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HIMACHAL PRADESH HIGH COURT
Rakesh Kainthla, J.
Rajeshwar Kumar – Petitioner
versus
State of Himachal Pradesh and Anr. – Respondents
Criminal Revision No.386 of 2019
Decided on 12.1.2024
Counsel for the Parties:
For the Petitioner:Mr. Sanjeev K. Suri, Advocate
For the Respondent No.1:Mr. Jitender Sharma, Deputy Advocate General
the Respondent No.2:Mr. Ishan Sharma, Advocate
IMPORTANT POINT
Revisional court cannot sit as an appellate court and start appreciating evidence by finding inconsistency in statement of witnesses.
Headnote:
Indian Penal Code, 1860 – Sections 366 and 376 read with Section 4 of Protection of Children from Sexual Offences Act, 2012 – Criminal Procedure Code, 1973 – Sections 227, 228 and 397 – Kidnapping and rape of minor girl – Framing of charge – Victim had named petitioner in her statement recorded under Section 164 Cr.P.C. – Victim had specifically stated on oath that petitioner had asked her to board vehicle and raped her inside vehicle – This statement cannot be discarded because even if it is assumed without deciding a statement recorded contrary to law cannot be ignored – Trial Court was justified in relying upon statement made by victim for framing charge against accused – Revisional court cannot sit as an appellate court and start appreciating evidence by finding inconsistency in statement of witnesses and it is not legally permissible – High Courts ought to be cognizant of fact that trial court was dealing with application for discharge – There is no infirmity in order passed by Trial Court. (Paras 10, 12, 14, 15 and 16)
Result: Criminal Revision Petition dismissed.
JUDGMENT
Rakesh Kainthla, J.—The informant filed a complaint to the police that his daughter was studying in 9th class. She had been missing since 16.09.2014. The police registered an FIR for the commission of an offence punishable under Section 363 of IPC. The date of the victim’s birth was found to be 10.01.1998 as per the school record and she was aged 16 years on the date of the incident. The victim’s mother said that the victim was in touch with Sunny and he might have kidnapped the victim. The police searched for Sunny, who disclosed that Vijay had kidnapped the victim and she was residing with him in his home. The Police searched for the victim and went to the house of Vijay, where his father was present. However, the father of Sunny concealed the victim on the arrival of the Police and did not reveal her whereabouts. The victim was recovered from Village Majhin. The police arrested Vijay Kumar. The victim was medically examined. The Medical Officer revealed that the possibility of sexual intercourse could not be ruled out. Vijay revealed on enquiry that he knew the victim. The victim was taken by Amit in his truck from Rampur to Narkanda and thereafter, to Shimla. She was taken to Darlaghat from where she was taken to village Majhin. The victim stated that she was in touch with a boy. Her mother scolded her for the same. She left her home and was waiting for the bus on 17.09.2014 at Katgaon. Rajeshwar and Amit met her. Rajeshwar enquired as to where she was going on which she revealed that she was going to Narkanda. Rajeshwar told her that he was also going to Narkanda and she should board his truck. She boarded the truck. Rajeshwar and Amit raped her inside the truck. Amit took her to Chandigarh and thereafter, handed her over to Vijay. Vijay took her to his home and she was residing with Vijay as his wife. The police arrested Vijay, Rajeshwar and Amit and conducted the investigations. The police presented a challan against the accused for the commission of offences punishable under Section 366 & 376 of IPC and Section 4 of the Protection of Children from Sexual Offences Act (in short ‘POCSO Act’) against Vijay Kumar, Section 120B of IPC and Section 17 of the POCSO Act against Kishori Lal father of Vijay and Section 363, 376D of IPC and Section 4, 5(G) of the POCSO Act against Amit Kumar and Rajeshwar Kumar.
2. Learned Trial Court framed the charges against the accused vide order dated 16.07.2018.
3. Being aggrieved from the order framing charge, the present revision has been filed by accused Rajeshwar Kumar asserting that the learned Trial Court misread the statement of the victim recorded under Section 164 of Cr.P.C. She had attributed an inculpatory role to Vijay Kumar and did not disclose the name of the petitioner. Another statement was recorded by learned CJM on 09.02.2015 without assigning any reason, wherein, the petitioner was implicated. There was no extraordinary circumstance for recording another statement of the victim. This statement was recorded after 10 days. There was no mention of the petitioner in the FIR and the mother of the victim had expressed her suspicion against Sunny. The name of the petitioner was also not mentioned in the earlier statement. There was a conflict about the date of the incident which shows that the statement of the victim was concocted. The victim was in touch with the main accused and she intended to marry him. The family of the victim was also aware of the fact that she was residing with Vijay Kumar-main accused. The victim narrated a false story in her supplementary statement on 09.02.2015; therefore, it was prayed that the present revision be allowed and the order passed by the learned Trial Court be set aside.
4. I have heard Mr. Sanjeev K. Suri, learned counsel for the petitioner, Mr. Jitender Sharma, learned Additional Advocate General for respondent No.1. and Mr. Ishan Sharma, learned counsel for respondent No.2.
5. Mr. Sanjeev Kumar Suri, learned counsel for the peti
