Madhya Pradesh High Court
Nitin Chourey vs The State Of Madhya Pradesh on 13 February, 2023
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 13th OF FEBRUARY, 2023
CRIMINAL APPEAL No. 7754 of 2022
BETWEEN:-
NITIN CHOUREY S/O BANWARILAL CHOUREY,
AGED ABOUT 29 YEARS, OCCUPATION: GOVT.
SERVANT
R/o- SOMANTH APARTMENT VIGYAN NAGAR,
INDORE (MADHYA PRADESH)
.....APPELLANT
(BY MS. SONALI GOYAL, ADVOCATE
AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
JUNI INDORE (MADHYA PRADESH)
2. VICTIM X THROUGH POLICE STATION JUNI
INDORE (MADHYA PRADESH)
.....RESPONDENTS
( BY SHRI SANJAY KARANJAWALA ,GOVT.
ADVOCATE &
SHRI AKHILESH KUMAR SAXENA,
ADVOCATE FOR THE RESPONDENT [R-2].
..................................................................................................................
This appeal coming on for orders this day, the court passed the
following:
2
ORDER
1] This Criminal Appeal has been preferred under Section 14-A of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act read with 397 and 401 of the Cr.P.C., 1973 against the order of framing charges dated 09.07.2022, passed by the Special Judge (SC & ST Prevention of Atrocities Act) in Special Case No.132/2021 for offence under Sections 376(1) & 376(2)(n), 323 & 506 (Part-2) of IPC read with Sections 3(2)(v-a), 3(2)(v) & 3(1)(w)(ii) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2] Shorn of details, the facts of the case are that on 14/06/2020, the appellant who was posted as a Patwari, took the the respondent no.2 prosecutrix, who is also a Patwari in the State Government, from Dhar to Indore on the pretext that his some relative is admitted in the hospital but instead, he took her to his friend's apartment at Palsikar Colony, Indore at around 6:00 O'clock in the evening and gave her some drink, which was spiked with some drug and after she drank the same, she fell unconscious and when she woke up in the night, she found that the appellant was lying with her in the bed and both of them were undressed. It is further alleged that when respondent No.2 objected to the same, the appellant started beating her and again raped her, and subsequently also on two occasions, after threatening her that he has her video and photographs which he would viral on the social media he raped her. Threatened,, the prosecutrix did not inform the incident to anybody but after gathering courage and discussing the 3 matter with her friends, she has lodged the report against the appellant. After the charge sheet was filed, the learned Judge of the trial court has framed the charges against the appellant as aforesaid vide order dated 09.7.2022 and being aggrieved of the same, this petition has been filed.
3] Ms. Sonali Goyal, counsel appearing for the appellant has submitted that the FIR has been lodged after a period of around 11 months and 09 days, as the date of the incident is said to be 11.6.2020; whereas, the FIR was lodged on 23.5.2021, which raises reasonable suspicion as to veracity of the case. Counsel has also submitted that the date of incident is said to be 14.6.2020 at around 6:00 O'clock, on that date, the appellant was not present on the spot and was in fact, performing his duty as Patwari at village Diglaya and he had also visited Mohankheda Jain Temple which is 110 km away from Indore at around 6:58 p.m. and had also taken a selfy at the aforesaid Temple on the said date and time.
4] Ms. Goyal has also drawn attention of this Court to the report submitted by the office of the Superintend of Police, Juni, Indore dated 29.11.2021 wherein, the mobile tower location of the appellant has been found to be at Dhar; whereas the incident is said to have taken place at Rajendranagar, Indore. It is also submitted that the aforesaid document is of an unimpeachable character and can be looked into at this stage of the proceedings as it has been filed in the 4 applicant's anticipatory bail application Cr.A.No.3859/2021 before this court by the State. It is also submitted that the appellant was also granted the anticipatory bail by this court considering the aforesaid report also. Counsel has further submitted that the appellant has been falsely implicated in the case only because the prosecutrix wanted to marry him, and had she been really subjected to rape, she would have immediately inform the incident to her friends and instead even according to her own statement, after she was subjected to rape, she accompanied the appellant from Indore to Dhar which is not natural.
5] Counsel has also drawn the attention of this court to the attendance register of the office of Revenue Inspector, Cercle-3, Nalchha, Tehsil-Pithampur, District-Dhar (Annexure A/4) wherein it is also apparent that the prosecutrix also attended her office along with the appellant immediately after the incident for a continuous period of one month without any hue and cry, which also demonstrates that the appellant was not involved in the crime and has been falsely implicated in the case.
6] In support of her submissions, Ms. Goyal has relied upon the decisions rendered by the Supreme Court and the Delhi High Court in the following cases:-
1) Santosh Prasad Alias Santosh Kumar vs. State of Bihar {(2020) 3 SCC 443;
2) Deepak Dua vs. State and another (2021 SCC OnLine Del 4221;
3) P. Vijayan vs. State of Kerala & another {(2010)2 SCC 398;
54) Dilawar Balu Kurane vs.State of Maharashtra{(2002) 2 SCC 135;
5) Nitya Dharmananda Alias K. Lenin and another vs. Gopal Sheelum Reddy Also known as Nithya Bhaktananda and another {(2018) 2 SCC 93};
6) State of Orissa vs. Debendra Nath Padhi {(2005) 1 SCC 568;
7) Patan Jamal Vali vs. State of Andhra Pradesh {2021 SCC Online SC 343;
8) Jagsen vs. State of Chhattisgarh (Cr.A.No.973/2012) with Bholaram & Ramkumar vs. State of Chhattisgarh (Cr.A.No.1130/2012 dated 08.09.2022);
9) Chandan Sawhney vs. State (CRL. REV.P. 716/2017 & CrL.M.A. 15747/2017).
7] Shri A.K. Saxena, counsel appearing for the Objector/prosecutrix has opposed the prayer and it is submitted that no case for interference is made out, as it is in the trial only that the contentions and the defence of the appellant can be tested on the anvil of the evidence adduced by the parties on record. It is also submitted that the report submitted by the Office of the Superintend of Police, Juni Indore cannot be considered at this stage for quashing the charges. 8] Shri Sanjay Karanjawala, Govt. Advocate appearing on behalf of the respondent/State has also opposed the prayer on similar grounds.
9] Heard the counsel for the parties and perused the record. 10] It is true that both, the appellant and the prosecutrix are Patwaris in the State Government and were posted at Dhar at the time of incident. From the statement of the prosecutrix as filed with the charge-sheet, it is also found that the FIR was not lodged by the 6 prosecutrix immediately after the incident and in fact it was lodged after a delay of 11 months and 9 days.
11] On close scrutiny of the Charge-sheet, this court is of the considered opinion that the case of the prosecution cannot be thrown overboard outright only on the ground of delay in lodging the FIR. It is trite law now that in the cases involving sexual offences, the social stigma attached to it, the delay in filing the FIR cannot be said to be fatal to the prosecution. And, in the present case, where the prosecutrix herself is a government officer, her dilemma to enter into this unknown territory of criminal law and expose herself to all her family members, friends and collogues, is not difficult to imagine. 12] This court is also of the considered opinion that the tower location report of the appellant's mobile phone submitted by the police, that he was not found at Indore on the date of the incident in itself cannot give rise to a presumption that he was not present on the date and time of the incident as it has to be proved in accordance with law in the trial only. Similarly, the selfie of the appellant at Mohankheda Jain Temple on the day and time of the incident is also to be proved before the trial court in accordance with law. It is also noted that the prosecutrix has alleged rape not only once but subsequently also. It is true that the appellant was also extended the facility of anticipatory bail by this court, relying upon the tower location report, but trite it to say that the considerations for grant of a bail application are different then the considerations for quashing 7 charges, The decisions relied upon by Ms. Goyal are distinguishable on facts and are of no avail to the appellant.
13] In such facts and circumstances of the case, this court is of the considered opinion that it is not a case where the prosecution can be snapped at the initial stages of framing of charges only and resultantly, the appeal being devoid of merits, is hereby dismissed.
( SUBHODH ABHYANKAR) JUDGE moni Digitally signed by MONI RAJU DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya MONI RAJU Pradesh, 2.5.4.20=6fb601f03d4083a3289219d85392bac3bde1be8a53bd 80aeba7af5a5244844c1, pseudonym=85E21E23646B47526A49E99D9182D0AE8ABD62 D1, serialNumber=3BFD07BEC0C790E4AEA8CB122D629549D1067 813B2AE8FB016F1BF08EE881126, cn=MONI RAJU Date: 2023.02.20 18:10:45 +05'30'