Pushpraj Dangi vs The State Of Madhya Pradesh

1 CRA-14633-2023

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE SANJAY DWIVEDI ON THE 13th OF DECEMBER, 2024 CRA No.14633 of 2023 Pushpraj Dangi and another Versus The State of M.P. and another ................................................................................................................................................ Appearance : Shri Manish Datt - Senior Advocate with Shri Eshaan Datt - Advocate for the appellants. Shri Tapan Bathre - Panel Lawyer for the respondent/State. ................................................................................................................................................ Reserved on : 04.09.2024 Pronounced on : 13.12.2024 ORDER

This criminal appeal is arising out of the order dated 28.06.2023 (Annexure-A/2) passed by the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity the 'SC/ST Act'), Sagar, in Special Case No.451/2021, whereby certain charges have been framed against each of the appellants under Sections 294, 384/34, 376(2)(n), 376(D) and 506-II of the Indian Penal Code and Sections 3(1)(w)(ii), 3(1)(d), 3(2)(v-a) and 3(2)(v) of the SC/ST Act.

2. As per the facts of the case, the victim- "X" (hereinafter referred as to the 'victim') has submitted a written complaint on 25.08.2021 at Police Station Rehli, District Sagar, alleging that she is a housewife, her marriage was solemnized in the year 2012 and from the said wedlock, 2 CRA-14633-2023

she gave birth to two children.

(2.1) The 'victim' came into contact with accused/appellant No.1 Pushpraj Dangi through facebook, there used to be conversation between them on phone and they were in a relationship for almost four years.

(2.2) Some time in the year 2016, the victim was called by accused/appellant Pushpraj Dangi to Kakroniya, District Sagar, and thereafter the said accused/appellant started demanding money from the 'victim' saying that he has her photographs and if she would not give him money, then he would show those photographs to her husband and would also defame her.

(2.3) It is alleged that the 'victim' under the fear and threat given by the said accused/appellant started giving money and in first installment she gave Rs.30,000/- to him. The victim also requested the said accused/appellant to end the relationship and not to contact her, but he did not accept her request.

(2.4) The 'victim' thereafter shifted to the house of her relative on 23.08.2021 in village Chandpur along with her husband and children and on 24.08.2021 at about 04:00 p.m., when the 'victim' went to Ghatadevi Toriya at a distance of about 500 meters from the house of her relative, the accused/appellants herein met her on a motorcycle and accused/appellant Pushpraj Dangi threatened her and asked why she stopped talking to him. Although, the 'victim' refused to talk to him and opposed his conduct, but both the accused/appellants with ill-will caught hold of her and hurled filthy abuses and attempted to touch her private 3 CRA-14633-2023

parts and as such, outraged her modesty.

(2.5) The 'victim' thereafter called her husband on phone and when he came on spot, the accused/appellants fled away on their motorcycle intimidating them to face dire consequences hurling filthy abuses based on their caste. The 'victim' narrated the whole story to her husband and then they made a complaint to the police and thereafter aforesaid offences were registered against the present accused/appellants.

(2.6) Charge-sheet was filed on 13.12.2021. The 'victim' on 24.03.2022, made a complaint to the Superintendent of Police Sagar alleging inter alia that some time in the year 2019, the accused/appellants took her along with them in a room and mixed some stupefying substance in the drinking water and after consuming the same, she got unconscious and thereafter, the accused/appellants forcibly raped her one by one and made video clippings thereof on their mobile phones and thereafter giving threat to defame her, they sexually exploited her many times. It is alleged by the 'victim' that she has been subjected to rape by the accused/appellants many times at different places. Thereafter, statement of the 'victim' was recorded and she was got medically examined and further investigation was carried out by the police.

(2.7) Thereafter, a supplementary charge-sheet was also filed and on the basis of statement made by the 'victim' under Section 161 of Cr.P.C., offence of Sections 376 and 376(2)(n) of IPC and Sections 3(1)(w)(i) and 3(1)(w)(ii) and 3(2)(v) of the Atrocities were added.

(2.8) The accused/appellants apprehending their arrest filed a bail 4 CRA-14633-2023

application before the trial Court, but since the same got rejected, therefore, they approached this Court by filing a bail application i.e. Criminal Appeal No.8350 of 2022 and the Court vide order dated 09.11.2022 has granted anticipatory bail to the present accused/appellants. Thereafter, a complete charge-sheet was filed in the trial Court, which is available on record as Annexure-A/4, and the matter was committed and the case was registered vide Special Case No.451/2021. Hence, this appeal.

3. Shri Manish Datt, learned senior counsel appearing for the appellants has submitted that the present appellants are challenging the order of framing of charge mainly on the ground that no cogent and plausible material to substantiate the aforesaid offences has been produced by the prosecution and there is inordinate delay in launching the prosecution against the present appellants for which no sufficient explanation is given. As such, it is clear that a false incident has been narrated by the 'victim' just to implicate the present appellants in the alleged offence. It is also submitted by the counsel for the appellants that the 'victim' is a married lady, having two children and by misusing the provision of SC/ST Act, she is trying to implicate the present appellants on the basis of frivolous and vexatious allegations. Therefore, this appeal has been filed by the present appellants challenging the order of framing of charge saying that on the basis of a false and concocted story without there being any proper evidence, the complaint has been filed against them and as such, the order of framing charges against the present appellants deserves to be quashed.

4. In support of his submissions, the counsel for the appellants has 5 CRA-14633-2023

placed reliance upon several judgments on this issue, especially in a case reported in AIR 2008 SC 767 parties being Sanapareddy Maheedhar Seshagiri vs. State of Andhra Pradesh saying that it is a case of malicious prosecution and on the basis of false allegations, a complaint has been made by the 'victim' just to ruin their future. Even at the time of framing of charge, according to the accused/appellants, the trial Court failed to see that the material produced by the prosecution does not constitute any such offence which has been registered against the accused/appellants and as such, they are seeking quashing of order dated 28.06.2023 (Annexure-A/2) whereby charges have been framed against them.

5. Although, in the instant appeal, the appellants have sought quashing of order dated 28.06.2023 passed by the trial Court framing charges against them but in a relief clause, they have not sought quashing of the order passed by the trial Court on 28.06.2023 exercising the power provided under Section 228 of the Cr.P.C. and framed charges, however claimed that all the proceedings initiated against the appellants in pursuance of Crime No.633/2021 be quashed.

6. Moreover, considering the existing factual circumstances and the averments made in the memo of appeal, this appeal is against the order of framing of charge dated 28.06.2023 passed by the trial Court in a pending Special Sessions Case No.451/2021.

7. The counsel for the appellants has given a list of cases on which he has placed reliance viz. (1990) 4 SCC 76 (Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya and others) and other connected cases, (2019) 7 SCC 148 (Asim Shariff v. National 6 CRA-14633-2023

Investigation Agency), (2022) 2012 SCC 657 (Ghulam Hassan Beigh v. Mohammad Maqbool Magrey and others), (2019) 16 SCC 547 (Dipakbhai Jagdishchandra Patel v. State of Gujrat and another), (1998) 5 SCC 749 (Pepsi Foods Ltd. And another v. Special Judicial Magistrate and others), (1979) 3 SCC 4 (Union of India v. Prafulla Kumar Samal and another), (1972) 3 SCC 282 (Century Spinning and Manufacturing Co. Ltd. And others v. State of Maharashtra) and 2023 LiveLaw (SC) 613 (Mahmood Ali & Ors. v. State of U.P. & Ors.).

8. In a case of Niranjan Singh Karam Singh Punjabi (supra), the Supreme Court has considered the scope and ambit of word 'consideration' by the trial Court at the stage of exercising the power provided under Sections 227 and 228 of the Code of Criminal Procedure and observed as under:-

"6. The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. Can he marshal the evidence found on the record of the case and the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weight the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh (1977) 4 SCC 39 this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If the evidence 7 CRA-14633-2023

which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross- examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In union of India v. Prafulla Kumar Samal (supra) this Court after considering the scope of Section 227 observed that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deduced as under;- (SCC p. 9, para 10)

"(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weight the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial."".

9. In view of the aforesaid, it is clear that the test to determine a 8 CRA-14633-2023

prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application and on the basis of material available, if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused and it is also observed by the Supreme Court that the Court should not act as a post office while exercising the power provided under Section 227 of Cr.P.C.

10. In a case of Asim Shariff (supra), the Supreme Court has again considered the scope of Sections 227 and 228 of Cr.P.C. and observed as under:-

"18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the court is not supposed to hold a mini trial by marshalling the evidence on record."

In the said case, the Supreme Court has further observed that the Court while considering the application of Section 227 of Cr.P.C. has to examine the material produced by the prosecution with the charge-sheet and after examining the same, if the Court finds grave suspicion against the accused, it can discharge him.

9 CRA-14633-2023

11. In case of Ghulam Hassan Beigh (supra), the Supreme Court has observed as under:-

"21. This Court in Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] considered the scope of enquiry a Judge is required to make while considering the question of framing of charges. After an exhaustive survey of the case law on the point, this Court, in para 10 of the judgment, laid down the following principles : (SCC p. 9)

"10. ... (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.""

In the said case, the Supreme Court relying upon the earlier judgments of the Supreme Court on the same issue has reiterated the same view that if after considering the material produced by the 10 CRA-14633-2023

prosecution, the court finds grave suspicion against the accused, then it can discharge him.

12. Further in case of Dipakbhai Jagdishchandra Patel (supra), the Supreme Court has observed as under:-

"16. In Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609 : AIR 1979 SC 366], after survey of case law, this is what the Court has laid down: (SCC p. 9, para 10)

"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a 11 CRA-14633-2023

trial.""

The Supreme Court in this case also has relied upon the view taken in case of Prafulla Kumar Sama (supra) and reiterated the same view as has been taken in the abovecited cases.

13. However, in a case of Pepsi Foods Ltd. (supra), the Supreme Court has observed as under:-

"22. It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : JT (1990) 4 SC 650] this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to.

23. In Waryam Singh v. Amarnath [AIR 1954 SC 215 : 1954 SCR 565] this Court considered the scope of Article 227. It was held that the High Court has not only administrative superintendence over the 12 CRA-14633-2023

subordinate courts and tribunals but it has also the power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [AIR 1951 Cal 193] where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.

24. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta [(1975) 1 SCC 858 : AIR 1975 SC 1297] this Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not, while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate court or tribunal and that its function was limited to seeing that the subordinate court or tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or reappreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, "as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings". The Court referred with approval the dictum of Morris, L.J. in R. v. Northumberland Compensation Appeal Tribunal [(1952) 1 All ER 122] .

25. In Nagendra Nath Bora v. Commr. of Hills Division [AIR 1958 SC 398 : 1958 SCR 1240] this Court observed as under:

"It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi- judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority."

26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under 13 CRA-14633-2023

Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.

27. We have not been able to understand as to why it was necessary for the appellants to implead the first respondent as a party to the proceedings. There are no allegations of personal bias against the presiding officer. A court is not to be equated with a tribunal exercising quasi-judicial powers. We would, therefore, strike out the name of the first respondent from the array of the parties.

28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

In this case, the Supreme Court has observed that the accused can be acquitted by the court at any stage of the case and accused can approach the High Court for quashing the proceeding by filing a petition under Section 482 of Cr.P.C. and also under Article 227 of the Constitution of India.

14. In a case of Prafulla Kumar Samal (supra), the Supreme Court has taken the same view as has been taken in abovecited cases and 14 CRA-14633-2023

observed that in a petition of Section 227 of Cr.P.C. the accused can seek quashing of charges framed against him.

15. In the case of Century Spinning and Manufacturing Co. Ltd. (supra), it is observed by the Supreme Court that the Court can discharge the accused at any stage of the case if after appreciating the material produced by the prosecution it is found that the charges are groundless.

16. Further, in the case of Mahmood Ali (supra), the Supreme Court has reiterated the powers of the High Court provided under Section 482 of the Code of Criminal Procedure and Article 227 of the Constitution of India. The relevant paragraph is as under:-

"12. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage 15 CRA-14633-2023

of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."

17. This Court has no hesitation to say that the Court can exercise the power for quashing the proceeding at any stage of the trial, but for that, the Court should have sufficient reason to do so. Here in this case, this is an appeal challenging the order passed by the trial Court at the time of framing of charges exercising the powers provided under Section 228 of Cr.P.C. and at the same time, it is to see whether the power provided under Section 227 of the Cr.P.C. can be exercised to discharge the accused considering the material placed before the Court. Further, this Court has to see whether the trial Court had an occasion to discharge the accused under Section 227 of Cr.P.C. while framing charges.

18. However, the submissions made by the counsel for the appellants and the cases relied upon by him is an indication to take the Court into a field of suspicion against the accused so that the Court can discharge them in view of the legal position as has been laid down by the Supreme Court in number of cases on which the counsel for the appellants has placed reliance.

19. I have considered the contents of FIR and the material collected by the prosecution during the course of investigation and after considering the same, this Court is of the opinion that though the whole incident as narrated by the 'victim' creates some suspicion that as to why she has not approached the police in time, but at the same time, the 16 CRA-14633-2023

evidence collected by the prosecution demands its appreciation so as to prove the correctness of the same. There was a money transaction between the accused/ appellant and the 'victim' and the same was done through bank and evidence in this regard has to be examined by the Court.

20. However, the story as narrated by the 'victim' and projected by the prosecution is that at the first instance, when first report was made to the police, there was no allegation of commission of rape. The offence under Section 354 of I.P.C. was registered on the basis of her first statement recorded under Section 161 of Cr.P.C. dated 27.08.2021. Although in that statement, she has not explained anything about commission of rape, but later on, developing the story, she made a new complaint to the police on 21.03.2022, in which, she has narrated about commission of rape. The second statement of 161 was recorded on 06.04.2022 and again 161 statement was recorded on 12.07.2022, as such, the police recorded the 161 statement of the 'victim' four times.

21. The statement of 164 of the 'victim' was recorded on 31.08.2021, but the incident of 2021 was not disclosed by her in her statement. However, taking somersault by the 'victim'; recording her 161 statement four times; and in 164 statement not disclosing the incident of commission of rape creates grave suspicion against the accused/appellants and the conduct of the 'victim' that too supported by the prosecution, not giving any explanation for recording her 161 statement time and again creates doubt that the 'victim' is not narrating the correct story to the police and trying to implicate the appellants in the alleged crime.

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22. Considering the constant view of the Supreme Court in the cases relied upon by the counsel for the appellants, in my opinion, the trial Court at the time of framing of charges has not considered all these aspects and it has not applied its mind judiciously whereas it made sift the evidence for the limited purpose so as to form an opinion whether prima facie case is made out against the accused/appellants on the basis of material produced by the prosecution, but at the same time, the Court has to consider whether the material placed before it discloses grave suspicion against the accused or not and that aspect is completely missing from the order of the trial Court. Considering the overall circumstances, in my opinion, it is a case in which the conduct of the 'victim' creates doubt upon her story and it discloses grave suspicion against the accused/appellants and as such, it appears to be a malicious prosecution as only on the basis of material collected, charges levelled against the appellants just to drag them in a prosecution, but they are to be discharged.

23. Under such circumstances, the order passed by the trial Court dated 28.06.2023 framing charges against the appellants is only on the basis of suspicion created against them and the story of the 'victim' creates doubt. Therefore, the order dated 28.06.2023 is hereby quashed. The offence registered against the present appellants vide Crime No.633/2021 is accordingly quashed.

24. Ex consequentia, the appeal is allowed.

(SANJAY DWIVEDI) JUDGE ac/-

ANIL CHOUDHARY 2024.12.16 12:24:59 +05'30'