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Jeersingh And 3 Others vs State Of U.P. And Another on 17 January, 2024

Allahabad High Court

Jeersingh And 3 Others vs State Of U.P. And Another on 17 January, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD

Neutral Citation No. – 2024:AHC:9596

Reserved On: 10.10.2023

Delivered On: 17.01.2024

In Chamber

Case :- CRIMINAL REVISION No. – 3494 of 2023

Revisionist :- Jeersingh And 3 Others

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- Rajeev Chaddha

Counsel for Opposite Party :- G.A.,Dinesh Kumar Singh

Hon’ble Ram Manohar Narayan Mishra,J.

1.Heard Sri Rajeev Chaddha, learned counsel for the revisionists, learned counsel for the respondent No.2, learned AGA for the State and perused the material placed on record.

2.Instant criminal revision has been preferred against the impugned order dated 15.3.2023, passed by leaned Additional District and Sessions Judge/Special Judge, POCSO Act, Jalaun at Orai, in S.T. No. 180 of 2018, State vs. Rahul, arising out of Case Crime No.192 of 2018, under Sections 452, 376, 506 IPC, Police Station Kotwali Kalpi, District Jalaun, whereby the revisionists Jeer Singh, Hari Shankar, Ram Khilawan and Gyan Singh are summoned to face trial for charges under Sections 452, 376-D, 506 IPC in exercise of power under Section 319 Cr.P.C. on application of the informant, who is respondent No.2 in present petition.

4.The brief facts leading to filing of present revision are that the informant Vijay Kumar, lodged an FIR at police station Kalpi, District Jalaun on 31.8.2018, at 21:32 hours, by a written statement with allegations that on 31..8.2018, he went to Kurara, leaving her minor daughter aged around 15 yers in the home. His wife Saroj was at that time in Kalpi due to some work, on that date at around 10:00 AM, accused Rahul, who is his co-villager trespassed into his house and grabbed her daughter. He committed rape on her by closing room and thereafter other accused persons, namely Jeer Singh, Hari Shanker, Ram Khilawan and Gyan Singh also committed gang rape on her. His son when went back to home from school, saw these persons together with the victim and he informed him on his mobile phone. The accused persons threatened him with life if he dared to lodge a report of the incident. These people belong to a gang led by Gyan Singh. They engage in gunda activities and they used to commit sexual exploitation of girls of the locality. The FIR was lodged under Sections 452, 376-D, 506 IPC and Section ¾ of POCSO Act. The police investigated the case and recorded the statement of the victim under Section 161 Cr.P.C. through lady Constable and also got her statement recorded before the Magistrate under Section 164 Cr.P.C. The victim, in her statement under Section 161 Cr.P.C. has stated that the five named accused persons jumped into her house from the roof on 31.8.2018 at 4:00 AM. She is aged around 16 years and studied up to Class VIII. Out of these five accused persons, two people were inside the room and three were outside the room. Hari Shanker caught hold of her hand and Rahul pressed her mouth and committed rape on her. Thereafter, four accused persons left the place and Rahul was left with her. His brother reached thereafter and after seeing this, bolted the door from outside and informed the police on Dial 100. Similar statement was given by the victim in her statement before the Magistrate, in which she also assigned specific role of commission of rape against Rahul and stated that Hari Shanker had caught hold of her hand during course of commission of rape by Rahul. She also stated that after the incident, she became unconscious and could not recollect as to who did what with her thereafter. Jeer Singh was all with a countrymade pistol and Rahul and Hari Shanker had threatened her prior to entering into her room. The main entrance of the house was closed but her own room was open at that time. On information of his brother, the police reached there and took Rahul alongwith them. The accused persons had threatened that they would kill her brother. The mother of the victim Sarojani and informant supported the FIR version in their statement recorded under Section 161 Cr.P.C. The Investigating Officer filed chargesheet against main accused Rahul and concluded that the naming of other accused persons was found false and no offence under Section 376- IPC and POCSO Act was found to be made out and submitted chargesheet against Rahul for charge under Sections 376, 452 and 506 IPC.

5.On commencement of trial, the trial court framed charge against accused Rahul for these penal sections. The prosecution examined PW-1, the informant Vijay and PW-2, the victim as witnesses of fact and after recording of their evidence, an application under Section 319 Cr.P.C. was moved by the informant with averment that on the basis of evidence of PW-1 and PW-2, the complicity of all the five named accused persons including Rahul, who is already facing trial, is established. The police wrongly dropped the name of other named accused persons in chargesheet in spite of availability of material against them in FIR as well as during investigation. The informant and the victim have stated regarding complicity of all the named accused persons in their sworn testimony before the Court as PW-1 and PW-2. Therefore, the other accused persons named in FIR are also liable to be summoned to face trial for said charges together with the accused Rahul, who is already facing trial.

6.Learned court below allowed the application by impugned order dated 15.6.2023, after considering the submissions of learned counsel for the parties and material placed on record, placing reliance on judgement of Hon’ble Apex Court in Vikash Rathi vs. State of UP and others, 2023 Live Law (SC) 172 and Hardeep Singh vs. State of Punjab and others (2014) 3 SCC 92. The learned trial court has observed that in present case, the complicity of proposed accused persons namely, Jeer Singh, Hari Shanker, Ram Khilawan and Gyan Singh is shown by the witnesses in their statement before the Court as PW-1 and PW-2. They are named in the FIR and PW-1 and PW-2 has stated about their complicity in the offence in their statement under Sections 161/164 Cr.P.C. during investigation. Their is more than prima facie case appearing against the proposed accused persons to summon them in exercise of power under Section 319 Cr.P.C. and there is ground to summon them for alleged offences. Present case is directed to be decided within a year by this High Court vide order dated 5.8.2019. The court below has summoned the proposed accused persons whoa re revisionists before this Court for charges under Sections 452, 504, 376-D IPC through summon and directed day to day hearing of the case in compliance of order of this Court.

7.Learned counsel for the revisionists submitted that the victim has made specific allegations of commission of rape against the accused Rahul, who is chargesheeted and facing trial before the Court. She has attributed specific role of commission of rape on her against accused Rahul in her statement under Section 164 Cr.P.C. and has stated that at that time Hari Shanker had caught hold of her hand, which is unnatural. General allegation of house trespass is levelled against all the named accused persons in FIR as well as in statement of witnesses recorded during investigation and trial.. The version in FIR and statement of the parents of victim during investigation that the accused Rahul had called other accused persons through mobile phone, who appeared at the place of victim and also committed rape on her, is not corroborated by the statement of victim. PW-1 has stated in his evidence that his son Ajit had received first hand information of the incident when he returned home from school. He got written report scribed by some unknown person, who has not given his name and particulars therein and filed the same at police station after affixing his thumb impression. He also affixed his thumb impression at police station on asking of police personnel. He was present in Kurara on the date of incident, which is 20 to 25 kms. Away from his home. The incident occurred at his native place. He has feigned ignorance of the fact that the police had not chargesheeted other accused persons except Rahul. He also stated that his daughter has studied up to Class VIII but he is not aware of her date of birth. PW-2, the victim has stated her age is 22 years, in her evidence, which was recorded after four years of the incident. She stated therein that she had told about the incident to her brother and father. Police took her at police station and his brother detained Rahul in the room. She has again stated that police took both of them. The victim as well as accused Rahul together with them and she was medically examined at Kalpi at the instance of police. The victim has admitted that the accused Rahul belongs to her community (Nishad). She knows Rahul since childhood and he is her co-villager. She has also admitted that she did not hand over her torn clothes to police. Her clothes were not soiled or blood stained due to the incident. He next submitted that the learned court below has summoned the accused persons without sufficient grounds. The revisionists are falsely implicated in the case. They have committed no offence. The impugned order is contrary to the settled principle of law as propounded by Hon’ble Apex Court from time to time.

8.Learned counsel for the revisionists lastly submitted that the informant Vijay has supported the revisionists version in his counter affidavit dated 10.9.2023 and categorically stated therein that he included the name of the revisionists in FIR at the behest of some villagers, who has inimical relations with the revisionist. After summoning of the accused persons under Section 319 Cr.P.C., the victim, who is daughter of the deponent of counter affidavit, stated to him that the revisionists were not present on the spot at the time of commission of the offence and after coming to know the aforesaid fact, he entered into a compromise with the revisionists, so that no injustice would be caused to them, due to fault of the deponent and his daughter- the victim.

9.The deponent of the counter affidavit also stated that as the deponent/informant has now come to know the correct facts of the case after summoning of the revisionists under Section 319 Cr.P.C. and he has entered into a compromise with the revisionists, he is not inclined to oppose the present revision. He and his daughter are not inclined to proceed with the trial against the revisionists.

10.Per contra, learned AGA submitted that accused revisionists are rightly summoned and the revisionists are named in the FIR. They are assigned active role in the offence in spite of the fact that the victim has attributed role of commission of rape on her specifically against co-accused Rahul, who is already facing trial. He also submitted that after recording of sworn testimony of PW-1 and PW-2 before the trial court, there no is relevance or significance of the counter affidavit of the informant/respondent No.2 in present revision in respect of the revisionists version, as the same does not comes within the definition of ‘evidence’ as envisaged under Section 319 Cr.P.C. Inasmuch as the filing of application under Section 319 Cr.P.C. against present revisionists is not denied by respondent No.2, even at this stage.

11. The Apex Court in Hardeep Singh Versus State of Punjab, 2014(3) SCC 92 has held as follows:

“Power under Section 319, Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

Thus, we hold that though only a prima face 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.”

12. In Brijendra Singh and another Versus State of Rajasthan (2017) 7 SCC 706, the Apex Court has made following observations:

“13. In order to answer the question, some of the principles enunciated in Hardeep Singh’s case may be recapitulated:Power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e.,before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ‘evidence’ against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The ‘evidence’ herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt,such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses,can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.”

13. The power conferred to the trial court to summon an accused under Section 319 Cr.P.C. is although a discretionary power, but it is an extraordinary power and it should be exercised sparingly and with cautious approach. There must be cogent and sufficient evidence. In the present case, the trial court has completely ignored the grounds on which the revisionist-accused was exonerated by the Investigating Officer.

14.In the present case, the date of birth of the victim is shown as 3.6.1999 in her academic documents, a copy thereof is collected by the Investigating Officer during investigation and he also recorded statement of Head Master of the school, where the victim received education during period 2011-2013, this reveals that the victim was of more than 19 years of age at the time of incident and was major and for that reason, the charge-sheet has not been filed in the case for penal sections under POCSO Act. This fact is significant that according to the own statement of the victim as PW-2 when his brother reached at the place of incident from school, he found her as well as accused Rahul there and he locked Rahul in the room and informed the police thereafter police came and took both of them together at police station. The presence of other revisionists was not found by the brother of the victim at the place of incident after the alleged incident. These important facts were not noticed by learned court below while passing impugned order. It appears that some compromise has arrived between the informant and revisionists after passing of impugned summoning order under Section 319 Cr.P.C. against the revisionists. Although, said compromise is not of much significance in itself due to the fact that the offence is non compoundable and of serious nature. However, keeping in view the totality of facts and circumstances of the case, the averments of the complainant in his counter affidavit and law laid down by the Apex Court in aforesaid judicial authorities, this Court is of considered view that the learned court below summoned the accused revisionists to face trial in exercise of power under Section 319 Cr.P.C. together with the accused Rahul, who is already facing trial without sufficient, cogent and reliable evidence in the nature of 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, could lead to conviction. In the absence of such prima facie case for satisfaction of the trial court, summoning of accused-revisionist for said offences in exercise of powers under Section 319 Cr.P.C. is not sustainable and liable to be set aside.

15.Resultantly, present criminal revision stands allowed and the impugned order dated 15.6.2023, passed by the learned trial court against the revisionists is set aside.

16.Let a copy of this judgement be sent to court concerned for information and necessary compliance.

Order Date :- 17.1.2024

Kamarjahan

 

 

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