CRL.REV.P./1073/2018 of AMAN DAHIYA Vs THE STATE ( NCT OF DELHI) & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+CRL.REV.P. 1073/2018

AMAN DAHIYA..... PetitionerThroughMr. Jatan Singh and Mr. PawanMadhukar, Advs.

versus

THE STATE (NCT OF DELHI) & ANR..... RespondentsThroughDr. M.P. Singh, APP with SI Harish,P.S. S.B. Dairy

CORAM:

HON'BLE MR. JUSTICE A.K. PATHAK

O R R%04.12.2018

Crl. M.A. no.48701/2018 (exemption)

Allowed, subject to all just exceptions. Application is disposed of.

CRL.Rev. P. No.1073/2018 and Crl. M.A. no. 48700/2018 (stay)

Petitioner is aggrieved by the framing of charge under Sections376/511 IPC by the trial court against the petitioner.Petitioner is devar(brother-in-law) of prosecutrix. In the FIR, prosecutrix has stated that oneday she found her devar Aman Dahiya watching from the window when theprosecutrix and her husband were having sex; when prosecutrix told this toher husband and mother-in-law, they beat her up. In the month of March,

2016, on Sunday, petitioner came to her room in absence of her husband,mother-in-law and sister-in-law. He started making physical relations withher by saying: “my brother is impotent and I wish to show you the real funof life and you get more enjoyment with me”. She categorically stated thatpetitioner tried to rape her but due to her best efforts and shouting, shesucceeded in runing away from the clutches of petitioner.

Learned counsel for the petitioner submits that this statement is notsufficient to frame charge of attempt of rape against the petitioner as in hersubsequent statement under Section 164 Cr.P.C., prosecutrix has notcorroborated this version. In her this statement she has simply stated thatpetitioner tried to establish physical relations with her.He has placedreliance on State vs. Gajraj Singh, MANU/DE/0205/2017.By placingreliance on Union of India (UOI) vs. Prafulla Kumar Samal and Ors.,MANU/SC/0414/1978, it is contended that before charges are framedprosecutrix has to establish that grave suspicion arises against the accusedfor the offences with which he has to be charged. He contends that no gravesuspicion arises against the petitioner for committing offence of attempt torape, in view of the vague statement made in the FIR, which has not beensupported by the prosecutrix in her statement under Section 164 Cr.P.C.

I have perused the judgments relied upon by the learned counsel. Thesaid judgments are in the context of different facts and are of no help to thepetitioner.In State vs. Gajraj Singh (supra), prosecutrix had completelyexonerated the accused in her statement under Section 164 Cr.P.C.However, in this case, prosecutrix has categorically stated in the FIR that inthe month of March, 2016 on Sunday, petitioner came to her room inabsence of her husband, mother-in-law and sister-in-law and tried to rapeher by uttering the words, which have been reproduced hereinabove. Shesucceeded in running away from the clutches of the petitioner.In herstatement under Section 164 Cr.P.C., she has not absolved the petitionercompletely as she has stated that petitioner tried to establish physicalrelations with her. Veracity of the version of prosecutrix can be tested onlyduring the trial. At the stage of framing of charge only prima facie view isto be made out. Statement of the witnesses have to be taken as correct at thetime of framing of charge.

For the foregoing reasons, I do not find any irregularity, illegality orimpropriety in the impugned order. Petition is dismissed. Miscellaneousapplication is disposed of as infructuous.

DECEMBER 04, 2018/r.bararia

A.K. PATHAK, J.