MITTHU @ MODIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This petition u/s. 482 Cr.RC. has been filed by the accused Mitthu @ Modiya challenging the order dated 27.7.2007 by which charges against him for offence u/s. 376, 326 and 323 IPC has been framed.

(2.) Contention of Shri D.V. Tholia, learned counsel for the petitioner is that the learned Additional Sessions Judge erred in law in mechanically framing charges against the accused-petitioner for those offences. Learned counsel referred to the first information report that was lodged by prosecutrix Smt. Mohra Devi. In the FIR, the allegation against the accused-petitioner was of biting the ear of husband of the prosecutrix and on that basis case against petitioner u/s. 326 and 457 of IPC was registered. There was no allegation of committing rape upon the prosecutrix by the accused in the FIR, which was registered on 21.2.2007. On the following day i.e. 22.2.07 when the statement of prosecutrix u/s. 161 Cr.RC. was recorded even therein also no allegation of rape was levelled by her. The dispute is between the husband of the prosecutrix and the petitioner on payment of certain unpaid agriculture wages. Learned counsel submitted that the medical examination of the prosecution was got done belatedly on 10.3.2007, which does not remotely suggest possible rape upon her. The allegation of rape appeared for the first time in the statement of prosecutrix recorded u/s. 164 of Cr.P.C. on 21.3.07, but even that allegation was made by her so belatedly. The learned trial court should have judiciously apply its mind to the facts of the given case so as to arrive at independent conclusion whether or not the case was of worth framing charge in the face of so much of improvements in the original version, which is not otherwise supported even by the medical examination. Learned counsel argued that even the charges u/s. 326 and 323 could not have been made out, but according to him the matter hardly travel u/s. 323 and 235 of IPC for biting the ear of the husband of prosecutrix.

(3.) Shri Paresh Choudhary, learned Public Prosecutor opposed the misc. petition.