AEHSAN MOHD @ AMIR KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Accused-Petitioner has preferred this revision petition under Section 397 read with Section 401 Cr.P.C. to challenge order dated 21st of November 2017, passed by Addl. Sessions Judge (Women Atrocities Cases) , Bikaner (for short, 'learned trial Court') , framing charges against him for offences punishable under Sections 457, 376/511, 354 and 354-A IPC.

(2.) Briefly stated, the facts of the case are that second respondent complainant submitted a written report before SHO, Police Station Gangashahar, Bikaner on 28th of May 2016 that on last Friday during night, when she was sleeping at home with her four children, one incumbent made lurking house trespass and tried to molest her besides out-raising her modesty. In the report, complainant has not named the accused but made specific allegation that he is son of Babu Gurjar. Attributing criminal antecedents to both Babu Gurjar and his son, the complainant has specifically mentioned in the report that her husband is a driver and usually remain out of Bikaner in discharge of his duties. The complainant has also expressed apprehension that there is imminent threat to her from Babu Gurjar and his son, both of whom are known to her but for name of the accused/petitioner. On the basis of report, on the same day FIR, is registered for offence under Sections 457, 376/511 and 354 IPC and investigation commenced. After investigation, police submitted charge-sheet in the matter. During investigation, statements of complainant prosecutrix were recorded under Section 161 Cr.P.C. and further her statements under Section 164 Cr.P.C. were also recorded by the Magistrate. Apart from the statements of prosecutrix, statements of her husband Heeralal, her daughter Kumari Chanda were also recorded and police also prepared siteplan. The learned trial Court, then, proceeded to take cognizance against the petitioner for aforesaid offences. Later on, arguments were heard for the purpose of framing charge and by the impugned order charges are framed against the petitioner for offence under Section 457, 376/511, 354 & 354A IPC.

(3.) Mr. Vineet Jain, learned counsel for the petitioner, submits that the learned trial Court has not at all cared to examine prima facie case against the petitioner for framing charges. It is argued by learned counsel that as per site-plan, the place, where the alleged offences are committed by the petitioner, is outside the dwelling house of complainant, and therefore, prima facie, offence under Section 457 IPC is not made out. Learned counsel would contend that essential ingredients for constituting offence under Section 457 IPC, namely, lurking house trespass by night, or house breaking by night, is conspicuously missing in the matter, but the learned trial Court has completely overlooked the site plan and other material while framing charge for the said offence. Mr. Jain, learned counsel, has also argued that other offence under Section 376/511 IPC, for which charge is framed against the petitioner, is also not based on prima facie satisfaction of the learned trial Court. It is contended by learned counsel that complainant prosecutrix has projected different versions about alleged incident in the FIR, her statements under Section 161 Cr.P.C. and statements recorded under Section 164 Cr.P.C. Learned counsel has also argued that even if inconsistencies in all the three versions of the complainant are overlooked, sans attribution of any overtact or specific allegation to commit sexual intercourse with her by the petitioner, prima facie, offence under Section 376/511 IPC is also not made out. Mr. Jain has also argued that a cumulative reading of all the three versions of the prosecutrix are prima facie not satisfying the requirements envisaged under Section 228 Cr.P.C. for framing aforesaid charge against the petitioner. In support of his arguments, learned counsel has placed reliance on a decision of Supreme Court in State of Rajasthan Vs. Sri Chand, (2015) 11 SCC 229.