1
HIGH COURT OF MADHYA PRADESH
Cr.R.No.4806/2018
Sonam @ Karishma Singh
Vs.
State of M. P.
Jabalpur, dated:12.11.2018
Shri Arubendra Singh Parihar, counsel for the petitioner.
Shri Mohit Nayak, Government Advocate for the
respondent/State.
Heard on admission.
This criminal revision under Section 397 read with Section
401 of the Cr.P.C. is directed against order dated 5.9.2018 passed
by the Court of learned First Additional Sessions Judge,
Amarpatan, District Satna in Sessions Trial No.120/2017 whereby,
an application under Section 319 of the Cr.P.C. filed on behalf of
the victim was dismissed.
The facts giving rise to this criminal revision may be
summarized as hereunder: Petitioner/victim, who is a 20 years old
unmarried girl, lodged a first information report in police station
Amarpatan, District Satna, at about 2:11 p.m. on 26.2.2017 to the
effect that at about 8:00 p.m. on 25.2.2017, she was going towards
the field of accused Nagendra Singh to ease herself. At that time,
Nagendra Singh came from behind, caught hold of her hands,
dragged her behind a mango tree and raped her twice or thrice. He
let her go at about 6:30 a.m. the next morning after threatening her
that if she disclosed the matter to anyone, he would kill her.
In her statement under Section 161 of the Cr.P.C. recorded
the same day, the prosecutrix reiterated the same allegations;
however, in her statement under Section 164 of the Cr.P.C.
recorded the next day, i.e., on 27.2.2017, she alleged that Mukesh
Singh, brother of accused Nagendra Singh, had also participated in
the incident and both the brothers had clamped her mouth shut
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HIGH COURT OF MADHYA PRADESH
Cr.R.No.4806/2018
Sonam @ Karishma Singh
Vs.
State of M. P.
with their hands and accused Nagendra Singh had raped her. The
police filed charge sheet only against accused Nagendra Singh. In
her statements before the Court during the trial, the prosecutrix
repeated the allegation that both Nagendra Singh and Mukesh
Singh had caught hold of her and Mukesh Singh raped her. After
recording the statements of prosecution witnesses Dr. Jaspal
Beena, Sheshmani Singh, Dr. Savendra Singh, Rambhan Singh,
Haricharan Singh and Sarvesh Singh, an application was moved
under Section 319 of the Cr.P.C. on behalf of the prosecutrix to
implead Mukesh Singh also as accused in the case. Aforesaid
application was dismissed by the trial Court by impugned order
dated 5.9.2018.
The impugned order has been challenged by learned counsel
for the petitioner mainly on the ground that the prosecutrix has
stated in her deposition that the written report that had been lodged
by the prosecutrix was in fact written by the police and she had
only signed the same. It has also been submitted that the statement
under Section 164 of the Cr.P.C. was not made after any delay but
on the next day. In these circumstances, the application under
Section 319 of the Cr.P.C. deserves to be allowed and accused
Mukesh Singh impleaded in the matter as an accused.
A perusal of the charge sheet reveals that the first
information report had been lodged on the basis of a written report
that was signed by the prosecutrix. In that report there was no
mention of the name of Mukesh Singh. There is no mention either
that any person other than accused Nagendra Singh participated in
the incident and was even present on the spot. Similarly no
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HIGH COURT OF MADHYA PRADESH
Cr.R.No.4806/2018
Sonam @ Karishma Singh
Vs.
State of M. P.
mention has been made of the presence of Mukesh Singh in the
statement of the prosecutrix recorded by the police under Section
161 of the Cr.P.C. either. However, on the next date, i.e., on
27.2.2017, the prosecutrix alleged that Mukesh Singh, who is
brother of Nagendra Singh had also participated in the incident.
The prosecutrix was well acquainted with both alleged
offenders. The families of the accused and the prosecutrix were on
inimical terms. There is absolutely no explanation as to why the
prosecutrix failed to mention the name of Mukesh Singh in the
first instance as one of the perpetrators. In these circumstances the
prosecutrix cannot be allowed to abuse section 319 to implicate an
accused at a later stage.
The Supreme Court has held in the case of Hardeep Singh
Vs State of Punjab, AIR 2014 SUPREME COURT 1400 that
Power under S. 319, Cr. P.C. is a discretionary and an
extraordinary 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, 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
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HIGH COURT OF MADHYA PRADESH
Cr.R.No.4806/2018
Sonam @ Karishma Singh
Vs.
State of M. P.
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 S. 319, Cr. P.C. In S. 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 S. 319, Cr. P.C. to form any opinion as to the guilt of the
accused.
In aforesaid circumstances, learned trial Court committed no
illegality, irregularity or infirmity in passing the impugned order
and no interference in the impugned order is warranted in the
revisionary jurisdiction of the High Court.
Consequently, this criminal revision deserves to be and is
accordingly dismissed in limine.
(C.V. Sirpurkar)
Judge
ahd
Digitally signed by MOHD AHMAD
Date: 2018.11.12 21:27:34 -08’00’
