Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.37098 of 2012 ====================================================== 1. Ravi Mahto, S/O Prabhu Mahto 2. Shambhu Mahto, S/O Swarth Mahto 3. Guddu Kumar @ Guddu Kr. Mahto, S/O Misri Mahto All Resident of Village - Gorai, P.S. - Chakmehsi, District- Samastipur Versus .... .... Petitioner/s 1. The State of Bihar 2. Guria Kumari, D/O Satya Narayan Paswan, Resident of Village - Gorai, P.S. - Chakmeshi, District- Samastipur .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 2 16-07-2013 Heard. This is a petition for quashing the order dated 13.07.2012 passed by the learned Special Judge S.C./S.T. Act,
Facts
Samastipur in S.T. No. 79 of 2012 arising out of Chakmehshi P.S. Case No. 97 of 2011 by which the petition dated 05.06.2012 filed on behalf of the petitioners for discharge has been rejected. The prosecution case as alleged in the First Information Report is that on 27.10.2011 at 9:00 P.M. informant at her Darbaza stated to the Police Officer that the petitioner Ravi Mahto tried to talk to her and used to call her on mobile and on the date of occurrence at 6:30 A.M. while she went to attend the call of nature, then three accused persons, namely, Ravi Mahto, Guddu Kumar and Shambhu Mahto caught hold Patna High Court Cr.Misc. No.37098 of 2012 (2) dt.16-07-2013 2 of her, pressed her mouth and all the three took her in the wheat field and there Ravi Mahto committed rape and Guddu Kumar and Shambhu Mahto caught hold of her hand and leg and pressed her mouth, she anyhow managed to cry then her Nani and younger brother came to the place of occurrence and the accused persons started fleeing away. On the fardbeyan, the First Information Report was lodged and after investigation police submitted charge-sheet, on which cognizance was taken. After taking cognizance the petitioners filed a petition for discharge on the ground that except the complainant there is no eye witness and the medical evidence does not establish rape. The Court after perusal of the records has mentioned that the names of the petitioners find place in the First Information Report and the informant in her statement under Section 164 Cr.P.C. has given the vivid description of the offence and has stated about committing rape and hence, there is sufficient material in the case diary to discharge the petitioner, is not proper. Learned counsel for the petitioners has challenged the impugned order on the ground that the informant has alleged in the case diary that the petitioner no. 1 used to contact Patna High Court Cr.Misc. No.37098 of 2012 (2) dt.16-07-2013 3 through mobile whereas during investigation it has been found that the informant also used to talk to him on mobile. It is further stated that medical evidence does not corroborate the allegation of rape and there is no independent witness. The informant is a lady of questionable character and hence, the order impugned is not sustainable.
Legal Reasoning
the allegation of rape and hence, found that a prima facie case is made out. However, the contention of the petitioners is that Patna High Court Cr.Misc. No.37098 of 2012 (2) dt.16-07-2013 4 the learned Magistrate has not given details of the allegation and has not given reason for discarding the evidence as per the call details of the petitioners and the informant as well as the evidence of other witnesses and the character of the informant. However, this Court is of the opinion that at the stage of framing of the charge or considering the discharge petition under Section 227 Cr.P.C., the Magistrate is required to satisfy that there is no sufficient ground for discharge. However, taking into consideration the facts that the informant herself has supported the prosecution case with specific allegation that she was forcibly taken by accused persons lifting her from place where she went to attend the call of nature to the wheat field and raped her by pressing her mouth and has given the vivid description to the occurrence which itself is sufficient to consider about the discharge of the petitioners. The Court at this stage neither can meticulously examine the material nor appreciate the evidence nor it can say that whether the evidence collected is false or true. The court at this stage has only to look into the material on the face value of the statement on record as whether the allegation made prima facie makes out an offence. Patna High Court Cr.Misc. No.37098 of 2012 (2) dt.16-07-2013 5 However, the learned counsel for the petitioners has relied upon a decision in the case of Pradeep Kumar Vs. The State of Bihar reported in 2007(4) PLJR 64, however, this was a case in which the rape alleged to have been committed on promise to marry but the promise was not acted upon subsequently. In that circumstance the question arises whether the consent given by the informant to the accused was a mere hoax or a misconception of fact. In that circumstance the case was remanded by the Apex Court to the lower court to see prima facie on attaining circumstance whether consent was a hoax at the out set or was misconception of fact. However, there is no such allegation that accused committed rape in view of her consent and hence, the decision relied upon is not applicable to the facts and circumstances of this case. However, it is well settled by the Apex Court as well as this Court that at the stage of framing of charge, the charge can be framed even on grave suspicion. The matrix to be applied at the stage of framing of the charge and the matrix to be applied at the stage of the final decision after evidence in trial at the fag end of the trial is totally different. It is well settled that charge can be framed on grave suspicion but a person cannot be convicted on the grave suspicion but the gist Patna High Court Cr.Misc. No.37098 of 2012 (2) dt.16-07-2013 6 against the accused must be proved by cogent, reliable and unimpeachable evidence. However, grave suspicion may be, it cannot take the place to prove at the fag end of trial. Hence, the matrix to be applied at this stage and the charge can be framed under the facts and circumstances of the case when the victim herself is specifically stated that she was raped by these petitioners which prima facie make out an offence. Hence, I do not think it proper at this stage to interfere with the order and hence, the petition is hereby dismissed. However, the order shall not prejudice the petitioners at the stage of trial. Kundan/- (Gopal Prasad, J)
Arguments
Learned counsel for the petitioners, however, has relied upon a decision in the case of Pradeep Kumar Vs. The State of Bihar reported in 2007(4) PLJR 64. It is further stated that the order has been passed mechanically and the Magistrate has neither taken into consideration the aforesaid evidence nor referred these materials in the impugned order nor given any reason for discarding the offence while considering those materials in the discharge petition. However, from perusal of the impugned order, it is apparent that the learned Magistrate has taken into consideration the fact that the names of the petitioners find place in the First Information Report and the statement of the informant as well as the statement under Section 164 of the Cr.P.C. in which she has given vivid description supporting