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Nahar Singh Yadav vs The State Of Madhya Pradesh Thr on 18 June, 2018

THE HIGH COURT OF MADHYA PRADESH
1
CRR.387.2017
Nahar Singh Yadav
Vs.
The State of Madhya Pradesh

Gwalior, Dated : 18.06.2018
Shri R.K. Shukla, learned counsel for the
petitioner.
Shri D.S. Tomar, learned Public Prosecutor, for
the respondent/State.

1. Revisional powers of this Court u/s 397/401 of
Cr.P.C. are invoked to assail the order dated
25.02.2017 passed by the II Additional Sessions
Judge, Ashok Nagar (M.P.) in Special Sessions Trial
No.10/2016 by which an application under Section
319 of Cr.P.C. is allowed and the petitioner has been
made accused in an ongoing sessions trial relating to
offence of kidnapping and gang rape.
1.2 Pertinently, the trial against the petitioner in the
present case has been stayed by interim order
passed on 17.11.2017.

2. Learned counsel for the rival parties are heard
in the question of admission and final disposal.

3. Learned counsel for the petitioner by relying
upon the Single Bench decision passed on
20.12.2017 in Criminal Revision No.293/17
(Rajjan Vs. State of M.P. Another) and Michael
Machado and another Vs. Central Bureau of
Investigation and another [(2000) 3 SCC 262]
submits that the name of the petitioner neither
figured in the FIR nor in the statement of the
THE HIGH COURT OF MADHYA PRADESH
2
CRR.387.2017
Nahar Singh Yadav
Vs.

The State of Madhya Pradesh

prosecutrix recorded under Section 161 Cr.P.C.
However, the petitioner was falsely implicated in the
statement u/s 164 Cr.P.C. of prosecutrix and also in
her testimony before the trial court.

4. Learned counsel for the State while defending
the impugned order, primarily submits that there was
enough material before the Trial Court to have
exercised its jurisdiction u/s 319 of Cr.P.C. to array
the petitioner as an accused on the basis of
implicative revelations made by the prosecutrix in
her testimony.

5. Bare perusal of the order impugned along with
the application u/s 319 Cr.P.C. reveals that the trial
court was persuaded by the testimony of the
prosecutrix (PW-3) recorded on 08.08.2016 which
reveals in examination-in-chief, that the prosecutrix
who was in search of a job approached the petitioner
who happened to be Councillor at Nagar Palika,
Ashok Nagar, along with her academic documents.
The petitioner asked the prosecutrix to meet him at
Jagdamba Bhojanalaya. Prosecutrix reached
Jagdamba Bhojanalaya and met the petitioner who
took her on his scooty to Ashok Nagar bus-stand
where the petitioner told the prosecutrix that co-
accused Surendra and Deepak would arrange for a
job for her, for which she would be taken to Piprai.

THE HIGH COURT OF MADHYA PRADESH
3
CRR.387.2017
Nahar Singh Yadav
Vs.

The State of Madhya Pradesh

The prosecutrix, thereafter, testifies that she met co-
accused Deepak and Surendra at the bus-stand who
accompanied her by bus to Mungaoli railway station.
On the way, the prosecutrix told both the co-accused
that the petitioner had informed her that she would
be taken to Piprai then why has she been brought to
Mungaoli, to which the co-accused Deepak
responded that they will be visiting an aunt staying
at Piprai in the evening, whereafter the said two co-
accused took her to a room where the prosecutrix
became more apprehensive and suspicious. The
prosecutrix further testified that in the room both the
co-accused committed rape with her repeatedly for
eight days. Thereafter, both the said two co-accused
took the prosecutrix in a taxi to some village where
they stayed for 3-4 days where both the said co-
accused again committed rape with her. Thereafter,
both the said accused brought the prosecutrix to
Mungaoli by train and from there to Ashok Nagar by
bus. At Ashok Nagar bus-stand, accused Surendra
received a phone call from the petitioner, and the
prosecutrix further revealed that both the said co-
accused threatened and intimidated her of dire
consequences if she reveals to anyone of what
transpired with her. Thereafter, the prosecutrix
states that she met two police personnel who took
THE HIGH COURT OF MADHYA PRADESH
4
CRR.387.2017
Nahar Singh Yadav
Vs.

The State of Madhya Pradesh

her to the police station where she met the petitioner
who asked the prosecutrix not to reveal his name. In
her cross-examination, she further revealed, vide
para 19, that at the police station the petitioner was
present and he had threatened the prosecutrix of
dire consequences if she implicated the petitioner.
She has further denied in her cross-examination that
there was any animosity between her father and the
petitioner.

5.1 The important aspect about the testimony of the
prosecutrix is that she has expressed ignorance
about the omission in her 161 statement about the
fact that co-accused Surendra received a phone call
from petitioner when the prosecutrix was at Ashok
Nagar bus-stand with the co-accused Surendra and
Deepak. She further expressed ignorance about the
omission in her case diary statement of the fact that
when her statement was being taken at the Police
Station she was threatened by the petitioner.
5.2 Above testimony of the prosecutrix discloses
suspicion against petitioner of being involved in the
offence alleged by the prosecutrix. Though the
implication of the petitioner in the testimony of
prosecutrix is not supported by her earlier version
under Section 161 Cr.P.C. statement, however, in
para 19 of her testimony she has given a plausible
THE HIGH COURT OF MADHYA PRADESH
5
CRR.387.2017
Nahar Singh Yadav
Vs.

The State of Madhya Pradesh

explanation of this omission by testifying that she
was threatened by petitioner not to disclose about
his involvement.

5.3 Moreover, mere absence of implicative
statement in 161 Cr.P.C. of prosecutrix is not good
enough to demolish the implicative testimony where
the prosecutrix, for the first time, implicates a
particular person whose name had not been alleged
by her as earlier especially when she has reasonably
explained the omission.

5.4 The above analysis reveals that the trial court
had enough material in shape of implicative
testimony of the prosecutrix qua the petitioner to
create a strong suspicion of involvement of petitioner
in the offence alleged.

Now, the question which begs for an answer is
that since successful invocation of Section 319
Cr.P.C. is based on the criteria of more than strong
suspicion, does the testimony of the prosecutrix (PW-

3), in the present case, reveal a case of more than
strong suspicion against the petitioner or not?
5.5 If the implicative revelations made by the
prosecutrix are treated to be true then admittedly,
the petitioner seems to be connected with the
offence though in an indirect and conspiratorial
manner. He was instrumental in handing over the
THE HIGH COURT OF MADHYA PRADESH
6
CRR.387.2017
Nahar Singh Yadav
Vs.

The State of Madhya Pradesh

minor prosecutrix to the main co-accused on the
pretext that the said two co-accused would secure a
job for the prosecutrix. Whether the petitioner had
any such criminal intent of handing over the
prosecutrix to the co-accused for being subjected to
rape or for merely securing the job without any other
nefarious intention cannot be deciphered at this
stage when prosecution evidence is yet to be
adduced in entirety.

5.6 It all boils down to the intention (mens rea)
which may or may not have been nursed by the
petitioner against the prosecutrix but the same can
be inferred from the revelations made by the
prosecutrix in her testimony. However, the nature
and intensity of evidence against the petitioner
appears to lie somewhere between the realms of
“suspicion” and “more than strong suspicion”, but
considering the fact that intention or mens rea is
related more to mind than body, the same can
actually be deciphered on the adducing of evidence
of all the prosecution witnesses. This Court, thus,
leaves it to the Trial Court to decipher the presence
or absence of mens rea and come to a conclusion in
that regard by adducing evidence.

6. Consequently, this Court, in the peculiar facts
and circumstances of this case and also looking to
THE HIGH COURT OF MADHYA PRADESH
7
CRR.387.2017
Nahar Singh Yadav
Vs.

The State of Madhya Pradesh

the offence being one against women, declines
interference, lest substantial justice may not suffer at
the hands of technicalities.

6.1 Before parting, it would be appropriate to deal
with the judicial verdict of this Court dated
20.12.2017 in Criminal Revision No.293/17 relied
upon by petitioner. In the said case, the trial court
while allowing an application u/s 319 Cr.P.C. had not
taken into account the exculpatory DNA report which
was brought on record by the prosecution before the
trial court as a piece of corroborative evidence which
this Court held should have been taken into account
before deciding the question of arraying the
petitioner therein as an accused or not. Reliance by
this Court was placed in the said case on the
Constitution Bench decision in the case of Hardeep
Singh Vs. State of Punjab reported in (2014) 3 SCC
92 and also Brijendra Singh and others Vs. State of
Rajasthan (2017) 7 SCC 706. The case at hand does
not relate to omission or consideration of any
corroborative piece of evidence and therefore, the
said Single Bench decision dated 20.12.2017 is of no
avail to the petitioner. The other case of the Apex
Court in Michael Machado (supra) is also of no
avail to the petitioner since the same was attended
with circumstance where Section 319 Cr.P.C.

THE HIGH COURT OF MADHYA PRADESH
8
CRR.387.2017
Nahar Singh Yadav
Vs.

The State of Madhya Pradesh

application was allowed by the trial court at a
belated stage when as many as 54 prosecution
witnesses had been examined.

7. Accordingly, the present revision is dismissed
upholding the order dated 25.02.2017 passed by the
II Additional Sessions Judge, Ashok Nagar (M.P.) in
Special Sessions Trial No.10/2016.

(Sheel Nagu)
Judge
pd
Digitally signed by
PAWAN DHARKAR
Date: 2018.06.19
14:30:04 -07’00’

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