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Allahabad High Court · body

2019 DIGILAW 2391 (ALL)

Lokesh v. State Of U. P.

2019-10-21

DINESH KUMAR SINGH

body2019
JUDGMENT : Dinesh Kumar Singh, J. Heard Sri Vinay Kumar Pandey, learned counsel for the revisionists, Sri Attrey Dut Mishra, learned A.G.A. appearing for the State and perused the record. 2. The instant criminal revision has been filed against the summoning order dated 17.04.2019 passed by Additional Session Judge, Fast Tract, Court No.1, Mathura in Session trial No.244 of 2017 under section 366, 376 IPC (State vs. Satish @ Satto) arising out of Case Crime No.392 of 2016 under section 376D, 363, 366, 379, 323, 504, 506 IPC, Police Station Farah, District Mathura. 3. Before appreciating the arguments of the learned counsel for the revisionists as well as the learned counsel for opposite parties, it would be appropriate to give the facts of this case in brief, which are as follows: 4. The opposite party no. 2 Mamta lodged an FIR on 15.10.2016 at 10.00 A.M. through an application u/s 156 (3) Cr.P.C. stating therein that one Satish @ Satto was her neighbour who was harassing her. On 24.4.2016 at 5.00 P.M. when husband of opposite party no. 2 had gone to Agra, Satish @ Satto, Lokesh, revisionist no. 1, Manoj, revisionist no.2, Vasu Dev @ Vaso revisionist no. 3 forcibly abducted her at the point of country made pistol. All these accused had also stolen Rs.10,000/- and jewellery which were kept in her house. All these accused had given narcotic substance to her and committed gang rape upon her. When she raised alarm then they fled from there giving threat that they would kill her husband. These accused had also taken few indecent photographs of her and have also obtained her signatures on blank papers. They had told her not to disclose about this to anyone and not to take any action, failing which her indecent photographs would be placed on internet. On 26.8.2016 at 4.00 A.M. they came to the village alongwith opposite party no. 2, then opposite party no. 2 disclosed entire facts to her husband. On the same day her husband Naresh went to the house of Satish @ Satto at about 4.00 p.m., then father of Satish @ Satto namely Mansho Ram, accused-revisionist no. 5, father of Manoj namely Keshav, accused revisionist no. 4 and three unknown persons had badly assaulted the opposite party no.2 by kicks and fists and her hairs were cut by scissor by daughter of Mansho Ram namely Chando, accused-revisionist no. 5, father of Manoj namely Keshav, accused revisionist no. 4 and three unknown persons had badly assaulted the opposite party no.2 by kicks and fists and her hairs were cut by scissor by daughter of Mansho Ram namely Chando, accused-revisionist no. 6. They all had threatened her that she would be made to go around the village with her face blackened. This occurrence was witnessed by Nando, Brijesh and Vishnu. The opposite party no. 2 had gone to lodge report of this occurrence at police station Farah, which was not recorded as the accused revisionist no. 3, Vasu Dev had good relation with the police and thereafter on 7.9.2016 an application was given by her to the S.S.P., Mathura but nothing was done. Thereafter, on this application, subsequent to the order passed by the Court, this FIR was recorded on the above date. 5. After investigation of this case, the police has submitted charge-sheet against the accused Satish @ Satto only under section 376 and 366 IPC while rest of the accused were exonerated. 6. During trial the statement of only one witness i.e. opposite party no. 2 as PW1 has been recorded and thereafter an application 22-Ka was moved by opposite party no. 2 to summon other co-accused under section 319 Cr.P.C. to face trial. The said application has been allowed by the trial court vide impugned order dated 17.04.2019 summoning the accused-revisionist Lokesh, revisionist no.1, Manoj, revisionist no.2, Vasu @ Vasu, revisionist no. 3 to face trial under section 376D, 363, 366 and 379 IPC while other co-accused Keshav revisionist no. 4, Mansho Ram, revisionist no.5 and Km. Chando revisionist no. 6 have been summoned to face trial under sections 323, 504, 506 IPC. 7. The arguments made from the side of the revisionists are that the informant had illicit relationship with co-accused Satish @ Satto with whom she had eloped on 24.4.2016, six days thereafter her husband had lodged an NCR on 01.05.2016 against co-accused Satish @ Satto under section 498 IPC at P.S. Farah, District Mathura wherein he had admitted that the informant of this case had fled with the co-accused Satish @ Satto of her own free will, the said NCR is annexed as Annexure-1. Next it is argued that two months thereafter the informant returned home with Satish @ Satto and was living with her husband, but no complaint was moved by the husband of informant or any of his family members regarding this incident. Thereafter, after four months of the occurrence, informant moved an application under section 156 (3) Cr.P.C before J.M. II, Mathura in respect of this occurrence because her husband and other family members had put pressure upon her to lodge the report against co-accused Satish @ Satto. The informant was medically examined by the doctor but no injuries were seen. The statements of independent witnesses, who are 10 in number, which include the husband of the informant, were recorded. It is stated that no such incident had occurred. It was mentioned that there existed illicit relationship between informant and co-accused Satish @ Satto. These statements are annexed as Annexure-6. Next it is argued that the Investigating Officer after collecting the evidence and examining the statement of informant and her husband as well as independent witnesses, exonerated all the accused persons except the co-accused Satish @ Satto against whom charge-sheet no. 10/17 was filed under section 366 and 376 IPC. The said co-accused has been granted bail vide order dated 29.03.2017. The trial had started and two years thereafter the informant moved the present application on 01.01.2019 for calling the accused-revisionists under section 319 Cr.P.C to face trial which has been erroneously allowed by the trial court. The opposite party no. 2 is a major lady of 40 years of age having five children aged about 13, 12, 10, 6 and 3 years. It is admitted by her in the statement under section 161 and 164 Cr.P.C. that co-accused Satish @ Satto was doing job of manufacturing carpet (Galicha) for about 10-12 years with her husband. Further, it is mentioned in her statement recorded under section 164 Cr.P.C. that the informant admitted illicit relationship with co-accused Satish @ Satto and has admitted that she had gone with the said accused and spent two months time with each other as husband and wife. Further, it is argued that the revisionist nos. 1 and 2 are cousin brothers. Revisionist nos. 3 and 4 are uncle. The revisionist no. 5 is father and revisionist no. Further, it is argued that the revisionist nos. 1 and 2 are cousin brothers. Revisionist nos. 3 and 4 are uncle. The revisionist no. 5 is father and revisionist no. 6 is real sister of co-accused Satish @ Satto, hence they all belong to the family members of co-accused Satish @ Satto. Since the husband of the informant and his family members wanted to settle all criminal cases lodged against them, in order to create pressure upon the revisionists, this false case has been lodged. Further, it is argued that the revisionist no. 6 (sister of co-accused Satish @ Satto) had filed a complaint against the family members of the informant under section 354B, 323, 504, 506, 452 IPC at P.S. Farah District Mathura on 18.9.2016, copy of which is annexed as Annexure-11. Revisionist no. 5(father of the co-accused Satish @ Satto) has filed a complaint against the family members of the informant under sections 147, 148, 149, 354B, 323, 504, 506 and 452 IPC at P.S. Farah, District Mathura, copy of which is annexed as Annexure-12. Further, it is argued that the revisionist no. 5 had already lodged an FIR against the family members of the informant being case crime no. 419 of 2016 under section 307 IPC at P.S. Farah on 17.11.2016, hence the impugned order deserves to be quashed as the same has been passed by the trial court erroneously over looking the fact that the said application was moved by the opposite party no.2 under pressure from her husband and family members in order to put pressure upon the revisionists to compromise the cases which were filed from their side against family members of the opposite party no. 2. Moreover, police has also not found prima-facie case made out against the accused-revisionists and accordingly charge-sheet was not filed against them under abovementioned sections. The independent witnesses including husband of the informant had not supported the prosecution version. These aspects have not been taken into consideration by the trial court while passing the impugned order. 8. No counter affidavit has been filed from the side of the opposite party no. The independent witnesses including husband of the informant had not supported the prosecution version. These aspects have not been taken into consideration by the trial court while passing the impugned order. 8. No counter affidavit has been filed from the side of the opposite party no. 2 as well as from the side of learned A.G.A. although learned A.G.A. has vehemently opposed the prayer for quashing of the charge-sheet and argued that the impugned order does not suffer from any infirmity as in the statement under section 161 and 164 Cr.P.C. as well as in her statement given before the trial court as PW1, the victim/opposite party no. 2 has supported the prosecution version and discrepancies which appear in the version mentioned in FIR as well as her statements at three stages, cannot be seen in proceedings under section 482 Cr.P.C. hence, this revision deserves to be dismissed. 9. I have gone through the statement of the informant recorded under section 161 Cr.P.C. in which she has stated that her husband does work of manufacturing carpet (Galicha). Her neighbourer Satish @ Satto also used to work with her husband. On 24.4.2016 when her husband had gone to bring wool from Agra, at about 5.00 p.m. Satish @ Satto, Lokesh, Manoj and Vasu Dev came to her house and forcibly had taken her away in a car and on way some narcotic substance was given to her by which she fainted. Thereafter, she was taken to Jaipur and was kept at various unknown places and all of them had committed rape upon her. They had also stolen away Rs.10,000/- and jewellery from her house and on 26.8.2016 they had brought her back to her village and then she disclosed all this to her husband Naresh and when thereafter she and Naresh went to the house of Satish @ Satto, co-accused, then Vasu Dev, Mansho Ram and Shimbhu, Lokesh, Manoj, Keshav and Chanddo who were present there, had beaten and abused her, her husband and had threatened that in case they make a complaint about this incident at police station, they would not be allowed to live in village. The statement recorded under section 164 Cr.P.C., which is annexed at page 44 of the paper book, contains the same facts, which have been mentioned in her statement under section 161 Cr.P.C. apart from the fact that in this statement it is also stated that when she and her husband went to the house of Satish @ Satto, they had beaten both of them badly and her hair were also cut. She has five children aged between 3 to 12 years. In her statement given in examination-in-chief it is stated that Satish @ Satto was her neighbour, who used to tease her. On 24.4.2016 at 5.00 p.m. when her husband had gone to Agra, accused-revisionist nos. 1 to 3 along with co-accused Satish @ Satto had abducted her on the point of pistol and had also stolen R.10,000/- as well as jewellery from her house and had taken her in a vehicle. She was given narcotic substance and was kept at some unknown place in Jaipur. All the four accused had gang raped her. When she tried to raise alarm, they have threatened that her husband would be killed. Lokesh and Manoj had made few dirty video with co-accused Satish @ Satto of her and her signatures were also obtained on some blank papers and had threatened that in case she discloses about this occurrence, her dirty video would be placed at internet. She continued to be kept at different places during four months period while she was being raped repeatedly by them and on 26.8.20016 they had brought her back in the village at about 4.00 a.m. and then she narrated the entire episode to her husband. When her husband had taken her to the house of Satish @ Satto where father of Satish @ Satto namely Mansho Ram and father of Manoj namely Keshav and three unknown persons had beaten her and her husband by kicks and fists and the daughter of Mansho Ram namely Chando had cut her hair and had threatened her that her face would be blackened and she would be made to move around the village. This occurrence was witnessed by Nando, Brijesh and Vishnu. 10. In cross-examination, she has proved her statement under section 164 Cr.P.C. as paper no. Ka and her application given under section 156(3) Cr.P.C. as exhibit Ka-1.Further she has submitted that she is an illiterate lady. This occurrence was witnessed by Nando, Brijesh and Vishnu. 10. In cross-examination, she has proved her statement under section 164 Cr.P.C. as paper no. Ka and her application given under section 156(3) Cr.P.C. as exhibit Ka-1.Further she has submitted that she is an illiterate lady. Her marriage was performed 17 years ago and that she used to often visit her parent's house which is located in Agra. In her house the work of manufacturing of carpet is done and her husband had also done the same work. They did not employ any person for the said work. The house of Satish @ Satto was about 10-12 houses away from her house. She did not know who Satish was. Satish had never worked any work of manufacturing of carpet at her place. She had not mentioned in her complaint that Satish @ Satto used to do the work of manufacturing Galicha in her house. The Investigating Officer had interrogated her to whom she had not stated that Satish @ Satto used to do work of manufacturing of Galicha in her house. The occurrence is of 24.4.2016 and thereafter she had stated on her own that she had gone to lodge report on 26.8.2016 and during this four months, she never made any report nor does she know as to whether her husband had lodged any report or not. Further having read out the paper no. 4A/21, She stated that her husband had not lodged the said report at police station and further pointed out that her husband was sitting at the back on chair. On the date of occurrence, she was alone in her house and in front of her house lives Shiv Ganesh Thakur, who has a 'Thela', in his house his mother, daughter-in-law and children reside. On the date of occurrence Shiv Ganesh was not at home. She often visits his house. Co-accused Satish @ Satto used to make frequent visit to her house but her husband would not go to the house of Satish @ Satto nor had he gone in marriage etc. at the house of Satish. On the date of occurrence he did not know Satish @ Satto nor did she know his family members. She was living in the said village Parkham for the last six years, prior to that she was living in Agra. at the house of Satish. On the date of occurrence he did not know Satish @ Satto nor did she know his family members. She was living in the said village Parkham for the last six years, prior to that she was living in Agra. Her daughter aged about 15 years also stated to have studied in class IX at Parkham. She has further stated in cross examination that the Investigating Officer had recorded her statement under threat. The threat was given by Investigating Officer that if she gives any statement against these four accused persons, the same act would be committed with her by him which act was committed by these accused persons with her. She had made complaint orally to the Magistrate about this threat. She does not know the name of the Investigating Officer. First of all the co-accused Satish @ Satto, Manoj, Vasu and Pankaj had taken her to Jaipur in a factory which was deserted where they had kept her for 15 days. There was no house and shop near that factory. All these four accused had lived with her for 2-3 days and thereafter only Satish @ Satto was left behind. There was a Chawkidar in the said factory who was given some money by the accused. The Chawkidar had left the factory on the very first day. In the meantime, no one came in the factory. She had narrated about this fact to the Investigating Officer which has not been recorded by him. About this fact that she was taken to the factory was not mentioned by him in his report but she could not tell its reason. Satish and Manoj are the real brothers. Lokesh is also brother and Vasu is uncle. All these four accused had committed rape upon her. She did not like Satish @ Satto nor any other co-accused. She had suffered internal injury but she was not medically examined for the same. She had told the Investigating Officer about the places where the accused had taken her and fled leaving her behind. She had not told the Investigating Officer that the accused was working in her house for manufacturing the carpet because of which she had developed illicit relationship with him. If the same has been recorded by him, she could not tell its reason. She had not told the Investigating Officer that the accused was working in her house for manufacturing the carpet because of which she had developed illicit relationship with him. If the same has been recorded by him, she could not tell its reason. It is wrong to say that Satish had worked in her house for manufacturing of carpet (Galicha). She had denied that because of enmity, she has lodged this report against the members of the family of the co-accused Satish. 11. After perusal of the statements which have been cited above, I have gone through the impugned order passed by the trial court and find that the trial court has recorded in the impugned judgment that the victim has supported the prosecution version as mentioned in the FIR, in her statement given under section 164 Cr.P.C. and also the same version has been given by her in her statement before the Court against the accused revisionist Lokesh, Manoj, Vasu, therefore, he has summoned them for offence under section 376D, 363, 366 and 379 IPC which are prima-facie made out against them and as regard other co-accused Keshav, Mansho Ram and Km. Chando offence under section 323, 504, 506 IPC are made out. He has also cited principle upon which he has found the prima-facie case made out against the accused-revisionist because he has mentioned that there was no necessity at this stage to make microscopies analysis of the statements of the witnesses and only prima-facie it was to be as to whether the same was made out or not in view of that the court below has exercised its discretion for summoning the accused-revisionists for offence under the abovementioned sections. I see no infirmity in the impugned order. It would be appropriate to mention here the legal principles which have been pronounced by Supreme Court in catena of judgments as to under what circumstances the accused may be summoned under section 319 Cr.P.C. 12. In Dev Wati vs. State of Haryana, (2019) 4 SCC 3219, in this case a missing complaint was lodged by the brother of the deceased and after two days the dead body of the deceased was found. Three accused were put to trial under section 302 read with 34 IPC apart from other offence. When evidence was being recorded, PW9 (brother of the deceased) deposed before the sessions court impleading the appellant. Three accused were put to trial under section 302 read with 34 IPC apart from other offence. When evidence was being recorded, PW9 (brother of the deceased) deposed before the sessions court impleading the appellant. Thereafter, the application filed by PW9 under section 319 Cr.P.C. before the Sessions Court was allowed and the appellants were summoned to face trial, which was upheld by the High Court reiterating that word 'appear' means 'clear to the comprehension' or a phrase near to, if not synonymous with "proved", and imparts a lesser degree of probability then proof. Though only a prima-facie case is to be established from the evidence led before the Court, it requires much stronger evidence than a mere probability of the complicity of the persons against whom the deponent has deposed. The test that has to be applied is of a degree of satisfaction which is more than that a prima-facie case as exercised at the time of framing of charge but short of satisfaction to an extent that evidence, if goes unrebutted, may lead to conviction of the proposed accused. In the absence of such satisfaction, the court should refrain from exercising the power under section 319 Cr.P.C. On considering deposition of PW9, it was held that no valid ground was found to take a different view from that of High Court and the Sessions Court and it was recorded that no interference with the impugned order was warranted. 13. In view of above proportion of law, it is quite evident that for summoning a person as accused under section 319 Cr.P.C. if the court feels satisfied from the evidence which has come on record that there was much stronger evidence which showed not merely probability of complicity of the said person of being involved in commission of offence rather the evidence was found of such level that if the same was left unrebutted, it would result in conviction of the said person as an accused then accused shall be summoned. In the present case, if the said interpretation of the provision of section 319 Cr.P.C. is applied, I find that the victim has consistently given her statements in support of the prosecution case narrated by her in FIR. In the present case, if the said interpretation of the provision of section 319 Cr.P.C. is applied, I find that the victim has consistently given her statements in support of the prosecution case narrated by her in FIR. The case which she established in FIR was corroborated by her in statements under sections 161 and 164 Cr.P.C. with slight variation and also in her statement given before the trial court, in which she has also been cross-examined at length. The defence of the accused-revisionists is that since from the side of the revisionists several cases were filed against the family members of the husband of the opposite party no.2 therefore, under influence / pressure from the side of her husband exerted upon opposite party no. 2, she has lodged this false FIR, this is a subject matter of evidence which would be decided by the trial court. Therefore, at this stage, for this Court it would not proper to express any opinion in this regard in proceedings u/s 482 Cr.P.C. No doubt this Court finds that there are several discrepancies and also it is found that allegation of gang rape is leveled against two brothers and uncle of accused Satish @ Satto which seems unusual that real brothers would indulge in this kind of act together, it appears to be subject matter of evidence. No opinion can be expressed in this regard and as regards accused nos. 4 to 6, they are found to have committed offences under section 323, 504, 506 IPC only which are not serious offences, hence this Court deems it proper to grant them relief to the extent that they may approach the trial court within 30 days and seeks bail. 14. The prayer for quashing the proceedings is refused with regard to revisionist nos. 1 to 3. 15. However, it is provided that if the revisionist nos. 4 to 6 appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the revisionist nos. 4 to 6 be considered and decided in view of the settled law laid-down by this Court in the case of Amrawati and another Vs. State of U.P., (2004) 57 AllLR 290 as well as judgment passed by Hon'ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. 4 to 6 be considered and decided in view of the settled law laid-down by this Court in the case of Amrawati and another Vs. State of U.P., (2004) 57 AllLR 290 as well as judgment passed by Hon'ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. State of U.P., (2009) 3 ADJ 322 (SC) For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the revisionist nos. 4 to 6. However, in case, the revisionist nos. 4 to 6 do not appear before the Court below within the aforesaid period, coercive action shall be taken against them. 16. With aforesaid direction, this revision is finally disposed of.