Delhi High Court (August 17, 2001) 2001 (TLS)126506 2001-AD (Del)-7-342 RAJOO RAJU Vs. state of delhi R. S. SODHI ( 1 ) CRIMINAL Revision No. 431/2001 is directed against the Order of the learned Additional sessions judge, Delhi dated 11/6/2001 framing charge under Section 376 Indian Penal Code. ( 2 ) IT is the case of the petitioner before me that upon a complaint made by the prosecutrix fir No. 520/1992 Police Station Ambedkar Nagar was registered. Upon completion of the investigation the police filed a report under Section 173 of the Code of Criminal Procedure for cancellation of the FIR for reasons that there was no material on record, which could sustain the allegations made in the FIR. While this cancellation report was under consideration by the Court, the prosecutrix filed a complaint under Section 200 of the Code of Criminal procedure on more or less the same facts that were alleged in the FIR. The learned Judge exercising his power rejected the police report on the basis of the material available before hir. and came to the conclusion that a charge under Section 376 Indian Penal Code could be framed against Rajoo and not Gopal. The learned judge has, it appears, mixed up the police report with the complaint. ( 3 ) IT is interesting to note that the complainant a girl of 13 years of age, she alleges that on 14/9/1992 while she was coming back from the market for going to her home at about 9 o clock, she went to a nearby lavatory where she was trapped by many boys and one amongst them was Rajoo. He forcefully took her in the lavatory and pointed a knife. thereafter removed her under garments and all others held her legs and arms and Rajoo committed rape on her against her wishes and consent. Thereafter the remaining six also performed the drastic act and then she was taken towards the cremation ground where seema saw her and enquired from the prosecutrix as to what the matter was. The accused persons immediately filed and the prosecutrix along with Seema went to Seema s house. This is her case in the complaint filed under Section 200 of the Code of Criminal procedure before the learned Additional Chief Metropolitan Magistrate, New Delhi. The accused persons immediately filed and the prosecutrix along with Seema went to Seema s house. This is her case in the complaint filed under Section 200 of the Code of Criminal procedure before the learned Additional Chief Metropolitan Magistrate, New Delhi. The FIR, on the other hand, reads as under: "i alongwith my parents reside at abovesaid address and am doing the work of water trolley at bus stand or 416 on Khanpur Madangir Road. Yesterday, on 14. 09. 92 at 9. 15 p. m. when I was returning back to my home and reached at bridge over Nallah near F-Block, five boys whom do not recognize but can recognize when brought before me took me forcibly to the nearby lavatory and committed rape on me and left me at about 12. One of the boys tried to take me along with him forcibly then my friend namely Seema came there and she went after seeing her. Seema took me to my home. I told this to my parents who took me to ITO to some senior officers office. We all have come to report this incident. We did not went to police post Dakshinpuri on police station Madangir. I want that legal action may be taken. I have heard my statement which is correct. I want myself to be medically examined. " ( 4 ) FROM the reading of the two versions, it appears that in the complaint dated 8/4/1993 the prosecutrix has sought to rape in two more persons, namely, Rajoo and Gopal, who are, according to her, in addition to five boys implicated in the FIR dated 15/9/1992. Material before the Court, besides the statement of the prosecutrix, is the medical report, which reads as under: "patient Rajkumari 13 years old gives H/o alleged rape on 14. 09. 92 at 9 p. m. in khanpur, Dakshinpuri. She does not recognize them. Gives the alleged h/o 5 persons taking her forcibly, she came back home on 14. 09. 92 at 12. 00 night. She says to be wearing the same undergarments till the examination time. Patient is unmarried. M/h 5/30 regular mencaria-4 times. LMP:11. 09. 92 g. C-F P/a NAD p-82/m P/s no tear on fourchette b. P. 110/70 No hymen tear heard Pt. is having periods lungs: NAD P/r-CXD/f-VTAUN:s. FX Free breast Normal: No tender less. 09. 92 at 12. 00 night. She says to be wearing the same undergarments till the examination time. Patient is unmarried. M/h 5/30 regular mencaria-4 times. LMP:11. 09. 92 g. C-F P/a NAD p-82/m P/s no tear on fourchette b. P. 110/70 No hymen tear heard Pt. is having periods lungs: NAD P/r-CXD/f-VTAUN:s. FX Free breast Normal: No tender less. No mark of any injury Samples from : or scratches oven the Public Hair body anywhere. High Vg Swab vulvalswab underwear [sealed and handed over to the investigating officer]. Adv. X-ray, long bones for maturity and age. Form handed over to the investigating Officer. " ( 5 ) THE learned Additional Sessions judge, while going through the material placed by the police has dealt with the complaint. The medical evidence in this case as also the FIR does not support the complainant s version in the complaint. The complainant has in the complaint increased the number of boys and included Rajoo as the sixth and Gopal as the seventh accused while in the first information report only five unknown boys were mentioned as accused. To my mind addition of Rajoo and Gopal is an afterthought and has been introduced with oblique motive. The medical report does not show any rape having been committed on the prosecutrix. The trial Court has not charged Gopal. I do not find any ground to justify framing of charge against Rajoo. The Court must either reject or accept the police report. Complaint can only be addressed after the options have been taken. ( 6 ) IN this view of the matter, although i am aware that at the stage of charge, Court should be weary of interfering and only in gravest of the situations, should the Court exercise its jurisdiction. ( 7 ) HERE, to my mind, is a patent case where exercise of jurisdiction is necessary since it appears to me to be a case of vendetta rather than of any penal offence having been committed. I am of the opinion that charge framed against the petitioner cannot be sustained. I, therefore, quash the impugned Order dated 11/6/2001 framing charge against the petitioner. ( 8 ) LEARNED counsel for the State submits that the Supreme Court has held that even if there Is an attempt to rape, that is sufficient to bring home the guilt of the accused under section 376 Indian Penal Code. I, therefore, quash the impugned Order dated 11/6/2001 framing charge against the petitioner. ( 8 ) LEARNED counsel for the State submits that the Supreme Court has held that even if there Is an attempt to rape, that is sufficient to bring home the guilt of the accused under section 376 Indian Penal Code. I have gone through the judgment cited, no such law has been laid down by the Supreme Court. It is the mandate of the Legislature that an offence of rape must satisfy the ingredients thereof to bring it within the scope of Section 376 Indian Penal Code, speculation cannot justify the offence. Criminal Revision No. 431/2001 is allowed. --- *** --- .