RAHUL YADAV & ANR Vs. STATE

JUDGEMENT

(1.) The instant Revision petition has been preferred by the petitioners Rahul Yadav (P-1) and Amrish Kumar Shrivastav (P-2) to challenge the legality and propriety of an order dated 18.12.2015 of learned Additional Sessions Judge, by which charge under Sec. 376 D/34 Penal Code was framed against them. Revision petition is contested by the State.

(2.) I have heard the learned Senior counsel for the petitioners and the learned Addl. Public Prosecutor for the State and have examined the file.

(3.) Learned Senior counsel urged that the impugned order cannot be sustained as the prosecutrix has leveled vague and baseless allegations. She herself was not sure if incident of commission of rape had taken place. Material discrepancies and infirmities occurring in the statements of the prosecutrix at various stages of the investigation have been overlooked by the Trial Court. Statement of the prosecurtrix has remained uncorroborated and is not supported by medical or scientific evidence. Soon after the incident, the prosecutrix was medically examined and no injuries, whatsoever, were found on her body. Various exhibits were sent to Forensic Science Laboratory for examination and no semen or blood was detected on it. No male DNA profile could be generated from the source of exhibits. In her 164 Crimial P.C. statement, the prosecutrix has made vital improvements. The prosecutrix concealed the factum of mobile No.9540233789 to be in her possession. Perusal of the supplementary charge-sheet reveals that this phone number was continuously used by the prosecutrix. She had contacted petitioner No.1 at 6.26 p.m. from that number. She was on internet at 7.03 p.m., 9.52 p.m. and 11.04 p.m., during the period when she was allegedly in unconscious state. Learned Trial Court did not consider the materials available on record. After viewing the footage from CCTV camera, it was clear that the complainant did not exit the restaurant in unconscious state. As per FSL report dated 7.4.2015, no alcohol was found in victim's blood sample. She was also in continuous touch from her mobile No.9540233789 with her husband and had made 31 calls to him during the relevant period. Merely because the petitioner No.2 had declined to participate in the TIP proceedings, no adverse view can be taken as he was shown at the police station. As per medical jurisprudence, the victim was not expected to be in intoxication state after consuming such a small quantity of vodka. Reliance has been placed on State TR. Insp. of Police Vs. Arun Kumar & Anr. Crl. A. 2602/2014.