continuation of proceeding of rape against the petitioner, who is juvenile, is totally unwarranted and is an instance of abuse of process of law: MP High Court

M.Cr.C. No.13169/2009
16.04.2013
Shri Sharad Verma, Advocate with Shri Lalit
Pandey, Advocate for the petitioner.
Shri Akshay Namdeo, Panel Lawyer for the
respondent/State.
Present petition has been preferred seeking
quashment of FIR dated 26/04/2009 registered at
Crime No. 12/2009 at Police Station AJJAK, District
Sidhi under section 376 IPC read with section 3(2)(v)
of Scheduled Caste and Scheduled Tribes (Prevention
of Atrocities) Act, 1989.
According to prosecution on 26/04/2009
prosecutrix, aged about 15 years, lodged a report at
police station AJJAK, District Sidhi that since
October, 2008 till date, petitioner is indulged in
sexual relations under promise of marriage with her,
has resulted in pregnancy of 7 months. When fact of
such an advanced pregnancy was told to the
petitioner, not only he refused to marry the
prosecutrix but also misbehaved and abused herself
and family members.
During the course of investigation prosecutrix
vide Exhibit A/4 informed the police that infact the
6 M.Cr.C. No. 1027/2005
petitioner did not commit rape with her, but rape was
committed by one Akhilesh @ Lala Kewat. At the
instance of Shyam Sunder Kushwaha, who had
enmity with the petitioner, name of petitioner was
mentioned in FIR and prosecutrix could not point out
this fact out of her innocence and illiteracy. While
prosecutrix could not succeed to establish the fact
before police that actually rape has not been
committed by the petitioner, she preferred a private
complaint against Akhilesh @ Lala Kewat, Shyam
Sunder and concerned police official but was of no
avail. Police found that subsequent allegation against
Akhilesh @ Lala Kewat was not true and rape was
committed by the petitioner only. Charge sheet has
been preferred in juvenile court because at the time
of incident, petitioner was aged 13 years only.
Present petition has been preferred on the
grounds that the prosecutrix herself was not sure of
the fact whether petitioner has committed rape or not
that is why at one point of time she lodged report
against the petitioner and in next breath she made
accusation against some other person to be
responsible for her pregnancy. During investigation,
date of birth of prosecutrix was found to be
05/03/1994 and date of birth of petitioner was found
7 M.Cr.C. No. 1027/2005
to be 10/10/1996.
According to FIR, first incident of rape took
place in October, 2008 meaning thereby in October,
2008 age of the petitioner was only 12 years, who
alleged to have committed rape with prosecutrix, two
years elder to him. Such relationship said to be
continued for months together and has resulted into
preganancy of 7 months and then FIR was lodged.
A boy of 12 years would commit rape with a girl
two years elder to him and continue to commit such
acts for months together appears to be absurd and
unnatural story. There is sufficient material available
on record to show that under some wrong impression
and as a result of mis-advice FIR was lodged against
the petitioner but real culprit also managed to escape
from the clutches of the investigation.
Per Contra, Learned Panel Lawyer submits that
charge sheet has been filed in juvenile court against
the petitioner that contains a prima facie evidence of
rape against the petitioner, hence at this stage
proceedings should not and cannot be quashed.
Rather it appears to be a matter of trial and truth can
be revealed in trial court at proper stage.
On careful perusal of charge sheet, it appears
that story of commission of rape by a boy of 12 years
8 M.Cr.C. No. 1027/2005
for a period of 7-8 months with a girl who is two years
elder to him, who immediately disowned the name of
petitioner after lodging FIR and tried to narrate name
of culprit to the prosecution agency but could not
succeed to impress the prosecution agency so that
real culprit can be made accused in the case, is an
absurd and unnatural version.
In such a situation, on the basis of such
allegations, continuation of proceeding of rape
against the petitioner, who is juvenile, is totally
unwarranted and is an instance of abuse of process
of law. Even assuming the contents of FIR true, it is
difficult to hold that charge of rape can be presumed
against the petitioner because at relavant time the
petitioner was aged 12 years only, that too was two
years younger to the prosecutrix.
As discussed above, this petition is allowed and
FIR and charge sheet dependent on it, is hereby
quashed.
Certified copy as per rules.
(Tarun Kumar Kaushal)
Judge