Dismissed

Mayank Verma @ Maneshwar Nath Verma v. State Of Uttarakhand and Another

Uttarakhand HC26 Mar 2014CRLR/34/2014

Case brief

AI extract

What is this about?

The High Court rejected the revision petition against the framing of charges for rape and murder. Upholding the trial court's decision, the court held that last seen evidence and circumstances prima facie established the offence, noting that absence of spermatozoa does not negate rape.

What did the court decide?

Criminal Revision No.34 of 2014 dismissed.

Mayank Verma @ Maneshwar Nath Verma Vs… — Murder and Culpable Homicide | Uttarakhand HC (2014)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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Criminal Revision No.34 of 2014

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Mayank Verma @ Maneshwar Nath Verma

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… Revisionist

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vs.

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State of Uttarakhand and another … Respondents

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Mr. K. K. Tiwari, Advocate for the revisionist. Mr. V. S. Pal, A.G.A. for the State of Uttarakhand.

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U. C. Dhyani, J. (Oral)

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An FIR was lodged against the accused-revisionist on 31.08.2013 in R.O.P. ITI, Kashipur, District Udham Singh Nagar for the offences punishable under Sections 376 & 302 IPC. It was alleged that on 30.08.2013, the victim came to Kashipur at around 9:00 AM. On the selfsame day, at 10:30 AM, the accused-revisionist took her towards Bajpur road on his motorcycle. The same was witnessed by one Ravinder Sharma of Kashipur. When the victim did not return till 3:00 PM, the informant enquired and came to know from Ravinder Sharma that the victim was taken by the accused-revisionist with him on his motorcycle at 10:30 AM. Both (i.e. revisionist and victim) were seen together at roadways bus-stand. When the informant went to Chaiti intersection in search of the victim, he came to know that a woman was killed in a hotel. The informant went to that hotel only to find that his niece was killed. The informant had every suspicion that the accused (revisionist herein) committed rape with the victim and thereafter strangulated her to death.

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After investigation of the case, a charge-sheet was submitted against the accused-revisionist for the offences punishable under Sections 376 & 302 IPC. The charge against the accused-revisionist was framed for the selfsame offences by Sessions Judge, Udham Singh Nagar, vide order dated 25.01.2014. Feeling aggrieved with the same, the present criminal revision was preferred by the revisionist.

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Section 228 Cr.P.C. provides for framing of charge in session trial cases. It provides that if, after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, he shall frame in writing a charge against the accused. Section 226 Cr.P.C. provides for opening the case for prosecution. It says that when the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209 Cr.P.C., the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. The judge is not a mere post-office to frame the charge, but he has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out or not? The sufficiency of ground would take within it’s fold the nature of the evidence recorded by the police or the documents produced before the court, which ex-facie disclosed that there were suspicious circumstances against the accused. It is well settled law that the Court while framing the charge has to look into the prosecution case as a whole. The trial judge is required to look into the material collected by the Investigating Officer during investigation. Presuming the material thus collected including the documents in support thereof to be true, whether the trial will end in conviction or not? If the trial will end in conviction,

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then, the trial court shall frame the charge against the accused in respect of the offences thus complained of against the accused.

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In the instant case, apart from the FIR, there are statements of the witnesses under Section 161 Cr.P.C. Besides above, the vaginal smear of the victim, who was aged about 19 years, was taken. Senior Pathologist of H.D. Bhat Hospital, Kashipur gave a report that the vaginal smear, on examination, shows the presence of blood, intermediate epithelial cells, superficial epithelial cells etc. The postmortem report is also available on record which shows that the cause of death of the victim was cardio-respiratory arrest due to ante-mortem hanging. Vaginal swab was sent for chemical examination. Four slides were sent for pathological opinion with regard to the confirmation of spermatozoa.

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Assuming for the sake of argument, for a moment, that the pathological report for presence of the spermatozoa comes in the ‘negative’ and vaginal swab is also in the ‘negative’, will the same amount that no offence punishable under Section 376 IPC was prima facie made out against the accused? The reply to the said question is in the ‘negative’ in view of the definition of rape as given in Section 375 Cr.P.C., which says, among other things, that mere penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. It was held by Hon’ble Apex Court in Prithi Chand vs. State of Himachal Pradesh, AIR 1989 SC 702, that mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case. In the instant case, besides the medical report and the postmortem report, there is last seen evidence against the accused, i.e., the deceased/victim was last seen in the company of the accused by one Ravinder Sharma.

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In view of above, this Court is of the opinion that the trial court committed no mistake in framing the charge against the accused-revisionist. No interference is, thus, called for in the impugned order.

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The Criminal Revision is, therefore, dismissed.

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Let a copy of this judgment be sent to the trial court.

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Dated 26^th March, 2014

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Rawat

Mayank Verma @ Maneshwar Nath Verma v. State Of Uttarakhand and Another

Case brief

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Mayank Verma @ Maneshwar Nath Verma v. State Of Uttarakhand and Another

Case brief

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