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CRR 121/2017
Shailendra Dhakad and Others vs. State of MP

Gwalior, dtd. 22/11/2017
Shri Vikrant Sharma, counsel for the applicants.
Shri RS Yadav, Public Prosecutor for the respondent/

State.

This Criminal Revision under Section 397/401 of
Cr.P.C. has been filed against the order dated 2-1-2017
passed by Special Judge (Prevention of Corruption Act),
Datia in S.T. No. 45/2015, by which an application filed
under Section 319 Cr.P.C. has been allowed and the
applicant no.1 and 2 have been summoned as an additional
accused for offence under Sections 376D, read with Section
109, 342 of I.P.C. and under Section 3/4 read with Section
16/17 of POCSO Act, and applicant no.3 has been
summoned as an additional accused for offence under
Sections 376D, 342 of I.P.C. and under Section 3/4 read
with Section 16/17 of POCSO Act.

The necessary facts for the disposal of the present
revision in short are that the Prosecutrix, aged about 16
years, lodged a report to the effect that about 4:30 in the
morning, she was going to answer the call of the nature.
The applicants and the co-accused Umesh Jatav caught hold
of her and took her to the room of Umesh Jatav where, the
co-accused Umesh Jatav and applicant Chhotu Jatav
committed rape on her. On this report, the police registered
the F.I.R. However, after completing the investigation, the
police did not file the charge sheet against the applicants on
the ground that the allegations were found to be false and
charge sheet was filed only against Umesh Jatav.

During the pendency of the Trial, the evidence of the
prosecutrix was recorded and in her evidence, once again
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she stated that she was raped by the applicant Chhotu Jatav
also.

The Trial Court by exercising power under Section 319
of Cr.P.C., summoned the applicants as an additional
accused.

Challenging the order dated 2-1-2017, it is submitted
by the Counsel for the applicants that there is no sufficient
material available on record to summon the applicants as an
additional accused.

Heard the learned Counsel for the parties.
The Supreme Court in the case of Hardeep Singh Vs.
State of Punjab reported in AIR 2014 SC 1400 has held
as under :

”99.Thus, we hold that though only a prima
facie case is to be established from the
evidence led before the court not necessarily
tested on the anvil of cross-examination, it
requires much stronger evidence than mere
probability of his complicity. The test that has
to be applied is one which is more than prima
facie case as exercised at the time of framing
of charge, but short of satisfaction to an
extent that the evidence, if goes unrebutted,
would lead to conviction. In the absence of
such satisfaction, the court should refrain from
exercising power under Section 319, Cr.P.C. In
Section 319, Cr.P.C. the purpose of providing if
‘it appears from the evidence that any person
not being the accused has committed any
offence’ is clear from the words “for which
such person could be tried together with the
accused.” The words used are not ‘for which
such person could be convicted’. There is,
therefore, no scope for the Court acting under
Section 319, Cr.P.C. to form any opinion as to
the guilt of the accused.”

If the facts of the present case are considered, then it
would be clear that the Trial Court did not commit any
mistake, by invoking its jurisdiction under Section 319 of
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Cr.P.C.

The prosecutrix lodged a F.I.R. to the effect, that at
about 4 in the morning, she had gone to answer the call of
the nature. While she was returning back and reached in
front of the shop of co-accused Umesh Jatav, the applicants
and the co-accused Umesh Jatav were standing there. The
applicant Shailendra Jatav said that the prosecutrix who
belongs to Scheduled Caste/Tribe should be dragged in the
shop. Thereafter, all the accused persons, forcibly took her
inside the shop. Thereafter, Shailendra asked the applicant
Rajaram to commit rape on her. Shailendra took out her
cloths and when she raised an alarm, her mouth was
gagged by Balvir. Umesh Jatav and Chhotu Jatav came
inside the shop and Shailendra, Balvir and Rajaram went
outside and were standing there. Umesh Jatav and Chhotu
Jatav committed rape on her. Somehow, she managed to
raise an alarm and after hearing her shouts, her uncle
Kalyan reached on the spot. On these allegations, the police
registered the offence.

The case diary statement of the prosecutrix was
recorded, in which also, similar allegations were made.

The vaginal slide and swab of the prosecutrix and the
blood samples of the co-accused Umesh Jatav and the
applicant Chhotu Jatav were sent for D.N.A. Test and as per
the D.N.A. Report, the DNA profile of applicant Chhotu Jatav
did not match with the DNA profile of the source of exhibit A
(two vaginal slides and swabs of the prosecutrix), whereas
the DNA profile of the co-accused Umesh Jatav matched
with the DNA profile of the source of exhibit A. Thus, the
police filed the charge sheet against Umesh Jatav only.

In her evidence, the prosecutrix re-iterated the entire
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allegations against the applicants, which she had made in
the F.I.R. and in her case diary statement.

Thus, the fact is that allegations of rape by Chhotu and
assistance by the applicants Shailendra and Rajaram were
made in the F.I.R., case diary statement as well as in the
evidence. If the entire facts and circumstances of the case
are considered in the light of the judgment passed by the
Supreme Court in the case of Hardeep Singh (Supra),
this Court is of the considered opinion, that there is
sufficient material which can be said to be strong material
showing the complicity or involvement of the applicants in
the commission of crime.

Thus, the Trial Court did not commit any mistake by
invoking jurisdiction under Section 319 of Cr.P.C. and by
summoning the applicants as an additional accused.

Accordingly, the order dated 2-1-2017 passed by the
Trial Court in S.T. No.45/2015 is hereby affirmed.

This Criminal Revision fails and is hereby dismissed.

(G.S. Ahluwalia)
Judge

*MKB*

MAHENDRA KUMAR BARIK
2017.11.23 17:12:53 +05’30’