ASHOK KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The accused-petitioner has filed this Criminal Misc.Petition under Section 482 Cr.P.C. against the order dated 12.04.2014 passed by the Additional Sessions Judge, Gangapurcity (Sawaimadhopur) in Sessions Case No.14/2012 whereby the learned trial Court has dismissed the application filed by the petitioner under Section 216 Cr.P.C. with a prayer to alter the charge for offence under Section 354 IPC from charge for offence under Section 376 read with Section 511 IPC.

(3.) Brief relevant facts for the disposal of this petition are that FIR No.11/2002 for offence under Section 376 read with Section 511 IPC came to be registered against the petitioner at Police Station Bamanwas (District Sawaimadhopur) and after a prolonged investigation charge-sheet for offences under Sections 354 and 323 IPC was filed against him in the Court of Judicial Magistrate, Bamanwas (District Sawaimadhopur) and cognizance was taken by the Court for the aforesaid offences. A protest petition was filed by the complainant with the averment that the charge-sheet has wrongly been filed for the offences under Sections 354 and 323 IPC whereas the evidence collected during investigation disclosed commission of offence under Section 376 read with Section 511 IPC by the petitioner but the same was dismissed by the Court. That order was challenged by the complainant by way of revision petition before the Additional Sessions Judge, Gangapurcity but it was dismissed by the revisional Court vide order dated 21.9.2008. The order dated 21.9.2008 was further challenged by the complainant before this Court under Section 482 Cr.P.C. by way of S.B.Criminal Misc.Petition No.2317/2008 but the same was also dismissed but with liberty to the complainant to file application under Section 216 Cr.P.C. at an appropriate stage. In the meanwhile, particulars of charge for offences under Sections 354 and 323 IPC were read over to petitioner and statements of three prosecution witnesses including that of prosecutrix was recorded by the aforesaid Court. At that stage of the proceedings, application under Section 216 Cr.P.C. was filed on behalf of the complainant with a prayer to alter charge from offence under Section 354 IPC for offence punishable under Section 376/511 IPC and the same was allowed by the Court vide order dated 21.2.2012 and cognizance was taken against the petitioner for offence under Section 376/511 IPC and case was ordered to be committed to Sessions Judge. The order dated 21.02.2012 was challenged by the petitioner by way of Criminal Revision Petition No.23/2012 before the Additional Sessions Judge, Gangapurcity but the same was dismissed by the revisional Court vide order dated 16.1.2013. The order dated 21.2.2012 as well as order dated 16.1.2013 were challenged by the petitioner before this Court under Section 482 Cr.P.C. by way of S.B.Criminal Misc.Petition No.757/2013. In the meanwhile, after committal of the case charge for offence under Section 376/511 was framed against the petitioner by the Court of Additional Sessions Judge, Gangapurcity vide order dated 12.11.2013 and the same was also challenged by the petitioner before this Court under Section 397 read with Section 401 Cr.P.C. by way of S.B.Criminal Revision Petition No.168/2014. Both of the aforesaid petitions i.e.S.B.Criminal Misc.Petition No.757/2013 and S.B.Criminal Revision Petition No.168/2014 were heard together by the Co-ordinate Bench and the same were disposed of vide order dated 12.02.2014 with liberty to the petitioner to submit application under Section 216 Cr.P.C. and the trial Court was directed to decide the same in the light of judgment of Tarkeshwar Sahu Vs. State of Bihar (Now Jharkhand), 2006 8 SCC 560. Thereafter, the petitioner moved an application under Section 216 Cr.P.C. on 3.3.2014 with a prayer to discharge the petitioner from the offences for which charge-sheet has been filed against him but the learned trial Court dismissed the same vide impugned order dated 3.6.2014. It is to be noted that after the committal of the case to the Court of Additional Sessions Judge, Gangapurcity and framing of charge for offence under Section 376/511 IPC vide order dated 12.11.2013, statement of any of the prosecution witnesses has not been recorded by the trial Court.