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2019 DIGILAW 1000 (ALL)

Puneet Gupta v. State of U. P.

2019-04-19

RAHUL CHATURVEDI

body2019
JUDGMENT : RAHUL CHATURVEDI, J. 1. Heard Sri VM Zaidi, learned senior Advocate assisted by Sri MJ Akhtar for the revisionist, Sri Adesh Kumar, learned counsel for private opposite party, learned AGA and perused the record. 2. By means of the instant revisionist, the revisionist has targeted judgment and order dated 08.03.2019 passed by the II-Additional Session Judge/Special Judge (SC/ST Act), Meerut in S.T. No. 21 of 2018 (State v. Sonu and others), arising out of Crime No. 206 of 2018, under section 319 Cr.P.C. whereby the applicant Puneet Gupta s/o Harikishan Gupta and along with one Bharat Bhushan s/o Kailash Chand were summoned under sections 376-D IPC and 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, P.S. Ganganagar, District Meerut. 3. Perusal of the record reveals that the genesis of the case ignites from the FIR lodged by none other but the victim herself, belonging to a depressed caste (Harijan) and Intermediate pass girl, aged about 18 years was in search of employment and later on she got employment in a big and well reputed business establishment known as M/s RT Motors/Jai Shree Marking, situated near Hapur Adda, Meerut on 05.07.2018, which was having business of sale and purchase of cars but on the very next date of her new appointment, one of her top hierarchies, claimed as "Boss", named Bharat Bhushan dropped her home by his car with the assurance that on the next date he will pick up from her residence. On 07.07.2018, the fateful day, around 12.00 to 1.30 hours, instead of taking her to the establishment, the accused Bharat Bhushan took her to a deserted place and there he ravished her modesty, thereafter, he invited his close friends namely; Punit Gupta (applicant) and Sonu Nayak, who also committed rape upon her one by one and Sonu Nayak made video clips of her with the threats that they will continue to do the same, otherwise aforesaid video would be made viral, if she informs anyone about it. FIR, dated 07.07.2018 at 21.30 hours was registered as Case Crime No. 206 of 2018, under the aforesaid offence at P.S. Ganganagar, District Meerut for the incident occurred on the same day at 14.00 hours. After lodging the aforesaid FIR, investigation of the case started rolling and on 07.07.2018 at about 11.10 P.M. she was produced for medico-legal examination before Dr. After lodging the aforesaid FIR, investigation of the case started rolling and on 07.07.2018 at about 11.10 P.M. she was produced for medico-legal examination before Dr. Shikha Tripathi, Medical Officer, CHC Jani Khurd (Panchli Khurd), Meerut wherein she stated before the aforesaid doctor, which is hereby extracted from the record: ^^vkt 7&7&18 yxHkx 1-30 ih0,e0 ij HkjrHkw"k.k eq>s 'kfu efUnj xaxkuxj ls cgku ls fdlh vutku txg ys x;k] ogkW dejs esa eq>s cqyk;k] ogkW igys ls nks yM+ds lksuw vkSj fodh cSBs Fks] FkksM+h nsj esa iquhr Hkh vk x;k vkrs gh mlus njoktk vanj ls cUn fd;k] eSaus iwNk fd njoktk can D;ksa fd;k] iquhr vkSj lksuw ohfM;ks cukus yxs] Hkjr us igys esjs lkFk xyr dke fd;k] mlds ckn foDdh us esjs lkFk xyr dke fd;k] fQj mUgksaus cksyk fd vxj rqeus ?kj ij dqN crk;k rks rqEgkjh ohfM;ks ?kjokyksa dks Hkst nwaxk] vkSj iquhr us FkIIkM+ ekjk] mlds ckn Hkjr us eq>s 'kfu efUnj] xaxkuxj ij NksM+ fn;k] ?kj vkds eSaus cgu vkSj ekW dks iwjh ckr ckr crkbZ fQj 6&6-30 cts xaxkuxj Fkkus x,A^^ 4. In the aforesaid statement, the alleged victim disclosed the name of the assailant has been referred as Bharat Bhushan, Puneet Gupta (claimed Bosses of the company), Sonu Tyagi (unknown) and Vicky (unknown). The doctor after conducting aforesaid medical examination opined that the alleged victim was having 'white discharge' and 'tenderness' over her 'vaginal area' though there was no sign of forcible sexual act at the time of the medical examination but sexual assault cannot be ruled out. 5. Thereafter, the police recorded statement under section 161 Cr.P.C. of the victim, which is annexed as annexure 9 to the affidavit, wherein she broadly reiterated the FIR version by giving vivid description of the incident specifically attributing specific role to the all the assailants, who ravished her modesty and snapped obscene pictures and shot videos. Thereafter, the alleged victim was put for statement under section 164 Cr.P.C. on 23.07.2018 wherein she candidly stated that on 5th July, 2018 she joined in the show room of the company, referred herein above, and was working as a "Caller" therein. She further alleged, without mincing words, therein that the heinous of sexual assault upon her was committed by Bharat Bhushan, Puneet Gupta, Sonu Tyagi and one more person Vicky shot obscene video clips of her. She further alleged, without mincing words, therein that the heinous of sexual assault upon her was committed by Bharat Bhushan, Puneet Gupta, Sonu Tyagi and one more person Vicky shot obscene video clips of her. Not only this, the alleged culprits committed unnatural sex by putting their male genitals in her mouth. 6. It is million dollars question and startling feature of the instant case that ignoring the text mentioned in the FIR, statement made before the doctor as well as the statements recorded under sections 161 and 164 Cr.P.C., by broadly corroborating the medical evidence, Sri Jitendra Kumar, Circle Officer, Sadar Dehat, District Meerut concluded the entire investigation, subtracting the involvement of accused persons namely Bharat Bhusan and Puneet Gupta (present revisionist) by relying upon the CCTV footage and the affidavits of the employees of their own company. Copy of the conclusion drawn by the aforesaid Circle Officer dated 14.08.2018, is annexed as annexure no. 4 to the affidavit, is self revealing which establishes that under the influence of these affluent and influential persons, who are claimed to be "Bosses" of the company and named as Bharat Bhushan and Puneet Gupta, have been conveniently won over the aforesaid Circle Officer, who after relying upon the above mentioned two documents, submitted the CLOSURE REPORT. Aggrieved by the closure report of the Investigation Officer, the informant filed application 31 Kha, dated 19.02.2018 against both the accused persons, Bharat Bhushan and Puneet Gupta who have been exonerated on the basis of the CCTV and affidavits filed by the employees of the company, who have certified the credentials as well as the characters of the aforesaid accused. 7. As the matter was triable by the Sessions court, it was committed to the court of sessions whereby the testimony of the alleged victim was recorded as P.W.-1 and her examination-in-chief has fully corroborated the allegation of gang rape committed upon her not only against Bharat Bhushan and Puneet Gupta but also against Sonu Tyagi and Vicky and having shot her porn film. She has stated in her examination-in-chief many more things, which would be reiteration of other things and thereafter, the application 31 Kha was allowed by II-Additional Session Judge/Special Judge (SC/ST Act), Meerut vide order dated 08.03.2019 and the same was challenged on the following grounds: (a) case of false implications without any cogent evidence against the revisionist on the basis of which the order impugned was passed; (b) there are three different versions of the alleged victim i.e., statements recorded under sections 161, 164 Cr.P.C. and her testimony as P.W.-1, which are contradictory to each other; (c) the doctor has not given a definite opinion about rape by the victim; (d) the CCTV footage installed in the office of the revisionist establishes his presence at the relevant of time; (e) the evidence whether alleged victim was employed or worked in the firm or office of the revisionist or not; (f) all the affidavits of the employees of Puneet Gupta, who unequivocally certified his character; (g) the victim herself is an antagonist and not only this, the alleged victim and her entire family were earlier also indulged into such type of malpractices (f) the affidavits filed by the co-villagers, annexed as annexure 6 to the petition, reveals that the entire family of the alleged victim has chequered family and they were also in a habit of such type of malpractices in the past. 8. On the aforesaid backdrop, learned counsel for the revisionist has tried to raise his castle of the arguments targeting the order impugned dated 08.03.2019. 9. This Court has carefully perused all the relevant documents. Submissions made by the rival parties in support of the contentions, it is trite that the provisions of section 319 Cr.P.C. are to achieve the objective that a real culprit should not get away unpunished by virtue of the provisions, the trial court is empowered to proceed against any person not shown as an accused, if it appears from evidence that such person has committed any offence for which is ought to be tried together with other accused persons. In the case of Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 , the constitutional bench of Apex Court has lucidly explained the objection and purpose behind the laudable provision of the aforesaid section, which are as follows: (i) Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319. (ii) It is the duty of the Court to do justice by punishing the real culprit. Where any investigating agency for any reason does not array the real culprit as an accused, the court is not powerless in calling the said accused to face trial. The only question left is the satisfaction and degree of satisfaction of the court to exercise its power as contemplated in section 319 Cr.P.C. 10. Indeed, courts are the sole repository of justice and onerous duty is casted upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. 11. In the instant case, the named accused persons namely, Bharat Bhushan and Puneet Gupta (the applicant), undoubtedly are the influential persons, who claimed them as "Bosses' of the establishment M/s RT Motors, having no dearth of money and resources, thus on this background of the case, the possibility to influence the investigation of the case cannot be ruled out. There is bundles of load of direct evidence, which are evident in the text of the FIR itself, victim's statements recorded under sections 161 and 164 Cr.P.C., coupled with the fact, medical treatment of the victim sufficiently indicating the involvement of these accused persons, including the applicant- Puneet Gupta. These vultures of flesh, mercilessly molested a girl of young age, shot her obscene videos for blackmailing and lastly in order to quench their lust, ravished her. But the obedient Investigating Officer of the case moulded the entire case in favour of the applicant and his accomplice. These vultures of flesh, mercilessly molested a girl of young age, shot her obscene videos for blackmailing and lastly in order to quench their lust, ravished her. But the obedient Investigating Officer of the case moulded the entire case in favour of the applicant and his accomplice. The Investigating Officer of the case shockingly relied upon the affidavits of the employees, above whom the applicant ruled over as their Boss, certifying the respective characters of the accused persons and the so-called CCTV footage and eventually dropped the names of the amongst the array of the rest of the accused persons. 12. The power under section 319 Cr.P.C., though extraordinary and has 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/s might have committed the offence, there has to be strong and cogent evidence against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. The attract the provision of section 319 Cr.P.C., it is necessary 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 the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under section 319 Cr.P.C. In Section 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'. 13. On the principles of law laid down in the cases of Brijendra Singh and other v. State of Rajasthan, 2017 SCC 706 ] followed in Labhuji Amratji Thakor and others v. State of Gujarat and another decided on November 13, 2018 in Criminal Appeal No.1349 of 2018 arising out of SLP (CRL.) No.6392/2018, reiterated in the case of Periyasami and Ors. Vs. S. Nallasamy [Criminal Appeal No. 456 of 2019 arising out of S.L.P (Crl.) No. 208 of 2019] decided on 14th March, 2019 and in the case of Sugreev Kumar v. State of Punjab, 2019 LawSuit(SC) 818] decided on 15th March 2019 wherein Hon'ble the Apex Court has categorically held that mere disclosing the name of accused cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 of the Code. 14. Arriving home to the facts and circumstances of the instant case and keeping lien to the aforesaid guidelines laid down in the aforementioned cases, this Court finds that there is categorical and unequivocal allegation of outraging modesty of the informant, as mentioned in the FIR and her corroborating statements given at different stages (though admittedly with minor discrepancies), primarily attributes specific role to all the accused persons, including the revisionist. She has not budged an inch at any of the fora of her statements in the entire prosecution case, this Court is of the considered opinion that learned II-Additional Session Judge/Special Judge (SC/ST Act), Meerut has passed the judgment and order dated 08.03.2019 in absolute consonance with the principles of law and no illegality/irregularity or perversity prevails therein while exercising his powers envisaged under section 319 Cr.P.C. 15. Much emphasis has been laid down by the learned counsel for the revisionist on the evidence of CCTV footage collected by the Investigating Officer during investigation, from the office of the revisionist, who happens to be the Boss of the establishment. 16. At this stage relying upon the evidence of the CCTV footage, without testing its authenticity is hit by section 65-B of the Indian Evidence Act, which speaks about its admissibility of the electronic record. It is highly risky to blindly rely upon the same. There is another aspect of the matter that subordinate employees of the establishment had given "character certificates" through their respective affidavits to the revisionist, which cannot be relied upon, if compared the same with the allegations made in the FIR and various statements given by the informant during investigation coupled with medical report of the doctor, which clearly indicates that the informant (victim) was subjected to mass molestation by all the accused persons, including the revisionist. 17. 17. At the cost of repetition, this Court has no hitch in holding that the learned II-Additional Session Judge/Special Judge (SC/ST Act), Meerut while passing judgment and order dated 08.03.2019 has vividly disclosed, analyzed and critically examined of the aforesaid aspects on the issue and has recorded his satisfaction and he has held therein that there is enough material on record to try the applicant along with other co-accused persons to face trial in S.T. No. 21 of 2018 (State v. Sonu and others), arising out of Crime No. 206 of 2018, under sections 376-D IPC and 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, P.S. Ganganagar, District Meerut. 18. On the aforesaid score, the instant revision falls flat and is, accordingly, rejected. 19. However, if the revisionist has not been bailed out so far in the aforesaid trial and surrenders before the court concerned, applies for bail within a period of 30 days from the delivery of this order, the trial court is directed to given patient hearing to both the rival parties on the application for bail and pass appropriate, speaking and reasoned order in accordance with law, provided there is no other impediment in the case.