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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: PRIYA SHARAN MAHARAJ & ORS.

DATE OF JUDGMENT:       11/03/1997

BENCH: G.N. RAY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI      Leave granted.      Heard the learned counsel.      On 11.5.91,  one Purushottam Wasudeo Deshpande lodged a complaint at  the Dhantoli  Police Station,  Nagpur that his two young  daughters, Hema  and Meera were kidnaped by Priya Sharan Maharaj  (Respondent No.1)  with the help of Suhasini (Respondent No.6)  and Sharwari  Devi (Respondent  No.7.) On the basis  of this  report an  offence was  registered under Section 365  and 366  IPC.  Investigation  of  that  offence disclosed that Kripalu maharaj (respondent No.2), who claims to be  a spiritual  teacher and has his Ashrams at Vrindavan and Mangadh,  is a  highly immoral   person  and in order to satisfy his  lust he,  with help of his disciples, including Respondent Nos. 1 and 3 to 7, used to entice young girls and have  sexual   intercourse  with  them  against  their  wish Respondent No.2, through his disciples, used to impress upon the young  girls that he is the incarnation of Lord Krishna, that they should treat him as their husband and that what he was doing with them was in the nature of ’Prasad’ of God and by such  acts they  were really  blessed. The  investigation further disclosed  that Meera,  Hema and one Sulakshana were thus subjected  to sexual  intercourse by  Kripalu  Maharaj. Accordingly, the  offence which  was registered against them earlier under  Section 363  and 366  IPC was  altered to  an offence under  Section 376  IPC and all the seven respondent were shown as accused.      On being  chargesheeted, they  were put  up  for  trial before the  learned Second Additional Sessions Judge, Nagpur who had framed the following charge :      "1. That,  you above  named accused      No.2, prior to 1987 at the house of      one Nilu  Chaurasia,  in  front  of      Vijay  Talkies,  Nagpur,  committed      rape  on   one   Kum.   Meera   D/o      Purushottam  Deshpande,   aged   26      years, r/o Nagpur, against  he will      and  with   her   consent,   posing      yourself, you  are a  devine spirit

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    or Lord  Krishna. So also, again in      the month  of February,  1991,  you      accused No.2,  posing yourself that      your are  a divine  spirit of  Lord      Krishna,  committed  rape  on  said      Kum. Meera  Deshpande, at the house      of one Shrivastava, Near Previnamee      School, Nagpur.      Again on  16th day of January, 1980      at about  5.00 p.m. at the house of      one  Khatri,  Kadhi  Chowk  Nagpur,      committed rape  on  one  Sulakshana      D/o Shyamsundar  Pehankar,  a  girl      aged  about   14  years,  r/o  Juni      Shukrawari,   Nagpur.    Again   on      14.4.1990, at  about 5  p.m. at the      house  of   one  R.P.  Shrivastava,      nagpur you  committed rape  on said      Kum.  Sulakshana,  posing  yourself      that you  are a  Divine  Spirit  of      Lord Krishna.           So also, in the month of Sept.      1986,   at   the   house   of   one      Chaurasia,  Near   Vijay   Talkies,      nagpur, You  accused  No.2,  posing      yourself, you  are a  Divine spirit      of Lord  Krishna, committed rape on      one  Kum.   Hema  @  Brijgauri  d/o      Purushottam Deshpande,  aged  about      19  yrs.,   against  her  will  and      without her  consent,  and  thereby      you  above   named  accused   No.2,      committed  an   offence  punishable      under Section  376 of  Indian Penal      Code, within my congnizance.      2.   Secondly,  that   above  named      accused No.2 one the aforesaid day,      date, time and place, committed the      offence of  rape on the said girls,      and that  you above  named  accused      Nos.   1,3,4,5,6    and    7,    in      furtherance    of    your    common      intention, abetted the said accused      No.2  in   the  commission  of  the      consequence of  your  abetment.  So      also, you  about named accused Nos.      1, 3  to 7  were personally present      at the  time of  commission of said      offence, and  that your all thereby      committed offences punishable under      Section 109,  114/R/W Section 34 of      Indian  Penal   Code,   within   my      cognizance.’      Aggrieved by framing  of the charge the respondents had preferred a  revision application but High Court declined to interfere as  it was open to the respondents to approach the Sessions Court  itself for  granting the reliefs prayed for. The respondents,  therefore, filed three applications in the Sessions Court.  Exhibit 36  was  for  modification  of  the charge and  Exhibits 37 and 41 were for discharging them. At the time  of hearing  of these  applications, Exhibit 36 was not pressed.  The learned Additional Judge rejected both the applications for discharge.      Against the  order passed  by  the  learned  Additional Session Judge,  the respondents  preferred Criminal Revision

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Application No.  130 to  1994 before the Nagpur Bench of the High Court  of Bombay.  The High  Court, by  an unduly  long order  running   into  89   pages,  allowed   the   Revision Application,  quashed   the  charge   framed   against   the respondents and  discharged them.  The High Court was of the view that  as five  acts of  rape were  committed during the period from  September, 1986  to  February,  1991  on  three different girls,  the charge as framed was i n contravention of the  provisions of  Section 219  of the  Code of Criminal Procedure. It  also held  that the three girls had told lies and developed a false story against the respondents and that "no prudent man can dare to accept of believe" it. The state has, therefore, filed this appeal.      The learned  counsel for  the appellant  contended that the High  Court far  exceeded the limits of consideration at Section 227 stage and that has led to failure of justice. It committed an  error of  sifting and  weighing  the  material placed before the Court by applying the standard of test and proof which  is to  be applied  finally for deciding whether the accused  is guilty  or not.  What  was  required  to  be considered at  that stage  was whether  the material  placed before the  Court disclosed  a strong  suspicion against the accused. On  the other  hand, relying  upon the judgments of this Court in Union of India vs. Prafulla Kumar Samal & Anr. (1979) 2  SCR 229 and Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj  Bijja &  Ors.  (AIR  1990  SC  1962),  the learned counsel  for the  respondents submitted  that  while considering and application for discharge,      If there is no sufficient ground for proceeding against the accused,  the Court  has the undoubted power to sift and weigh the  evidence for  the limited  purpose of finding out whether or  not a  prima facie  case against  the accused is made out. The material placed before the Court must disclose grave suspicion  against the  accused. When  two  views  are equally possible  and if  the Court  finds that the material produced before  it while  giving rise  to  grave  suspicion against the  accused, it  will be  fully within its right to discharge the accused. He also submitted that at Section 227 stage the  Judge cannot  act merely  as a  post office  or a mouthpiece of the prosecution, but has to consider the broad probabilities of  the case, the total effect of the evidence and the  documents produced  before  the  Court,  any  basic infirmities appearing  in the  case and  so on. This is what the learned  Additional Sessions  Judge failed to do and the High court  has done.  He has  thus supported  the  judgment passed by the High Court.      The law  on the subject is now well-settled, as pointed out in  Niranjan Singh Punjabi vs. Jitendra Bijjaya (1990) 4 SCC 76,  that at  Sections 227  and 228  stage the  Court is required to   evaluate  the material and documents on record with a  view of  finding out if the facts emerging therefrom taken at  their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this  limited purpose, sift the evidence as it cannot be expected even  at that  initial stage to accept all that the prosecution states  as gospel truth even if it is opposed to common  sense  or  the  broad  probabilities  of  the  case. Therefore, at  the stage  of framing of the charge the Court has to  consider the  material with  a view  to find  out if there is ground for presuming that the accused has committed the offence  or that  there is  not  sufficient  ground  for proceeding against  him and  not for the purpose of arriving at the  conclusion that  it is  not  likely  to  lead  to  a conviction.      What we  find from  the judgement  of the High Court is

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that the  learned Judge,  in order  to ascertain the correct legal position,  referred to  various decisions  and  quoted extensively from  them but  did not apply the law correctly. The judgment  also contains  some quotations  which have  no relevance. After  referring to  the case  law,  the  learned Judge has observed as under :-      "Considering    the    facts    and      circumstances as  obtained  in  the      instant case,  I am reminded of the      learned   observation    of   their      Lordships   while   discussing   or      reflecting on the criminal cases." and  thereafter   quoted  the  following  passage  from  the decision of  this court  in State  of Punjab vs. Jagir Singh Baljit Singh and Karam Singh (AIR 1977 Supreme Court 2407) :      "A Criminal  trial is  not  like  a      fairy tale  wherein one  is free to      give  flight  to  itself  with  the      question as  to whether the accused      arrainged at the trial is guilty of      the crime with which he is charged.      Crime is  an event in real life and      is  the  product  of  interplay  of      different   human    emotions.   In      arriving at  the  conclusion  about      the guilt  of the  accused  charged      with the commission of a crime, the      court has  to judge the evidence by      the yardstick of probabilities, its      intrinsic worth  and the  animus of      witnesses. Every  case in the final      analysis would  have to depend upon      its own facts. although the benefit      of every reasonable doubt should be      given to  the accused,  the  courts      should not  at the same time reject      evidence   which    is   ex   facie      trustworthy on  grounds  which  are      fanciful  or   in  the   nature  of      conjectures."      That was  not a  case dealing with the scope and nature of  enquiry  at  the  stage  of  framing  of  charge.  Those observations  were   obviously  made   in  the   context  of appreciation of  evidence and standard of proof required for convicting the  accused. This  clearly  indicates  that  the learned Judge failed to apply the correct test.      The  following  observations  again  lead  us  to  that conclusion:      "Giving conscious  thought  to  the      rival  submission  of  the  learned      counsel  or   the  parties,  it  is      abundantly clear  that  except  the      statements of prosecutrix, there is      no evidence  directly or indirectly      to corroborate  their  testimonies.      According to Kr. Sulakshana she was      molested initially  on 16.1.1990 an      subsequently on  14.4.1990  however      there is  no disclosure  to  anyone      including her parents.  Considering      her age  at the  relevant time,  no      injuries were found as indicated by      Modi. Similarly  though  Ku.  Meera      alleged that she was molested prior      to  1987  and  in  February,  1991,

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    instead of  disclosing to  stay  in      the company  of the  applicant No.2      Kripaluji    Maharaj     and    his      disciples. She  not from  place  to      place to  preach the tenents of the      cult    of    Kripaluji    Maharaj.      Similarly, though  it is alleged by      Ku. Hema  and she  was molested  in      the month  of September,  1986, she      is not  the case of the prosecution      that these  two  sisters  disclosed      about  the  indence  activities  of      Kripaluji      Maharaj      amongst      themselves. Meera and Hema both are      graduates  and  Ku.  Sulakshna  was      adolesent. It  cannot  be  expected      from   such   educated   girls   to      continue to  accompany  the  person      who according to them, proved to be      demon and  to continue  in his cult      propagating  his   teachings.   The      conduct  of  all  three  girls  not      being  in  consonance  with  normal      dispositions   of   prudent   human      beings corroboration  thus, becomes      a  necessity   or  eminent.  Taking      broad   view    of   the    matter,      particularly  various   infirmities      and  improbabilities,   no  man  of      prudence will any importance to the      story unfolded.  It is, thus, clear      that except the bare words of these      three  girls,  their  is  no  other      evidence   to   corroborate   their      story. Anything  said by  victim at      or about the time of occurrence, to      their parents/and/or  others, would      form  part   of  res-gestae.   Such      conduct  can   be  a  corroborative      piece  of   evidence  of  her/their      evidence.    In     other    words,      subsequent  conduct   not  only  is      relevant    but    important    and      material.           These  three   girls  levelled      allegations against  the  applicant      No.2 Kripaluji  Maharaj  after  the      lapse  of  considerable  time  i.e.      after   months   and   years   and,      therefore,   the   probability   as      depicted by the defence that if was      at  the   instance  of   Nityanand,      cannot  be   overruled.   I   needs      mention that  no report  was lodged      by either  of the    girls  ay  any      time. It  is also  clear  from  the      record that  Nityanand’s  statement      which  was  recorded  on  11.5.1991      i.e. on the day on which the F.I.R.      was    lodged     by    Purushottam      Deshpande.  Subsequently  only  the      statements   of   all   the   three      prosecutrix came  to  be  recorded.      Even in  the  F.I.R.  there  is  no      whisper  that   at  any  time,  the

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    applicant no.2  had committed  rape      on any of the prosecutrix or on any      other disciples.           So  the   evidence  does   not      become reliable  merely because  it      has been  corroborated by number of      witnesses of the same brand.           In   this   case,   there   is      unreasonable inordinate  or  extra-      ordinary    delay    in    leveling      allegations of physical molestation      or  rape   committed,  by  all  the      three prosecutrix against a saintly      old man  of 69  years  of  age  who      renounced the  world and  engrossed      in spiritual world. The explanation      as  could   be  revealed  from  the      statements  as  could  be  revealed      from   the    statements   of   the      prosecutrix that  the disciples  of      Kripaluji  Maharaj  all  the  while      stated that he is an incarnation of      God  and   whatever  happened  with      them, be  taken as  a  ’Prasad’  or      blessing of  God and  so not to the      chestity is the jewel of the Indian      woman and  no woman  will  consider      the sexual  intercourse against her      will as  ’Prasad’ or  ’Blessing  of      God’.           It  also  does  not  stand  to      reason that  a saintly  man who has      thousands/millions of disciples all      over India, direct his own disciple      and in  their presence  will commit      sexual intercourse the pracharak of      his cult.           Considering the overall effect      of the  evidence collected  by  the      prosecution, there  is according to      me, no  ring of  truth. No  prudent      man can  dare to  accept or believe      the infirm  and improbable evidence      of the prosecutrix.           All these  facts  go  to  show      that the  girls evidently told lies      and developed  false story  against      the   applicant    no.2   and   his      disciples."      The above  quoted paragraphs  from the judgment clearly disclose that  the High  Curt was  much  influenced  by  the submission made  on  behalf  of  the  defence  that  Kripalu Maharaj is  a saintly  old man, who has renounced the world, who  is   engrossed  in   spiritual  activity  and  who  has thousands/millions  of   disciples  all   over  India   and, therefore, he  was not likely to indulge in the illegal acts alleged against  him. It failed to appreciate that it is not unusual to  come across  cases where the so-called spiritual heads exploit you girls and women who become their disciples and come  under their  spell. Moreover, the reasoning of the High Court  that it  also does  not stand  to reason  that a saintly man  who has thousand/millions of disciples all over India would  commit sexual  intercourse with the praharak of his cult  in  presence  of  his  disciples  stands  vitiated because of  the vice of misreading the statements. The three

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girls have  nowhere stated  in their statements that R-2 had sexual intercourse with them in presence of other disciples. The High  Court gave  too much  importance to the conduct of the three  victims and the delay in disclosing those illegal acts to their parent and the police. What the High Court has failed to appreciate is how a victim of such an offence will behave would  depend upon  the circumstances in which she is placed. It  often happens  that such victims do not complain against such  illegal acts  immediately because  of  factors like fear  or shame  or uncertainties about the reactions of their parents  or husbands in case of married girls or women and the  adverse consequences  which, they  apprehend, would follow because  of disclosure  of such  acts. What the three girls had  stated i  n their  statements was  not inherently improbable or unnatural. They have disclosed the reasons why they could not immediately complain about those illegal acts for such  a long  time. What  the High  Court has  failed to appreciate is  that while  making complaint to the police or giving their  statements they  were  not  required  to  give detailed explanations. As stated earlier, what the Court has failed to appreciate is that while making a complaint to the police or  giving their statements they were not required to give detailed  explanations. As  stated  earlier,  what  the Court has  to consider at the stage of framing of the charge is whether  the version  of the  person complaining together with his/her explanation is  prima facie believeable or not. It was,  therefore, not  proper for  the High  Court to seek independent corroboration  at that  stage and  to quash  the charge and discharge the accused  in absence thereof. It was also improper to describe the version of Sulakshana as false because no  extensive injuries  were noticed  on her  person while she  was examined  by a  doctor on  the basis  of some observations  made   in  Modi’s   textbook  on      "Medical Jurisprudence and  Toxicology". We do not think it proper to say anything further as, in the view that we are taking, the accused will  have to face a trial and whatever observations we make  now may  cause some prejudice to them at the trial. We would  only say  that the  High Court was wholly wrong in discarding the material placed before the Court as false and discharging the accused on the ground.      Before us  also the learned counsel for the respondents had made  a grievance  that the  charge as framed was not in accordance wit  Section 219  of the Criminal Procedure Code. The Application,  Exhibit 36, was made to the Sessions Court for  modifications of the charge so as to make it consistent with Section  219. That  application was not pressed and the Court was  invited to  dispose of the other application made by them  for quashing the charge and discharging them. As we are inclined  to allow  this appeal  the Sessions Court will have to  now consider  afresh whether the charge is required to be altered or amended.      We,  therefore,   allow  this  appeal,  set  aside  the judgement and  order passed by the High Court and direct the Sessions  Court   to  proceed  further  with  the  trial  in accordance with  law. The  trial Court shall do so after re- examining  the  material  and  hearing  the  learned  Public Prosecutor and the lawyer for the accused on the question of amending or  altering the charge so as to make it consistent with the  relevant provisions  of the  Code and  also  after considering whether  it will  be possible  to  try  all  the offences at  one trial  or that  they will  have to be tried separately.