VINOD SHARMA Vs. STATE

JUDGEMENT

(1.) BY the present petition the Petitioner lays a challenge to the impugned order dated 24th August, 2007 passed by learned Sessions Judge directing the framing of charge under Section 376 IPC against the Petitioner and for quashing of the charge sheet filed by the police in case FIR No. 513/2006 PS Sarai Rohilla under Section 376 IPC.

(2.) BRIEFLY the prosecution case is that on 31st July, 2006 the prosecutrix gave a complaint to SHO PS Sarai Rohilla alleging that the Petitioner who was posted in Delhi Traffic Police used to reside in the same street as she was. Since her childhood, she used to go to his house for taking tuitions from him and his sister Deepa Sharma. He had been misguiding her from the year 2001 and made physical relations with her forcibly when she was aged 17? years. When she wanted to disclose about the offence, the Petitioner threatened her saying that he being in service with Delhi Police, he will make life miserable for her as well as her brothers. Thereafter he took her forcibly to Nainital on 13th February, 2003 where he kept her at Hotel Prashant for 3-4 days and forcibly made physical relations with her and every time threatened her of kidnapping her brothers and throwing acid on her face. At the hotel, he married her in a room, photographs of which were available with her. Thereafter since April, 2003 both of them started residing as husband and wife in a flat at Rohini, where he asked her to make physical relations with his friends due to which she came back to her parental house, as he used to beat her on refusal. After apologizing he brought her back from her parents' house. Her mother and sister who used to meet her and stated that until the sister of the Petitioner would get married they cannot take her to their home. On 30th October, 2005 they shifted to A-243, Sudarsharshan Park where again they resided as husband and wife and then to B-1108 Avantika, Rohini where again he started beating her. Since her parents brought her back to their home, in her absence the Petitioner took away all the belongings and ran away from there. The complainant alleged that after living for four years as her husband now he is refusing to accept her as his wife and trying to marry somewhere else and prayed for action. After registration of FIR the statement of the prosecutrix was recorded under Section 164 Cr.P.C. by the learned Metropolitan Magistrate wherein she reiterated the facts alleged in the complaint. She further stated that on 15th February 2001, when she was around sixteen and a half year, Vinod asked her to come to his house. Since the prosecutrix was searching for a job, he called her saying that he knew people in the placement agency. He also stated that his sister was at home. When she went to his house, the Petitioner was in his bedroom and no one else was present there. When the complainant asked about his sister, the Petitioner stated that he was joking. He made a phone call ostensibly to a placement agency. Thereafter, when she wanted to leave he did not permit her to leave and locked the door from inside and committed rape on her. She went back to her house but did not tell anyone due to hesitation. Later the Petitioner met her, apologized and promised to marry her and kept on having intercourse with her. On filing of the charge sheet, the learned Additional Sessions Judge was pleased to pass the impugned order.

(3.) LEARNED APP on the other hand contends that the complaint dated 31 st July, 2006 on the basis of which FIR was registered on 27th December, 2006 and the statements of the prosecutrix under Section 161 Cr.P.C. and Section 164 Cr.P.C. recorded by the learned Metropolitan Magistrate clearly make out allegations for offence defined in Section 375 thirdly punishable under Section 376 IPC. The complaint filed by the complainant before the learned magistrate was withdrawn before any effective order or cognizance thereon could be taken. Moreover the complaint is not part of the charge sheet and hence the Petitioner is not entitled to rely upon the material which was not before the learned Trial Court in the present revision petition.