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2013 DIGILAW 1218 (RAJ)

Kanhaiya Lal Yadav v. State of Rajasthan

2013-07-08

NISHA GUPTA

body2013
JUDGMENT 1. - This Criminal Revision Petition has been filed against the order dated 14/09/2011 passed by Additional Session Judge (Fast Track) No. 2, Bharatpur in Session Case No. 64/2010, whereby cognizance has been taken against the present petitioners for the offences under Sections 363, 366 and 354 IPC. 2. The short facts of the case are that complainant, Sunheri Lal submitted a written report at Police Station Chiksana, District Bharatpur on 11/02/2010. After lodging of the FIR, prosecutrix, Preeti has been recovered from Agra Railway Station and she was produced before the concerned Magistrate. She herself has declined to be medically examined. Her statement under Section 161 CrPC has been recorded, where she has not impleaded anybody and more particularly not impleaded the present petitioners. Thereafter, her statement under Section 164 CrPC has been recorded. After investigation, Police filed a negative report in favour of present petitioners. During trial, application under Section 319 CrPC has been filed for taking cognizance against the present petitioners and the Court below has taken cognizance against the present petitioners, which is bad in law. 3. Contention of the present petitioners is that in statement recorded under Section 161 CrPC, name of the present petitioners has not been mentioned. At the time of recovery, Preeti has not stated anything against the present petitioners. She has declined to be medically examined. Thereafter a false, fabricated and baseless story to implead the present petitioners have been created and Court below has taken the cognizance in a mechanical manner, without appreciating the evidence. His further contention is that there is an established enmity between the parties and this fact has not been considered by the Court below. His further contention is that witnesses have also not stated anything against the present petitioners in their statements recorded under Section 161 CrPC, hence, cognizance be quashed. 4. Per contra, contention of the complainant is that in statement under Section 164 CrPC, specific allegation has been lodged against the present petitioners and at the stage of 319 Cr.P.C., only evidence recorded during the trial only could be looked into and in the Court statement, prosecutrix has stated against the present petitioners and there is no infirmity in the impugned order. Court below has considered the Court statement as well as the statement recorded under Section 164 CrPC of the prosecutrix and rightly ordered cognizance against the present petitioners. 5. Court below has considered the Court statement as well as the statement recorded under Section 164 CrPC of the prosecutrix and rightly ordered cognizance against the present petitioners. 5. Heard learned counsel for the parties and perused the impugned order as well as the photocopies of the relevant documents produced by both the parties. 6. It is not in dispute that in the statement recorded under Section 161 CrPC, nothing has been alleged against the present petitioners, but the contention of the complainant is that at the time of taking cognizance under Section 319, statement under Section 161 CrPC could not be relied upon and reliance has been placed on Rajendra Singh v. State of U.P., AIR 2007 SC 2786 , where it has been held:- "The statements of six witnesses which had been recorded by the Investigating Officer under Section 161 Cr.P.C. 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 Cr.P.C. could not have been present at the scene of commission of the crime. A statement under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of Section 161 Cr.P.C., 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". 7. In view of above, statement recorded under Section 161, it is not a relevant consideration, while considering application under Section 319. 8. It is not in dispute that in the Court's statement, specific allegations have been made against the present petitioners. The contention of the present petitioners is that the statement of Kumari Preeti are not reliable, but at the time of taking cognizance under Section 319, realibility of the evidence cannot be weighted minutely. 9. Other contention of the petitioners is that they were having inimical relation with the complainant party, but this fact is also irrelevant at the time of taking cognizance under Section 319. 10. 9. Other contention of the petitioners is that they were having inimical relation with the complainant party, but this fact is also irrelevant at the time of taking cognizance under Section 319. 10. Further contention of the present petitioners is that only a prima-facie view would not be enough to call a person under Section 319 and reliance has been placed on (2009) 14 SCC 25 , Ram Singh & Ors. v. Ram Niwas & Anr. It is true that at the time of taking cognizance under Section 319, only prima-facie evidence is not sufficient. Much higher proof of standard is needed. Here in the present case, in para No. 13, the Revisional Court has clearly of the opinion that evidence of such nature should be there from which fair chance of conviction could be ascertained and in the light of above, it has been opined that a reliable evidence has been there to try the present petitioners with other co-accused persons, hence, the contention of the present petitioners that only on prima-facie view, cognizance has been taken is not sustainable. Reliance has also been placed on (2011) 13 SCC 316 , Sarojben Ashwinkumar Shah & Ors. v. State of Gujarat & Anr. , wherein provision of Section 141 Negotiable Instruments Act has not been taken care, while taking cognizance under Section 138 of the Act, which is not the case here. Further reliance has been placed on Criminal Law Reporter, 2012(3) Cr.L.R. (Raj.) 1676, Ram Chandra & Ors. v. State of Rajasthan & Anr. , where no reliable evidence was available on record. Only doubt regarding their involvement has been stated. Here in the present case, the prosecutrix has specifically stated the roll of the present petitioners. Earlier statement under Section 164 CrPC, allegations have been lodged against the present petitioners and statement of prosecutrix has been further fortified by the statement of PW.2 Satyaveer, and PW.5 Shyam Singh. Looking to the fact that specific allegations have been lodged against the petitioners, jurisdiction has been rightly exercised. There is no infirmity in the impugned order. The revision petition is liable to be rejected and the same is hereby rejected.Revision Petition dismissed. *******