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Judgment
Harphul Singh, Brar, J.
A case was registered on 28.2.1996, vide FIR No. 39, dated 28.2.1996, Police Station City Fatehabad under Sections 363, 366 and 376 of the I.P.C. by Hoshiar Singh, father of the prosecutrix Rajbala wherein he alleged that his daughter Rajbala was missing since the previous evening. Hoshiar Singh suspected the involvement of Dalip Singh and Sarwan Singh in her alleged abduction. The prosecutrix was recovered by the police on 1.3.1996 from the Dhani of accused Sarwan. In her statement recorded under section 161 Cr.P.C., on the same day, she alleged that she had been taken away from her house by Kaushalya W/o. Moman and Suhag Rani W/o. Pala Singh, residents of the same Basti in which the prosecutrix resides to the fields for collecting firewood and after her having thus accompanied the abovenamed two ladies Kaushalya and Suhag Rani, she was taken to the Dhani of accused Sarwan where she was offered tea by these two ladies and thereafter both these ladies went out of the Dhani leaving the prosecutrix there and then where she was raped by the accused Sarwan and Dalip respectively.
Even in her statement under section 164 Cr.P.C. recorded on 2.3.1996, the prosecutrix stated that after her being taken by Kaushalya and Suhag Rani to the fields of Sarwan, she was offered tea by the abovenamed two ladies who had mixed some intoxicant therein and after taking it she lost her senses and she was thereafter bolted inside a room by Kaushalya and Suhag Rani where she was raped by the two accused named above.
The police challaned the two accused i.e. Dalip and Sarwan but did not challan Kaushalya and Suhag Rani who were shown in column No. 2.
In her statement recorded before the trial Court on 10.9.96, the prosecutrix has testified that on the date and time in question Kaushalya and Suhag had fetched her from her own house to the fields of accused Sarwan for collecting firewood where she was offered tea by the abovenamed two ladies in the presence of the accused Dalip and Sarwan and after taking tea she became intoxicated whereupon she was taken by Kaushalya and Suhag inside a Kotha where accused Sarwan committed rape on her to be followed by Dalip.
After her statement was recorded at the Trial Court, an application was moved by the prosecution under section 319 Cr.P.C. requesting the Trial Court for summoning Kaushalya and Suhag Rani to stand trial for having abetted the commission of the offences in question by the accused Dalip and Sarwan.
Learned Trial Court dismissed the application on the ground that testimony of the prosecutrix as recorded at the Trial Court on 10.9.96 was entirely discrepant visavis the involvement of Kushalya and Suhag. The learned Trial Court while dismissing the application further held that the nature of evidence as given by the prosecutrix read in the light of her statement under section 161 Cr.P.C. and her statement under section 164 Cr.P.C. does not indicate even prima facie evidence of abetment by these two ladies of rape of prosecutrix by the accused.
This is a revisionpetition against this order of the Trial Court dated 5.10.1996 vide which it has dismissed the application of the prosecution under Section 319 Cr.P.C.
I have heard the learned counsel for the parties.
Section 319 of the Code of Criminal Procedure provides that where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. This conclusion is to be reached judiciously from the evidence on record.
The trial Court was only required to satisfy as to whether a prima facie case is made out against Kaushalya and Suhag Rani. A prima facie case is not the same thing as proof. It only means that there is a ground for proceeding on the basis of the evidence available on the record.
In my considered view, the learned trial Court did not apply its judicious mind before dismissing the application of the prosecution under Section 319 Cr.P.C.
As has been stated above and which has been mentioned by the trial Court itself that the prosecutrix has clearly named Kaushalya wife of Moman and Suhag Rani wife of Pala Singh as the culprits who abetted the commission of rape on the prosecutrix by Dalip and Sarwan accused.
It has been stated in para No. 4 of the trial Court order itself that after the recovery of the prosecutrix by the police on 1.3.1996, the prosecutrix in her statement recorded under Section 161 Cr.P.C. alleged that she had been taken away from her house by Kaushalya wife of Moman and Suhag Rani wife of Pala Singh, residents of the same basti to the fields for collecting firewood and after her having thus accompanied the abovenamed two ladies Kaushalya and Suhag Rani, she was taken to the Dhani of accused Sarwan Singh were she was offered tea by these two ladies and thereafter both these ladies went out of the dhani leaving the prosecutrix there and she was then raped by the accused Sarwan and Dalip respectively. It is again found from para No. 4 of the trial Court order itself that even in her statement recorded under Section 164 Cr.P.C. on 2.3.1996, the prosecutrix named Kaushalya and Suhag Rani and alleged that she was taken to the fields by these two women and offered her tea in which some intoxicant was mixed and after taking it she lost her senses and she was thereafter bolted inside a room by Kaushalya and Suhag Rani where she was raped by the two accused.
Even in her statement before the trial Court, she has specifically named Kaushalya and Suhag Rani as the culprits. She has specifically stated that these two women came to her house and took her to the fields in the dhani. They gave her tea and after taking it she felt intoxicated and thereafter accused Sarwan and Dalip forcibly raped her Prosecutrix is consistent in her statement at the trial including her statement under Section 161 Cr.P.C. and 164 Cr.P.C. indicting Kaushalya and Suhag Rani, being the abettors with the accused who committed rape upon her. The trial Court was only required to satisfy itself as to whether a prima facie case is made out against Kaushalya and Suhag Rani, from the statement of the prosecutrix at the trial.
After going through the statement of Raj Bala prosecutrix made before the trial Court and her statements under Sections 161 and 164 Cr.P.C., mentioned by the trial Court in its impugned order, I find that a prima facie case is made out against Kaushalya wife of Moman and Suhag Rani wife of Pala Singh, who were not challaned by the police but were shown in column No. 2.
The trial Court has clearly erred in law and on facts in throwing out the application of the prosecution without applying its judicious mind and without taking into consideration the specific provision of section 319 of Criminal Procedure Code.
In these circumstances, I allow this petition, set aside the impugned order dated 5.10.96 of the Additional Sessions Judge, Hisar. Resultantly, the application of the prosecution filed under Section 319 Cr.P.C. is allowed and the trial Court is directed to proceed against Kaushalya and Suhag Rani also along with other accused, in accordance with law.
Any observation made by me in this order shall not be taken into consideration by the trial Court when deciding the case on merits.