HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. – 13
Case :- U/S 482/378/407 No. – 3773 of 2011
Applicant :- Rajendra Kumar Jaiswal And Anr.
Opposite Party :- The State Of U.P And Anr.
Counsel for Applicant :- R.B.S Rathaur
Counsel for Opposite Party :- Govt. Advocate
Hon’ble Dinesh Kumar Singh,J.
1. The present petition under Section 482 Cr.P.C. has been filed by the petitioners who are the real brothers aggrieved by the order dated 10.08.2011 passed by the learned Additional Sessions Judge, Court No.8, Pratapgarh in Sessions Trial No.21 of 2011 summoning the petitioners as additional accused for offence under Section 376 IPC.
An FIR at Case Crime No.516 of 2009 under Section 363/366 IPC came to be registered against five accused on a complaint of the mother of the prosecutrix alleging that in the morning of 29.10.2009, the prosecutrix aged about 16 years was enticed away by the accused named in the FIR.
It was also alleged that the prosecutrix was given bait of securing her employment. The incident is dated 29.10.2009, however, the FIR came to be registered on 25.12.2009. The prosecutrix remained with accused, Lal Bahadur in Ludhiyana, Punjab. The prosecutrix travelled by public transport more than 600 kms but she did not raise any alarm or complained to anyone regarding any misdeed against her by any accused.
2. It is important to mention here that the petitioners who are real brothers and one of them Harendra Kumar Jaiswal was 80% handicapped, were not named in the FIR. The prosecutrix thereafter, came back from Ludhiyana and she was examined medically. In her medical examination, a fetus of 9 weeks was found.
3. Statement of the prosecutrix under Section 161 Cr.P.C. was recorded on 03.03.2010. She did not name the two petitioners involved in any manner in the commission of the alleged offence. Allegation was that she went with Lal Bahadur @ Vinod on the pretext of getting employment and from Pratapgarh, she went to Delhi and from Delhi to Ludhiyana.
4 In her statement recorded under Section 161 Cr.P.C. she said that she met with an advocate, Santosh who was called by her mother. Strangely enough when the petitioners, who are real brothers, were not named in the FIR and, in the statement recorded under Section 161 Cr.P.C., she after consulting her lawyer in her statement recorded under Section 164 Cr.P.C. named them also to have involved in commission of the offence.
5. The Police after investigating the offence, filed charge-sheet against five accused who were named in the FIR but did not find any evidence against the petitioners herein and, therefore, they were not named in the charge-sheet. After framing the charge, the case was put to trial. The prosecutrix was examined as P.W.3. From perusal of the statement, it is evident that she said that she had said much more before the learned Magistrate and her statement recorded under Section 164 Cr.P.C. was not correct recording what she had said before the learned Magistrate. In her first examination-in-chief she did not make any allegation against the petitioners, however, in her cross examination she had alleged commission of offence of rape by the two brothers together in a room.
6. Learned counsel for the petitioner, Mr. R.B.S. Rathaur submits that without there being any cogent, credible and reliable evidence available on record, learned trial Court has summoned the petitioners as additional accused to be tried with other accused for offence under Section 376 IPC. He further submits that power under Section 319 Cr.P.C. is an extraordinary power and should be used sparingly. Unless and until there is cogent, credible and reliable evidence available on record, the trial Court should not exercise this power to summon a person who is not an accused in the commission of the offence for trial with other accused before the Court. He further submits that the petitioners, who are real brothers and one of the them is 80% handicapped, were not named in the FIR and, the police did not find any evidence against them, therefore, charge-sheet was not filed against them. The prosecutrix in her examination-in-chief did not name them. She named them only after she was tutored by her lawyer in her cross-examination and before that statement recorded under Section 164 Cr.P.C. He, therefore, submits that this piece of evidence cannot be said to be credible, cogent and reliable. However, the trial Court relying on the said evidence has summoned the accused and, therefore, the order suffers from gross illegality and is liable to the set aside.
7. On the other hand, Mr. Balram Singh, learned A.G.A. submits that the prosecutrix in her statement recorded under Section 164 Cr.P.C. as well as in her cross-examination has specifically named the petitioners in the commission of the offence under Section 376 IPC. Defence of the accused cannot be considered at this state when there is statement by the prosecutrix herself for commission of the offence by the petitioners. This Court should not interfere with the impugned order and, this petition is liable to be dismissed.
8. I have considered the rival submissions advanced by the learned counsel for the parties and gone through the entire record of the case.
9. Power under Section 319 Cr.P.C. is an extraordinary power. A person who is not before the Court as an accused is summoned by exercising the power under Section 319 Cr.P.C. as additional accused to be tried with other accused who are before the Court. It is well settled that powers under Section 319 Cr.P.C. to summon a person as additional accused to face trial with other accused who are before the Court is an extraordinary power and it should be used sparingly. Unless and until there is evidence which is cogent, credible and reliable available on record, the trial Court should not summon a person as additional accused.
10. The question which needs to be considered in the present case is whether the evidence available with the trial Court is said to be cogent, credible and reliable. In the statement of the prosecutrix recorded under Section 161 Cr.P.C. she did not name the petitioners as accused. After she met with her lawyer, she named them in her 164 Cr.P.C. statement, however, in her deposition before the Court she had said that her correct and full statement was not recorded under Section 164 Cr.P.C. and, therefore, statement recorded under Section 164 Cr.P.C. loses its importance. The prosecutrix in her examination-in-chief did not name the accused. It appears that only after she was tutored by her lawyer, she named them in cross examination.
11. The question which falls for consideration is that whether this piece of evidence of the prosecutrix can be said to be cogent, credible and reliable to summon the petitioners as additional accused which is sine qua non for exercise of power under Section 319 Cr.P.C. by the trial Court. It is unconscionable and unbelievable that two real brothers would commit rape simultaneously on the prosecutrix at one place. It is also to be noted that one of the petitioners is 80% handicapped.
12. Considering these facts and circumstances of the case, this Court finds that the evidence/deposition of the prosecutrix so far as relates to the petitioners is neither cogent nor credible nor reliable, therefore, impugned order passed by the learned trial Court suffers from illegality and perversity and same is set aside.
13. The petition is allowed.
Order Date :- 14.1.2020