KULDEEP Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of this revision, the accused petitioners have approached this Court for challenging the order dated 22.06.2016 passed by the learned Special Judge, POCSO Act Cases, Hanumangarh in Sessions Case No.11/2015 whereby, the trial court accepted the application submitted by the complainant respondent under Section 319 Cr.P.C. and directed summoning of petitioners as additional accused in the case to face trial with the charge-sheeted accused Rajesh.

(2.) Facts in brief are that the respondent No.2 Kamlesh lodged a typed report with the Superintendent of Police, Hanumangarh on 03. 12.2014 alleging inter alia that he is a labour by profession. On 23.11.2014 in the afternoon, when he reached home for having lunch, he saw the accused Kuldeep and Jaipal inside and were behaving indecenty with his minor daughter Sushri 'S' (hereinafter referred to as 'the victim') who was weeping. The accused ran away when he challenged them. The complainant made inquiry from his daughter, who confided in him that about six months ago, finding her alone in the house, Rajesh Meghwal came inside and after hurling threats to the family members, she was subjected to rape by Rajesh. He also prepared a video of this indecent activity in his mobile phone. Thereafter, whenever the victim was alone in the house, Rajesh would come and he would subject her to forcible sexual intercourse after giving her threats of making the indecent video recording public. About 10 days ago, on seeing the victim alone in the house, Kuldeep and Jaipal also came in and threatened that they too were having her indecent videos and would tarnish her image in the society by circulating it on internet. Under this threat, Kuldeep and Jaipal also subjected the victim to rape. On 23.11.2014 also, the accused were attempting to force themselves upon the victim when the complainant arrived and prevented them from achieving their vicious design. The complainant approached the family members of the accused and contacted their elders but he was threatened with dire consequences and was turned away without any consolation. On the basis of this report, an FIR No.415/2014 was registered at Police Station Tibbi for the offences under Sections 450 , 376(G) , 354 / 34 and Section 5/6 of the POCSO Act and investigation commenced. During the course of investigation, the victim's statement was recorded by the I.O. for the first time on 05.12.2014 wherein, she gave out her age to be 14 years and alleged that about six months ago, Rajesh entered into the house while she was alone and subjected her to rape. Thereafter, he was continuously threatening the victim regarding a video clipping recorded in his mobile and would often subject her to forcible sexual assault under the fear of making the recording public. About 10 days ago, Kuldeep and Jaipur also threatened and subjected her to rape. While the accused were in the process of ravishing her again, her father came home and on seeing him, the accused ran away. She told of the entire sequence of events to her father who lodged the report. She categorically stated that accused Kuldeep, Jaipal and Rajesh had subjected her to rape on 23.11.2014 and 10 days earlier also.

(3.) The investigating officer, after conducting investigation, filed a charge-sheet only against the accused Rajesh. As per the charge-sheet, Rajesh and the victim were indulged in a love affair. Rajesh had provided a mobile phone to the victim. Whenever the victim was alone, she would invite Rajesh and indulged in physical relations with him in the house. On a particular day, victim's mobile fell into her brother Vikram's hand whereupon, she told Rajesh of incident. Rajesh asked his cousin brother Kuldeep who was on friendly terms with Vikram and requested him to get the phone back from Vikram. Kuldeep advised Vikram not to raise any issue about the phone and also assured him that he would tell Rajesh not to keep in touch with the girl. However, after 5 to 6 days of discovering the phone, Vikram told his father (the complainant Kamlesh) of the relationship between Sushri 'S' and Rajesh whereupon, the complainant thrashed and chastised the victim. On the next day, Sushri 'S' while cleaning the lane, told Rajesh that the entire fault in making disclosure about their relationship was of Kuldeep resultantly, she had to suffer at the hands of her father. On this, Rajesh became enraged and hatched a plan to teach a lesson to Kuldeep. On 28.01.2011, Rajesh called Kuldeep and asked for his location. At that time, Kuldeep was in the market. Rajesh reached there on his motorcycle and then went away looking to the crowded area. Kuldeep apprehended that Rajesh might quarrel with him. A little later, Rajesh again located Kuldeep who was at the Bhagat Singh Chowk. Rajesh took Gagan with him and after arming himself with a sword nad gave a sword blow on Kuldeep who managed to catch the sword and in this process, two of his figures were cut. After the assault, Rajesh and Gagan escaped on their motorcycle. The family members of Kuldeep came to know of the assault. They, accompanied with witness Sonu, took Kuldeep to Tibbi Hospital. The police reached there for recording statement of Kuldeep who refused at that point of time and used abusive language for Sushri 'S' and Rajesh. Kuldeep called Kamlesh and advised him to file a case against Rajesh but he refused. Kuldeep was then referred to Hanumangarh Hospital from where, he was taken to Jaipur and was treated at Fortis Hospital. A sum of Rs.2,00,000/- was spent in his treatment at Jaipur. The family members of Kuldeep and Jaipal pressurised Kamlesh to lodge a case against Rajesh but Kamlesh refused. On this, family members of Kuldeep and Jaipal, approached Kamlesh and complained that Kuldeep had been assaulted because of the relations of his daughter with Rajesh and spoke bad words about Sushri 'S'. Kamlesh came to know that Kuldeep would be released from the hospital in a couple of days and might raise a ruckus on coming back. Fearing recrimination, he consulted with his relatives Harish, Ramsh and Amarchand. On 02.12.2014, Kuldeep returned home after being discharged from the hospital. Rajkumar and Sodhi Pal, who live in the same locality, intervened and tried to convince Kuldeep to settle the dispute but he did not accept the suggestion and assaulted these persons. A demand was made by Kuldeep's family members from the complainant to reimburse the money spent in his treatment of imputing that the entire root course of dispute was Sushri 'S'. The matter flared up on which, police was called. Thereafter, Kuldeep and Jaipal, etc. lodged a case against Rajesh and Gagan at the Police Station Tibbi. On the next day, the complainant, accompanied with his family member Rajkumar and other relatives, filed a complaint against Kuldeep and his family members at the Police Station Tibbi regarding threats and attempted assault. The complainant came to know that the name of Gagan has also been mentioned in the report filed by Kuldeep and that possibly the relation of Sushri 'S' and Rajesh would be exposed and their image would be tarnished in the society upon which, they lodged the complaint of the alleged sexual assault made on Sushri 'S' before the Superintendent of Police Hanumanarh in which, the names of Kuldeep and Jaipal were also introduced alongwith Rajesh levelling an allegation of gang-rape against all three. The I.O., upon concluding investigation, held that though the complainant had alleged gang-rape against Kuldeep, Jaipal as well as Rajesh but as a matter of fact, the facts collected by him indicated of long standing consensual sexual relationship between Rajesh and Sushri 'S'. However, consent was not relevant because Sushri 'S' was a minor. Kuldeep and Jaipal were working as the labours at the S.B. Resort on the relevant date and had never participated in the so-called sexual assault made upon Sushri 'S'. Accordingly, charge-sheet was filed against Rajesh Kumar alone for the offences under Sections 376(2)(i)(n) and 450 IPC and Section 3/4 of the POCSO Act. The trial court framed charges against the accused Rajesh and the proceedings were commenced. At the trial, statements of the first informant and the victim Sushri 'S' were recorded as PW-1 and PW-2 respectively whereafter, the prosecution moved an application under Section 319 Cr.P.C. seeking summoning of the petitioners to face trial as additional accused in the case. The said application was allowed by the order dated 22.06.2016 which is challenged in the instant revision.