commission of that offence.
8 Section 354B IPC, which provides punishment for assault or use of criminal force to woman with intent to disrobe, is reproduced as under: "Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine."
From a bare reading of the above provision, it is seen that in order to constitute the offence under Section 354B, the following ingredients must exist:
i) assault or use of criminal force against a woman;
ii) such assault or use of criminal force should be with the intention:
(a) of disrobing the woman; or
(b) compelling the woman to be naked.
9 In her initial statement dated 27.06.2015, on the basis of which Kamla v. Makhan Singh & Ors. Page No. 9/ 11 Crl. Revision No. 269/2017 the FIR was registered, the complainant had specifically alleged that in the quarrel, her clothes had been torn. Torn clothes of the complainant and her sister Meera were also handed over to the IO on the same day. To that effect, the statement of the sister of the complainant had also been recorded on 27.06.2015. Ignoring the same, the police charge sheeted the accused persons for the offences under Section 452/323/325/34 IPC only. It was only upon being questioned by the court that further investigation in the matter was taken up by the police. Supplementary statements of the complainant and her sister were recorded on 14.11.2016 wherein both of them clarified that while the clothes of the complainant had been torn by the respondent no.2, the respondent no.3 had torn the clothes of her sister Meera. Had the complainant not whispered anything on this aspect in her initial statement dated 27.06.2015, the allegations in the supplementary statements could have been considered as an after thought. Further, expression 'intention' refers to the state of mind. Whether or not the respondents no.2 & 3 possessed the intention to disrobe the complainant and her sister could have been gathered only from the attending circumstances and the deposition of the prosecution witnesses during the course of trial. At the stage of charge, it was not open to the trial court to Kamla v. Makhan Singh & Ors. Page No. 10/ 11 Crl. Revision No. 269/2017 go into the probative value of the statements recorded during the course of investigation to return the finding that the 'intention to disrobe' was missing. Hence, the trial court clearly erred in discharging the respondents no.2 & 3 of offence under Section 354B IPC. Considering the statements of the complainant and other witnesses under Section 161 CrPC, torn clothes of the complainant seized and other material collected during the course of investigation, prima facie, charge for the offence under Section 354B IPC is clearly made out against the respondents no.2 & 3.
10 In the light of above discussion, the revision petition is allowed and the impugned order dated 12.04.2017 is set aside. The trial court is directed to hear arguments on charge qua the other offences alleged against the accused persons and then proceed with the matter in accordance with law.
With the above directions, the revision petition stands disposed of.
File of revision petition be consigned to record room.
SMITA Digitally signed
by SMITA GARG
Date: 2018.03.08
GARG 17:24:27 +0530
Announced in the open court (Smita Garg)
on 08.03.2018 Addl. Sessions JudgeFTC, (West)
Tis Hazari Courts, Delhi.
Kamla v. Makhan Singh & Ors. Page No. 11/ 11