1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT Rajendra & State of Rajasthan S.B. CRIMINAL REVISION PETITION No.1440/09 S.B. Criminal Revision Petition Under Section 397 and 401 of Criminal Procedure Code Date of Judgment :: 23.10.2009 HON'BLE MR.JUSTICE R.S. CHAUHAN Reportable Mr. Umesh Vyas for the petitioner. Mrs. Alka Bhatnagar, PP for the State. The petitioner has challenged the order dated 28.08.2009 passed by the Addl. District & Sessions Judge Bandikui (Dausa), whereby the learned Judge has framed charges for offences under Sections 363, 366A and 376 IPC. Mr. Umesh Vyas, the learned counsel for the petitioner, has contended that according to the medical evidence, the prosecutrix is between 17 to 19 years. Secondly, in her statement, under Section 161 Cr.P.C, she did not mention anything about the commission of rape, except two lines which seem to be added later on. Furthermore, she clearly states that she had left her house while other members of the family were 2 fast asleep. Thirdly, in her statement, under Section 164 Cr.P.C., she does not utter a single word about the commission of rape upon her by the petitioner. Moreover, she clearly states that she had gone with the petitioner out of her own volition and of her free will. Therefore, clearly this is a case of consent and a case of elopement, rather than a case of kidnapping and of rape. On the other hand, Mrs. Alka Bhatnagar, the learned Public Prosecutor, has contended that according to the evidence, the prosecutrix happens to be a minor. Therefore, question of “consent” and “free will” is irrelevant in this case. Hence, she has supported the impugned order. It is, indeed, a settled principle of law that this Court would not interfere with the charge order unless this Court finds that the learned trial Judge has failed to exercise a power vested in it. At the time of framing charge, the learned trial Court should sift through the evidence to see if a strong prima facie case is made out against the accused. A bare perusal of order dated 28.08.2009 clearly shows that the learned trial Judge has not considered the relevant evidence which was readily available in the record and which was in favour of the petitioner. According to the medical evidence, the prosecutrix is between 17 to 19 years. It is, indeed, trite to state that in case two views are possible of a piece of evidence, then a view in favour of the accused should be accepted. Thus, according to the medical report, the prosecutrix 3 is not a minor. Moreover, according to her, she had fallen in love with the petitioner. According to her statement under Section 161 Cr.P.C., she had left her house with the petitioner in the dead of the night. According to her statement, under Section 164 Cr.P.C. she had gone with the petitioner out of her own free will. Therefore, it is clearly a case of elopement, than a case of kidnapping. Hence, no case is made out for offences under Sections 363, 366A IPC. Furthermore, a bare perusal of the prosecutrix's statement under Section 161 Cr.P.C. clearly shows that the lines about rape were added later on as they are in different handwriting from the rest of the statement. In fact, in case the prosecutrix were raped, she would have said so in her statement under Section 164 Cr.P.C. But she is conspicuously silent on the said point. Lastly, according to her medical report, her hymen was torn and healed; there was no injury marks on her private parts. Thus, prima facie, no case is made out for offence under Section 376 IPC. Before parting with this case, this Court would like to point out that charges should not be framed in a meachanical manner. Framing of charges is a serious judicial function. For, it not only commences the trial, but most importantly adversely affects the life and liberty of a person. Facing a criminal trial is not an evening promenade. If affects the social reputation, the mental 4 peace, the financial condition, the physical being of the accused. Thus, charges should be framed after exercising due care and caution. As far back as 1979, in the case of Union of India V/s. Prafulla Kumar Samal, [(1979) 3 SCC 4], the Hon'ble Supreme Court had laid down certain principles which should be kept in mind while framing the charges. The Apex Court observed as under : [(1) That the Judge while considering the question of framing the charges under Section 27 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 of determine a prima facie case would naturally depend upon the facts of each cash 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 mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents 5 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 inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Recently in the case of Yogesh @ Sachin Jagdish Joshi V/s. State of Maharashtra [JT 2008 (6) SC 299], the Hon'ble Apex Court held as under : - 15. It is trite that the words “not sufficient ground for proceeding against the accused” appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weight the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable 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 gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See : State of Bihar Vs. Ramesh Singh and Prafulla Kumar Samal (supra)] Moreover, Sections 227 and 228 Cr.P.C., together prescribe that the charge should be framed after hearing the prosecution, the accused and after considering “the record of the case”. The record of the case would also include any evidence 6 which may exists in favour of the accused. Hence, the said evidence, too, should be considered and discussed. Recently, in the case of State of M.P. V/s. Sheetla Sahai & Ors. [JT 2009 (10) SC 388] the Apex Court observed as under : But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the charge-sheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour of the accused. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the Court shall not put the accused to harassment by asking him to face a trial. However, in the present case the learned Judge has not discussed the exculpatory statement made by the prosecutrix under Section 164 Cr.P.C. Therefore, the learned Judge has failed to exercise a jurisdiction vested in him. 7 For the reasons stated above, this revision petition is hereby allowed and the order dated 28.08.2009 is, hereby, quashed and set aside. [R.S.CHAUHAN]J A.Asopa/