Jitender Sethi, Senior Counsel with Mr. Hemant Gulati and Mr. Shobit Dimri, Advs v. STATE, NCT OF DELHI

Order

27th January, 2025 CRL.REV.P. 186/2023, Crl.M.As.4599-4600/2023 & 31196-97/2023 PRABHU DAYAL .....Petitioner Through: Mr. Jitender Sethi, Senior Counsel with Mr. Hemant Gulati and Mr. Shobit Dimri, Advs. versus STATE, NCT OF DELHI .....Respondent Through: Mr. Raghuinder Verma, APP for the State along with Insp. Satbir Singh, P.S. Jaitpur. Mr. H. S. Gautam and Ms. Neha Singh, Advocate for R-2 CORAM: HON'BLE MR. JUSTICE CHANDRA DHARI SINGH ORDER CHANDRA DHARI SINGH, J (Oral) 1. The instant revision petition is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter “Cr.P.C.”) seeking setting aside of the Order dated 13th March, 2020 and Order dated 25th August, 2022 qua the petitioner passed by the learned Additional Sessions Judge, South East District, New Delhi (hereinafter “ASJ”). 2.

The brief facts of the case are that the petitioner along with other co- accused entered the house of the prosecutrix and allegedly physically assaulted the prosecutrix and her family members. It is also alleged that the Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:06.02.2025 18:34:21 CRL.REV.P. 186/2023 Page 1 of 11 petitioner misbehaved with the prosecutrix and took away valuable articles from her house. 3. Accordingly, the instant FIR dated 7th May, 2016 was registered against the petitioner and other co-accused, and vide Order dated 13th March, 2020, the learned ASJ held that a prima facie case is made out against the petitioner under Sections 376D/323/354/427/452/395/509/149 of the Indian Penal Code, 1860 (hereinafter “IPC”). 4. Thereafter, vide Order dated 25th August, 2022, charges were framed against the petitioner along with other co-accused under Sections 323/354/376D/452/509/149/427/395 of the IPC. Aggrieved by the same, the instant revision petition has been filed by the petitioner. 5. Mr. Jitender Sethi, learned Senior Counsel appearing on behalf of the petitioner vehemently submitted that while framing of charges against the petitioner, the learned ASJ has not taken into consideration the material placed on record along with the chargesheet submitted by the Investigating Agency. 6. It is submitted that the charge under Section 376D of the IPC was framed against the petitioner merely on the ground that there are allegations made by the prosecutrix in the statement recorded under Section 161 and 164 of the Cr.P.C. It is further submitted that from a plain reading of the statements of the prosecutrix recorded under Section 161 and Section 164 of the Cr.P.C., it is clear that there is no allegation of commission of the offence of rape against the petitioner. 7. It is submitted that there is no role assigned to the petitioner with Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:06.02.2025 18:34:21 CRL.REV.P. 186/2023 Page 2 of 11 respect to the commission of the offence of rape to the prosecutrix by the petitioner. It is further submitted that as per the Section 164 statement, the prosecutrix has made specific allegations against the two other accused persons, namely, Ishwar Dayal and Deen Dayal, disclosing that they inserted their fingers in her private part, and that there are no allegations against the petitioner herein for the commission of offence punishable under Section 376D of the IPC. 8. It is submitted that there is no other material on the record which supports the allegations made against the petitioner for the commission of the offence under Section 376D of the IPC. 9. In view of the foregoing submissions, it is prayed that the said impugned order may be set aside or modified to the extent that the petitioner may not be charged for the commission of the offence under Section 376D of the IPC. 10. Per contra, learned counsel appearing on behalf of the prosecutrix submitted that the learned ASJ has framed charges against the present petitioner on the basis of the statements made by the prosecutrix under Section 161 and 164 of the Cr.P.C. It is duly conceded that in the aforesaid statements of the prosecutrix, there is no allegation against the present petitioner disclosing the commission of the offence of rape and that the only allegation against him is that he misbehaved with the prosecutrix. 11. Mr. Raghuinder Verma, learned APP appearing on behalf of the State, has also duly conceded that there are no allegations made against the present petitioner in the Statements of the prosecutrix recorded under Section 161 Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:06.02.2025 18:34:21 CRL.REV.P. 186/2023 Page 3 of 11 and 164 of the Cr.P.C., which point towards the commission of offence punishable under Section 376D of the IPC. 12. Heard learned counsel for the parties and perused the material placed on record. 13. Before adverting to the merits of the present case, it is important to discuss the settled law on the issue of framing of charges against the accused. In the case of Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547, the Hon’ble Supreme Court clarified the principle related to the framing of charges against the accused. The relevant portion of the judgment is quoted as under: “15. We may profitably, in this regard, refer to the judgment of in State of Bihar v. Ramesh Singh [State of this Court Bihar v. Ramesh Singh, (1977) 4 SCC 39 : 1977 SCC (Cri) 533 : AIR 1977 SC 2018] wherein this Court has laid down the principles relating to framing of charge and discharge as follows: (SCC pp. 41-42, para 4) to adduce are not “4. … Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the to be prosecutor proposes meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:06.02.2025 18:34:21 CRL.REV.P. 186/2023 Page 4 of 11 the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion 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. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in 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. … If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.” Signature Not Verified Digitally Signed By:PRAVEEN KUMAR BABBAR Signing Date:06.02.2025 18:34:21 CRL.REV.P. 186/2023 Page 5 of 11