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2023 DIGILAW 852 (ALL)

Deependra v. State Of U. P.

2023-03-29

SYED AFTAB HUSAIN RIZVI

body2023
JUDGMENT : 1. Heard learned counsel for the revisionists, learned AGA for the State and learned counsel for opposite party no.2 the first informant. 2. This criminal revision has been filed against the order dated 20.05.2022 passed by Special Judge (Exclusive Court POCSO Act)/Additional Sessions Judge, Etah in S.T. No.736 of 2021 (State vs. Himanshu) U/s 323, 504, 354 Kha, 376/511 IPC & 7/8 POCSO Act, P.S. Mirhachi, District Etah. By the impugned order, the learned court below on an application u/s 319 Cr.P.C. has summoned the revisionist Ravi alias Ravindra and Deependra to face trial with co-accused for offence U/s 323, 504, 354 Kha read with section 34, 376/511 IPC and 7/8 POCSO Act. 3. The FIR of this case was lodged on 20.05.2021 by father of the victim alleging therein that on 17.05.2022 her minor daughter aged about 13 years has gone out to throw garbage at the field. In the maize field, Ravi alias Ravindra, Deependra and Himanshu were lying in ambush and they caught his daughter with intention to commit rape. His daughter put resistance then all the three accused assaulted her causing her injuries. They also put her down and tried to disrobe her. On her cries Ram Avtar (the brother of the complainant) and Veer Pratap his nephew came at the spot. Seeing them all the three accused ran away. After investigation, charge sheet was submitted only against Himanshu. During trial, the complainant and victim were examined as P.W.-1 & P.W.-2 and another witness Ram Avtar as P.W.-3. Thereafter, the prosecution moved an application U/s 319 Cr.P.C. to summon the other named accused of the FIR namely Ravi alias Ravindra and Deependra. The learned trial court by the impugned order, has allowed the application. 4. Learned counsel for the revisionist contended that during investigation, the Investigation Officer has recorded the statements of some independent witnesses who have totally denied the involvement of the revisionist in the alleged incident. Some of the villagers also submitted their affidavits to SSP stating the true facts of the case and these affidavits are also part of the case diary. After concluding the investigation, the Investigating Officer found that the revisionist were not involved in the alleged incident and omitted their names and charge-sheet was submitted only against main accused Himanshu. Some of the villagers also submitted their affidavits to SSP stating the true facts of the case and these affidavits are also part of the case diary. After concluding the investigation, the Investigating Officer found that the revisionist were not involved in the alleged incident and omitted their names and charge-sheet was submitted only against main accused Himanshu. It is also contended that at the time of alleged incident the revisionist were not present at the place of incident. They were present at the house of one Ashok from 6:30 pm to 7:30 pm to attend the last rituals of the father of the Ashok and from where they returned to their respective homes. The involvement of the revisionist was not found in the alleged incident. the learned court below on the basis of statements of complainant P.W.-1 (the victim), P.W.-2 and other witness Ram Avtar (P.W.-3) came to the conclusion that the revisionist were also involved in the alleged incident and has summoned them by the impugned order exercising its power U/s 319 Cr.P.C. While passing the impugned order, the learned court below completely failed to take into consideration that no strong and cogent evidence was present against the revisionist and summoned them in a casual and cavalier manner. The learned court below also completely ignored and overlooked the evidence collected during investigation and has not considered them at all at the time of passing the impugned order. The learned counsel placed reliance on the case laws of Brijendra Singh vs. State of Rajasthan 2017 0 Supreme (SC) 411 and vide order dated 06.07.2022 of this court passed in criminal revision no.415 of 2022 (Sudhir vs. State of U.P. and another). 5. Learned counsel appearing for opposite party no.2 and learned AGA submitted that the revisionist-accused are named in the FIR with specific role assigned to them. The complainant, the victim and the eye witnesses named in the FIR have supported the allegations of the FIR in their statements recorded U/s 161 Cr.P.C. The victim has also supported the allegations of the FIR in her statement recorded U/s 164 Cr.P.C. The Investigating Officer ignoring the aforesaid cogent evidence only on the basis of statement of some so called independent witnesses has exonerated the revisionist in improper manner. The three witnesses examined by the prosecution during trial have again reiterated the prosecution version. The three witnesses examined by the prosecution during trial have again reiterated the prosecution version. So there is sufficient evidence against the revisionist. The learned trial court after considering the evidence and material on record has found that there is sufficient and cogent evidence and has passed the impugned summoning order. There is no illegality in it. 6. It is undisputed that the revisionist accused are named in the FIR. There are specific allegations that they also committed the offence with co-accused Himanshu. Specific role has been assigned to them in the FIR. Ram Avtar and Veer Pratap are named as eye witnesses of the incident. It is also alleged in the FIR that the victim has suffered injuries. The victim has been medically examined and her medico legal report is is part of the record which further corroborates the allegations of the FIR. The victim in her statement recorded U/s 161 Cr.P.C. as well as U/s 164 Cr.P.C. has fully corroborated the allegations of the FIR and has stated about the complicity of the revisionist accused with specific role. The complainant and two witnesses named in the FIR have also supported the allegations of the FIR. The Investigating Officer only on the basis of the statements of some other witnesses regarding presence of accused at somewhere else has exonerated them. It is a case of attempt to rape. the victim has also suffered injuries. Hence, her statement cannot be taken lightly and ignored on the basis of statement of some other witnesses who have deposed that two of the accused (the revisionist) were not present at the place of occurrence. The Apex Court in the case of Hardeep Singh Vs. State of Punjab AIR 2014 Supreme Court page 1400 has prescribed the standard of evidence required for exercising powers under section 319 Cr.P.C. The relevant paras 98 and 99 are as follows: "98. Power under Section 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. Power under Section 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." "99. Thus, we hold that though only a prima face 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 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 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'. There is, therefore, no scope for the Court acting under Section 319, Cr.P.C, to form any opinion as to the guilt of the accused." 7. The test laid down by the Apex Court for invoking powers under section 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person the power should be exercised. The test to be applied is one which is more than prima facie Case, which is applied at the time of framing of charge. The Apex Court in Rajendra Singh versus State of UP A.I.R. 2007 SC 2786 has held that the statement of witnesses to the Investigating Officer under section one 161Cr.P.C. cannot be relied upon in recording finding that accused sought to be tried could not have been present at the scene of occurrence. The Apex Court in Rajendra Singh versus State of UP A.I.R. 2007 SC 2786 has held that the statement of witnesses to the Investigating Officer under section one 161Cr.P.C. cannot be relied upon in recording finding that accused sought to be tried could not have been present at the scene of occurrence. It is further held that it must appear to the court on the evidence that someone not arrayed as accused appears to have committed an offence. The court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. 8. There is cogent evidence in the form of testimony of eye witness and injured witnesses. Applying the test laid down by the Apex Court on the present set of facts, it is clear that there is strong evidence then mere probability of the complicity of the revisionist accused and pass the test as laid down by the Apex Court which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to the extent that the evidence, if got unrebutted would lead to conviction. 9. The trial court in the impugned order has narrated the averments made in the application the prosecution case the evidence lead before it, the provision and proposition of law on the point and has analysed all the facts and evidence on record and has recorded the finding that there is sufficient ground to summon the revisionist for trial. The impugned order is detailed and reasoned one. It is just and proper. It need no interference. This criminal revision is liable to be dismissed. 10. Accordingly, the criminal revision is hereby dismissed.