S Vs. STATE

JUDGEMENT

(1.) The instant revision petition has been filed on behalf of the petitioner under Ss. 397/401 read with Sec. 482 of the Code of Criminal Procedure, 1973 ("Cr.P.C.') assailing the order on charge dtd. 15/2/2023 passed by learned Additional Sessions Judge (FTSC) RC-01, West, Tis Hazari Courts, Delhi ("Trial Court') and seeking framing of charges for offences punishable under Ss. 376/323/354/354B/506/34 of Indian Penal Code, 1860 ("IPC') in case arising out of FIR No. 43/2019, registered at Police Station Paschim Vihar East, Delhi for offences punishable under Ss. 323/354/354B/509/506/34 of IPC. FACTUAL BACKGROUND

(2.) Briefly stated, the facts of the present case are that on 10/1/2019, a PCR call was received vide D.D. No. 14A, regarding a quarrel between the prosecutrix and the accused/respondent no. 2. When the police had reached the spot, it was found that the prosecutrix and her sister-in-law had already been taken to the Hospital for medical examination by the PCR. The MLCs of the prosecutrix and her sister-in-law were conducted on 10/1/2019, in which both the victims had given an account of the incident. However, after that, the matter had been compromised between the parties on the same day and the parties did not initiate any legal action. On 25/1/2019, however, the prosecutrix had sent a complaint to P.S. Paschim Vihar alleging that on 10/1/2019, at around 09:00 AM, while she was taking a stroll with her two sister-in-laws and was passing near her house, accused/respondent no. 2 i.e. Yogesh, who was the tenant in the house owned by prosecutrix, had called her and attempted to rape her. It was also stated that he had threatened the prosecutrix that in case she informs the police, he would kill her and her family, and would also falsely implicate them in criminal case. It was also alleged that the accused Yogesh had even threatened the prosecutrix that he would retain illegal possession of her property, in which he is tenant. Thereafter, as alleged, the son of accused Yogesh/ respondent no. 3, wife of accused Yogesh/respondent no. 4 and the daughter of accused Yogesh/respondent no. 5 had also given beatings to the prosecutrix, and respondent no. 3 had also sexually assaulted sister-in-law of the prosecutrix. It was further alleged that accused Yogesh had also made his dog attack the prosecutrix and her sister-in-law. On the basis of these allegations, the present FIR was registered against all the accused persons under Ss. 323/354/354B/506/509/34 of IPC. The statements of the prosecutrix/petitioner and her sister-in-law was recorded before the learned Magistrate on 31/1/2019. After completion of investigation, chargesheet was filed against the accused persons under Ss. 323/354/354B/376/506/509/34 of IPC. The allegations against respondent no. 2 were under Ss. 323/354/354B/376/506/509/34 of IPC, against respondent no. 3 were under Ss. 323/354/354B/506/509/34 of IPC, against respondent no. 4 and 5 were under Ss. 323/506/34 of IPC. SUBMISSIONS BEFORE THIS COURT

(3.) Learned counsel for petitioner/prosecutrix states that there are specific allegations against respondent no. 2 and 3 regarding sexually assaulting the petitioner and her sister-in-law respectively. It is also stated that the said allegations leveled by the prosecutrix are corroborated by her MLC and the statement recorded under Sec. 164 of Cr.P.C. It is argued that the learned Trial Court has committed an error by relying upon a polygraphic test report of the petitioner and respondent no.2 as the same is not conclusive proof of innocence of accused and no inference can be drawn from the said report. It is also stated that this report is not relevant especially at the stage of charge since the prosecutrix/petitioner was put on limited intoxication and it depends upon anatomy of each person as to how much he/she can tolerate a certain level of intoxication. It is also argued that the learned Trial Court has also erroneously relied upon a CCTV footage without applying its judicial mind to the allegations leveled by the prosecutrix and the contents of her statements. it is stated that learned Trial Court has committed an error by framing charges only under Ss. 323/354/354B/506/34 of IPC against respondent no. 2 and 3 and by discharging respondent no. 4 and 5 from all offences alleged. Therefore, it is prayed that charges under Ss. 376/323/354/354B/506/34 of IPC be framed against all the accused i.e. respondent no. 2 to 5.