Full Text
HIGH COURT OF DELHI
STATE ..... Petitioner
Through: Mr. Manoj Pant, APP for the State with SI Pushpa IO P.S.
Jama Masjid and SI Dharambir, P.S. Hauz Qazi
Through: Mr. R.K. Singh and Mr. Gagan Gautam, Advocates
JUDGMENT
1. The present revision petition has been filed by the State assailing the order dated 18.10.2016 passed by learned ASJ/SFTC-2 (Central), Tis Hazari Courts, Delhi in Case No. 28745/2016arising out of FIR bearing no. 79/2016, registered at Police Station Hauz Qazi, whereby the accused persons have been discharged under Section 376 of Indian Penal Code, 1860 (“IPC”) and charges have been framed against them under Sections 323/354/354B/458/509 read with Section 34 of the IPC.
2. Briefly stated, the facts of the case are that on 05.03.2016, accused Nasiruddin, while he was getting some work done in the building near the house of the victim, made some gestures towards the victim, to which she had objected. Thereafter, Nasiruddin along with his son and some of his friends went to quarrel with the victim, however, they fled the spot soon after the victim dialed the Police Control Room. Three days after the said incident i.e., on 08.03.2016, the accused persons unlawfully entered the house of the victim, who was five months pregnant, and thereafter assaulted her with an intention to outrage her modesty. On the day of occurrence, an intimation to the police was given by the complainant, pursuant to which the police officials took the complainant to the police station for registering an FIR. On the next day of the incident, the complainant went to the Lok Nayak Hospital on 09.03.2016 due to stomach ache and bleeding from her genitals, and was medically examined. During the course of investigation, on 31.03.2016, a torn piece of kurta pyjama was handed over to the Investigating officer by the victim. Subsequently, the statement of the prosecutrix was recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure, 1974 on 02.04.2016, wherein the victim had stated that one of the accused persons had inserted a finger inside her genitals. The charge under Section 376 IPC was added pursuant to the statement of the victim. Charge-sheet in the present case was filed under Sections 376/323/354/354-B/458/509/34 IPC and order on charge dated 18.10.2016 was passed by the learned Trial Court, whereby the accused persons were discharged under Section 376 IPC. The operative part of impugned order dated 18.10.2016 reads as under: “…As per case of prosecution, prosecutrix has never stated in her complaint that she was raped by accused nor in her MLC she has stated to doctor. Only her statement u/s 164 Cr.P.C. she' came about with the fact of rape. In these circumstances, prima facie in my opinion, no case is made out to proceed with accused persons for offence punishable under section 376 IPC. However, prima facie case is made out against the accused persons for offences punishable under sections i.e. 323/354/354B/458/509/34 IPC are exclusively triable by magisterial court. Hence, file be sent to Ld. CMM concerned for necessary directions. Parties are directed to appear before Ld. CMM concerned on 19.10.2016 at 2:00 p.m…”
3. Learned APP for the State/petitioner submits that learned Trial Court, while passing the order on charge, has exceeded its jurisdiction and has appreciated the evidence in detail at the stage of framing of charge. It is argued that the learned Trial Court has ignored the settled law that even if two views are possible at the stage of framing of charge, the view in the favour of prosecution should be accepted. It is stated that the prosecutrix had revealed that she did not mention the occurrence of the incident earlier as she was afraid that her honour and dignity will be compromised. Reliance has been placed on the following decision in support of the aforesaid contentions by the learned counsel for the petitioner: (i) State of M.P v. S.B Johri (2002) 2 SCC 57; (ii) Mathura Dass & Ors. v. State, (2003) 2 AD Criminal 437; (iii) Neha Monga v. State 2012(10) AD (Delhi) 338
4. The learned counsel appearing for the respondents, however, states that the petitioner has not raised a single ground which could be considered as the relief claimed in the petition is to be considered on the basis of statement made by the complainant at the first instance for determination of charge. The medical examination of the victim reveals that there is an alleged history of physical assault by a neighbour, however, no history of any sexual assault, no complaint of pain in the abdomen/LPV/BPV and no fresh external injury on the body at the time of examination has been observed. It has been stated by the learned counsel for respondents that the allegation of rape is a concoction of stories, in view of which the present petition be dismissed.
5. I have heard the contentions and arguments of learned counsels for both parties, and material available on record has also been perused. Before considering the facts of the case, it would be appropriate to briefly discuss the settled law applicable to the case at hand.
6. The provisions dealing with the discharge and framing of charge are given under Section 227 and 228 of Cr.P.C. respectively, and the same are reproduced as under:
7. The Hon’ble Supreme Court in the case of Sajjan Kumar v. CBI (2010) 9 SCC 368, has considered the power of court in respect of the framing of charges and held the fact that a prima facie case would depend on the facts and circumstances of each case. The observations of Apex Court are as under:
8. In the case of Asim Shariff v. National Investigation Agency (2019 7 SCC 148, it was reiterated that the trial court is not supposed to divulge the evidence on the record to determine whether the accused would get acquitted or convicted if a particular charge is framed against an accused. The relevant portion of the observation of the court in the case is as under:
9. Further, in the case of Vikram Johar v. State of Uttar Pradesh & Anr., 2019 SCC OnLine 609 the Supreme Court has reiterated that during the stage of charge, the court must not conduct a mini-trial and the decision should be based on the prima facie appreciation of the materials placed on record. The relevant portion of the said judgment is as under:
10. Learned APP for the state/petitioner had placed reliance upon the judgment titled as Neha Monga v. State, (Delhi High Court), 2012 (10) AD (Delhi) 338 and relevant portion of the said decision is reproduced herein: “In the opinion of this Court the learned trial Court, even after noticing the judgment of the Supreme Court wherein it has been held as the at the stage of charge detailed and minute appreciation of the evidence which the prosecution proposes to adduce during the trial is not permissible, has gone much beyond its jurisdiction which it possessed at the stage of charge by considering the effect of nothing having been said against the discharged accused in the FIR and their being named as the rapists only in her subsequent statements under section 161 and 164 Cr.P.C. The question as to why names of the accused persons discharged by the trial court were not mentioned in the body of FIR, though their names were stated there as the accused persons, could to be gone into at the time of trial only and should not have been answered by the trial Court at the stage of charge. The subsequent statements under Sections 161 and 164 Cr.P.C. of the prosecutrix claiming the discharged accused also to be the rapists were sufficient to accept the allegations against then at the stage of charge. And as far as the submission made on behalf of the charged accused that the allegations of rape are highly improbable is concerned the same has also no merit as there is nothing improbable about those allegations.”
11. A perusal of the impugned order reveals that that three things were considered by the learned Trial Court at the stage of framing of charge i.e., the FIR, the MLC and statement of the prosecutrix under Section 164 Cr.P.C. It was noted by the learned Trial Court that the prosecutrix has neither made any mention about the commission of rape while lodging the FIR, nor the same has been revealed in the MLC. It is further noted that the prosecutrix has only mentioned about the offence for the first time during the statement given to the learned Magistrate under section 164 Cr.P.C. wherein it was stated that one of the accused persons inserted a finger in her genitals and had hit her stomach despite the prosecutrix stating to the accused persons that she was pregnant. It was observed by the learned Trial Court that the MLC does not mention any sexual assault rather only the physical assault. However, it appears that the learned Trial Court, at the stage of framing of charge, went on to marshal the evidence and find contradictions in the same.
12. A reference in the present set of facts and circumstances can be made to the recent judgment of Hon’ble Apex Court in Hazrat Deen v. The State of Uttar Pradesh, Special Leave to Appeal (Crl.) No(s). 9552/2021 wherein it was opined that: “In her statement given by the prosecutrix under Section 164 of the Code of Criminal Procedure (CrPC) after the prosecutrix attained majority, she categorically made statements which tantamount to offence under Section 376 of the IPC. Discrepancies between the FIR and any subsequent statement under Section 164 of the CrPC may be a defence. However, the discrepancies cannot be a ground for discharge without initiation of trial.”
13. Thus, when the impugned order is tested in light of Hazrat Deen (supra) as well as settled position of law with regard to framing of charge, it appears that the learned Trial Court has committed an error in discharging the accused by giving undue weightage to the discrepancies in the statements of prosecutrix. In the given facts, a charge under Section 376 IPC could have been framed solely on the basis of the statement made under Section 164 Cr.P.C. even if such an allegation was not made in the FIR or in statement under Section 161 Cr.P.C. This is so because in offences like rape where only the victim is the witness in majority of the cases, the statement made by victim should be looked at from a considerate and liberal perspective at the time of framing charges. A statement made under Section 164 Cr.P.C. disclosing the offence of rape shall be sufficient to frame charges under Section 376 of IPC.
14. The courts must give a careful consideration to the aftermath of an incident of sexual violence against any person. There is no doubt about the trauma which a victim goes has to face, both physically and emotionally, after incidents of such a nature. Many a times, a person may not be in an emotional or physical state to take an immediate stand against the assailant or to go through further trauma of investigation by the police or through an intrusive medical examination, and an accused should not merely be discharged under Section 376 because the prosecutrix has not stated about the same in her FIR or during MLC.
15. An overzealous approach to appreciate evidence in detail and conclude the entire case even before it begins is fatal not only to the case at hand, but, at times, to the justice and faith of the victim in the criminal justice system. There might be instances where the MLC will not be able to disclose the actual incident. One such example is when it has been alleged that an act of rape has been committed by a finger or by any other object or in any manner where restraint marks or other medical evidence could not be adduced. Thus, trial courts during the stage of framing charges, must not venture into the appreciation of evidence and start assessing the same, rather the courts are bound to frame charges where there is a prima facie case to show that an offence has been committed.
16. Therefore, in the light of the foregoing discussion, the impugned order dated 18.10.2016 passed by learned Trial Court in Case NO. 28745/2016 arising out of FIR bearing no. 79/2016, to the extent of discharging the respondents for offence under Section 376 IPC is set aside and accordingly, charge under Section 376 IPC is framed against the accused persons, in addition to the other charges already framed against them.
17. Accordingly, the present petition stands allowed.
18. It is, however, clarified that the observations made by this Court are only for the purpose of deciding the present petition and the same shall not have any bearing on the merits of the case during the trial SWARANA KANTA SHARMA, J NOVEMBER 23, 2022