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2012 DIGILAW 1416 (RAJ)

Hajari Lal v. State of Rajasthan

2012-05-31

NISHA GUPTA

body2012
JUDGMENT 1. - This revision petition has been filed against the order dated 3.5.2012 passed by the learned Additional Sessions Judge, Bandikui District Dausa whereby the cognizance has been taken against the present petitioner under Section 319 Criminal Procedure Code 2. The contention of the present petitioners is that application under Section 319 Criminal Procedure Code has been filed with ulterior motive to prolong the trial of the case so that the accused persons who are in jail remain there for longer period. There are significant contradictions in the statement of the prosecutrix. The prosecutrix has improved her version regarding rape by Rameshwar Lal and Ramphool. Other eye-witnesses have not been examined before the trial Court and hence the application is also premature and the cognizance order should be quashed. 3. Per contra, the counsel for the complainant and the learned Public Prosecutor have submitted that the prosecutrix in her statement under Section 164 Criminal Procedure Code and in her Court's statements has specifically stated against the present petitioners that Dinesh, Bhola and Hajari and others have abducted her and all the three with other accused persons have raped her. At the same time, specific allegations have been alleged against Mohan Singh, Muni Raj and Vikram regarding rape with prosecutrix at Mandawar. The statement under Section 164 Criminal Procedure Code has been further fortified by her statement given in Court and looking to the statement of the prosecutrix, the cognizance has rightly been taken against the present petitioners. 4. Heard learned counsel for the parties and perused the impugned order. 5. The statement under Section 164 Criminal Procedure Code has been further fortified by her statement given in Court and looking to the statement of the prosecutrix, the cognizance has rightly been taken against the present petitioners. 4. Heard learned counsel for the parties and perused the impugned order. 5. The contention of the present petitioners is that nothing has been alleged against them in the statement of the prosecutrix recorded under 161 Criminal Procedure Code The learned Public Prosecutor and the complainant have submitted that the statement under Section 161 Criminal Procedure Code cannot be looked into while entertaining the application under Section 319 Criminal Procedure Code Reliance has been placed on Rajindra Singh v. State of U.P. and Anr., AIR 2007 SC 2786 , wherein it has been held as under: "The statements of six witnesses which had been recorded by the Investigating Officer under Section 161 Criminal Procedure Code cannot be relied upon to record a positive finding that the respondent-accused, who was sought to be summoned and tried by prosecution under Section 319 Criminal Procedure Code could not have been present at the scene of commission of the crime. A statement under Section 161 Criminal Procedure Code is not a substantive piece of evidence. In view of the proviso to sub-section (1) of Section 161 Criminal Procedure Code, the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, relying upon said wholly inadmissible evidence in recording a finding that respondent could not have been present at the scene of commission of the crime was improper." 6. Hence looking at the above, statement under Section 161 Criminal Procedure Code, is not relevant while considering the application under Section 319 Criminal Procedure Code 7. The other contention of the present petitioners is that after thorough investigation, the police has opined that no case is made out against the present petitioners and hence the cognizance taken against them is bad in law but the contention of the petitioners is unacceptable as if the report of the Investigating Officer is determinative then power under Section 319 Criminal Procedure Code would be of nullity. Section 319 Criminal Procedure Code deals with situation where in spite of the evidence against the person, the Investigating Officer has not filed positive report under Section 173 Criminal Procedure Code and this view' has been fortified by the judgment in Y. Saraba Reddy v. Puthur Rami Reddy and Ors., AIR 2007 SC (Supp) 981 , wherein it has been held that if satisfaction of Investigating Officer is to be treated as determinative, then the very purpose of Section 319 Criminal Procedure Code would be frustrated. If the Court is satisfied that any other accused has committed an offence and he is to be tried together with the accused, such power is discretionary and such discretion must be exercised judiciously. Hence, the conclusion and opinion of the Investigating Officer is irrelevant for considering the application under Section 319 Criminal Procedure Code Further, reliance has been placed on Rakesh v. State of Haryana, AIR 2001 SC 2521 (1). 8. The contention of the present petitioners is that statement of the prosecutrix is self-contradictory and cannot be relied upon. Reliance has been placed on Kavuluri Vivekananda Reddy and Anr. v. State of A.P., 2006(1) WLC (SC) (Cri) 369 , Duni Chand v. State of Rajasthan and Ors., 2004(1) Cr.L.R. (Raj.) 582 , and Laxman Rani Meghwal and Ors. v. State of Rajasthan, 2005(4) RLW 2492 , wherein looking to the significant contradictions and improvements, orders have been passed. But, In the present case, the prosecutrix has specifically stated against the present petitioners in the statement under Section 164 Criminal Procedure Code and in her Court statement. The contention of the present petitioners is that some improvements or contradictions have been stated regarding role of other persons, viz., Rameshwarlal and Ramphool. Be that may be the case. Rameshwarlal and Ramphool are not the petitioners in the present petition. Hence, contradiction in that regard is not relevant for the purpose of considering the application under Section 319 Criminal Procedure Code for the present petitioners. 9. Be that may be the case. Rameshwarlal and Ramphool are not the petitioners in the present petition. Hence, contradiction in that regard is not relevant for the purpose of considering the application under Section 319 Criminal Procedure Code for the present petitioners. 9. It has also been stated that statements of eye-witnesses have not been recorded but the evidence, which has been produced before the trial Court suggests that there is sufficient evidence and prima facie material to enable the Court to decide whether a person not arrayed before it, who is involved in the crime, could be arrayed as an offender under Section 319 Criminal Procedure Code and hence the contention of the present petitioners that application is premature is unsustainable. 10. Further, it has been submitted that application has been filed to prolong the trial. The present petitioners are not facing trial yet and hence this contention does not lie in the mouth of the petitioners. 11. The learned trial Court has considered the material available on the record and rightly framed the opinion that the present petitioners should be arrayed as accused persons to be tried with the other accused under Section 319 Criminal Procedure Code.Looking at the above, this revision petition is devoid of any merit and liable to be,dismissed and is hereby dismissed.Revision dismissed. *******