Yash Tomar vs State Of U.P. And Another on 9 August, 2024

[Cites 46, Cited by 0]

Allahabad High Court

Yash Tomar vs State Of U.P. And Another on 9 August, 2024

Bench: Rajeev Misra





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:129307
 
Reserved on: 28.05.2024
 
Delivered on: 09.08.2024
 

 
Court No. - 77
 
1. Case :- CRIMINAL REVISION No. - 4113 of 2023 
 
Revisionist :- Yash Tomar 
 
Opposite Party :- State of U.P. and Another 
 
Counsel for Revisionist :- Aushim Luthra,Manu Srivastava,Sr. Advocate 
 
Counsel for Opposite Party :- G.A.,Sunil Vashisth
 
Connected with
 
2. Case :- CRIMINAL REVISION No. - 3891 of 2023 
 
Revisionist :- Aditya Chauhan 
 
Opposite Party :- State of U.P. and Another 
 
Counsel for Revisionist :- Birendra Singh Khokher 
 
Counsel for Opposite Party :- G.A.,Sunil Vashisth 
 
Connected with
 
3. Case :- CRIMINAL REVISION No. - 4618 of 2023 
 
Revisionist :- Ishita @ Ishu 
 
Opposite Party :- State of U.P. and Another 
 
Counsel for Revisionist :- Abhishek Kumar,Amit Misra 
 
Counsel for Opposite Party :- G.A.,Sunil Vashisth
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Birendra Singh Khokher, the learned counsel for revisionist-Aditya Chauhan, Mr. Manish Tiwary, the learned Senior Counsel assisted by Mr. Manu Srivastava, the learned counsel for revisionist-Yash Tomar, Mr. Amit Misra, the learned counsel for revisionist-Ishita @ Ishu, the learned A.G.A. for State-opposite party 1 and Mr. Sunil Vashisth, the learned counsel representing opposite party 2.

2. Perused the record.

3. These criminal revisions have been filed challenging the order dated 20.06.2023 passed by Additional District and Sessions Judge, Court No.-1, Ghaziabad in Sessions Trial No. 352 of 2022 (State Vs. Vishnu Tomar @ Aditya), under Sections 366, 376, 328, 506, 342, 504, 120-B IPC, Police Station-Modinagar, District-Ghaziabad, whereby the prospective accused i.e. the revisionists herein namely Aditya Chauhan, Yash Tomar (who is named but not charge sheeted) and Bhangu have been summoned under Sections 366, 376, 506 IPC, whereas, Ishita @ Ishu has been summoned under Sections 366, 120-B, 506 IPC to face trial in aforementioned Sessions Trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 10.09.2021, a prompt F.I.R. dated 10.09.2021 was lodged by first informant, Kulveer Singh (father of the prosecutrix) and was registered as Case Crime No. 0872 of 2021, under Section 366 IPC, Police Station-Modingar, District-Ghaziabad. In the aforesaid F.I.R., 2 persons namely - (1) Vishnu Tomar and (2) Yash Tomar have been nominated as named accused.

5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused are alleged to have enticed away the daughter of first informant namely Divyanshi Chaudhary i.e. the prosecutrix.

6. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. During pendency of investigation, prosecutrix along with named accused Vishnu Tomar approached this Court by filing Criminal Misc. Writ Petition No. 9224 of 2021 (Divyanshi Chaudhary and Another VS. State of U.P. and 3 Others). Aforementioned writ petition was disposed of finally vide order dated 29.10.2021. For ready reference, the same is reproduced herein under:-

"Heard learned counsel for the petitioners, learned AGA as well as Shri Pankaj Kumar Tiwari, learned counsel for the complainant.

Present recall application being Recall Application No.4 of 2021 has been preferred by learned counsel for the complainant to recall the order dated 29.10.2021 passed by this Court, which for ready reference is reproduced hereunder:-

"Heard learned counsel for the petitioners and learned A.G.A.

This writ petition has been filed praying to quash the impugned First Information Report dated 10.09.2021 registered as Case Crime No. 872 of 2021, under Section 366 I.P.C., P.S.- Modi Nagar, District-Ghaziabad.

Both the petitioners are major and have married with each other out of their own free will and as such no offence under Section 366 I.P.C. is made out.

Be that as it may, the writ petition is disposed of with a direction to the petitioner No. 1 to appear before the Chief Judicial Magistrate concerned for recording her statement under Section 164 Cr.P.C., within two weeks from today. In the event the petitioner No. 1 appears before the Chief Judicial Magistrate concerned within the stipulated period, the Chief Judicial Magistrate concerned shall record her statement under Section 164 Cr.P.C. and shall pass appropriate orders in accordance with law.

For a period of five weeks, no coercive action shall be taken against the petitioners."

Learned counsel for the complainant has vehemently contended that the order dated 29.10.2021 has been obtained by concealment of material fact. Even though he had filed caveat but the same was not reported and as such he could not appear at the time of hearing. Once he got the knowledge about the said order, he preferred present recall application. He submits that the second petitioner has criminal antecedents. It is also concealed that the second petitioner is already married and as such no indulgence is required in the matter.

Confronted with this, learned counsel for the petitioners very fairly states that while filing the writ petition he had no knowledge qua the criminal antecedents as well as the alleged second marriage of petitioner no.2. He has no objection, in case the order dated 29.10.2021 is recalled.

We have proceeded to examine the record in question as well as the averments contained in the recall application and find that under the present facts and circumstances, the order dated 29.10.2021 is liable to be recalled. Accordingly, the order dated 29.10.2021 is recalled.

Perusal of the impugned first information report prima facie reveals commission of cognizable offence. Therefore, in view of the law laid down by Hon'ble Supreme Court in the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335; M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918 and the judgment dated 7.10.2021 in Leelavati Devi @ Leelawati & Anr. v. State of U.P., Special Leave to Appeal (Crl.) No(s).3262 of 2021, no case has been made out for interference with the impugned first information report.

Accordingly, the writ petition is dismissed.

Let a copy of this order be provided to Shri G.P. Singh, learned AGA free of cost today for necessary communication in the matter."

7. In compliance of above order dated 29.10.2021, passed by this Court, statement of the prosecutrix was recorded under Section 164 Cr.P.C. on 11.11.2021. In her aforesaid statement, the prosecutrix has not supported the FIR. For ready reference, the same is extracted herein below:-

"बयान अन्तर्गत धारा 164 सीआरपीसी आज पीडिता दिप्यांशी चौधरी मय विद्वान अधिवक्ता श्री चरन सिंह न्यायालय के समक्ष माननीय न्यायालय इलाहाबाद योजित क्रिमिनल मिस० रिट पिटीशन नं0 9224/21 में पारित आदेश दिनांकित 29. 10.21 के अनुपालन में बयान अन्तर्गत धारा 164 सीआरपीसी अंकित करने हेतु उपस्थित हुई। पीडिता द्वारा अपनी शिनाख्त के रूप में अपना आधार कार्ड नं0 293565521207 स्व० प्रमाणित प्रति दाखिल की गई। पीडिता का बयान मु०अ०सं० 872/21 धारा 366 थाना मोदीनगर गाजियाबाद के अभियोग में अंकित किया गया। पीडिता से पूछने पर अपने कथन किया कि वह बिना किसी दबाव के अपनी मर्जी से बयान दे रही है।

पीडिता का नाम दिव्याशी चौधरी पुत्री कुलवीर चौधरी जन्मतिथि 8. (9.2000 पता शिवपुरी गली नं0 2 मोदीनगर जिला गाजियाबाद सशपथ बयान किया कि मै दि० 10.9.21 को समय 11.00 - 11.30 बजे दोपहर अपनी सहेली ईशीता के साथ घर से राय चौपला आ गई। मै बीशू तोमर को एक वर्ष से जानती हूं और हम दोनों एक दूसरे से प्यार करते है, और शादी करना चाहते थे परन्तु मेरे माता पिता शादी के खिलाफ थे इसलिये मैं अपनी मर्जी से दि० 10.9.21 को बीशू उर्फ आदित्य तोमर के साथ राय चौपला से बुलन्दशहर चले गये। भै और वीशू उर्फ आदित्य बुलन्दशहर से इलाहाबाद चले गये और वहां कोर्ट मैरिज कर ली। उसके बाद मै व वीशू पति पत्नी की तरह रहने लगे। मेरा साथ बीशू ने कोइ जोर जबरदस्ती नही की। ना ही मुझे बीशू बहला फुसलाकर ले गया। मुझे यश तोमर ने भी कभी धमकाया नही, न ही बहला फुसलाकर लेकर गया। मुझे मेरे माता पिता व तीन मामा व ताउजी व ताउजी के लडके व रवि सिरोही व आयुष राणा व आयुष राणा के परिवार आदि से जान का खतरा है। इनमें से कुछ आज अदालत में भी मौजूद है।

सुनकर तस्दीक किया।"

8. Against above order dated 29.10.2021 passed by this Court, first informant Kuldeep Singh filed a recall application seeking recall of order dated 29.10.2021 on the ground that though a caveat was lodged by first informant through his counsel, but the same was not reported, as such, counsel for the caveator/first informant could neither have any knowledge of the writ petition nor he was able to appear before the Court to oppose the writ petition on 29.10.2021. As such, the order dated 29.10.2021 is liable to be recalled. Aforementioned application came to be registered as Application No. 4 of 2021. After hearing counsel for the parties, Court ultimately, dismissed aforementioned writ petition, vide order dated 11.11.2021. For ready reference, the same is extracted herein under:-

"Heard learned counsel for the petitioners, learned AGA as well as Shri Pankaj Kumar Tiwari, learned counsel for the complainant.

Present recall application being Recall Application No.4 of 2021 has been preferred by learned counsel for the complainant to recall the order dated 29.10.2021 passed by this Court, which for ready reference is reproduced hereunder:-

"Heard learned counsel for the petitioners and learned A.G.A.

This writ petition has been filed praying to quash the impugned First Information Report dated 10.09.2021 registered as Case Crime No. 872 of 2021, under Section 366 I.P.C., P.S.- Modi Nagar, District-Ghaziabad.

Both the petitioners are major and have married with each other out of their own free will and as such no offence under Section 366 I.P.C. is made out.

Be that as it may, the writ petition is disposed of with a direction to the petitioner No. 1 to appear before the Chief Judicial Magistrate concerned for recording her statement under Section 164 Cr.P.C., within two weeks from today. In the event the petitioner No. 1 appears before the Chief Judicial Magistrate concerned within the stipulated period, the Chief Judicial Magistrate concerned shall record her statement under Section 164 Cr.P.C. and shall pass appropriate orders in accordance with law.

For a period of five weeks, no coercive action shall be taken against the petitioners."

Accordingly, the writ petition is dismissed.

Let a copy of this order be provided to Shri G.P. Singh, learned AGA free of cost today for necessary communication in the matter."

9. After above-mentioned order dated 11.11.2021 was passed by this Court, prosecutrix was recovered by the police on 01.02.2022. Subsequent to above, statement of the prosecutrix was recorded under Section 161 Cr.P.C. on 01.02.2022. Same is on record as Annexure-5 to the affidavit filed in support of Criminal Revision No. 4113 of 2023 (Yash Tomar Vs. State of U.P. and Another). The prosecutrix in her aforesaid statement has departed from her previous statement under Section 164 Cr.P.C. and has now supported the FIR. Specific allegations have been made against named accused Vishnu Tomar. The name of revisionist Ishita @ Ishu has also emerged in the aforesaid statement and an element of conspiracy has been levelled against her.

10. Thereafter, the prosecutrix was requested for her internal medical examination. However, the prosecutrix in her statement before the Doctor, who medically examined her, has again supported the FIR. The Doctor, who conducted internal medical examination of the prosecutrix, however, did not find any external injury on her person so as to denote commission of forceful or deliberate sexual assault. With regard to private part of the prosecutrix, the Doctor has opined as follows:-

"Hymen Perineum - No Injury ......... Old Healed Torned."

11. Certain samples were also taken from the body of prosecutrix for pathological examination. However, supplementary medico legal report of the prosecutrix has not been brought on record.

12. Ultimately, statement of the prosecutrix was recorded under Section 164 Cr.P.C. on 08.02.2022, wherein the prosecutrix has departed from her previous statement also recorded under Section 164 Cr.P.C. The prosecutrix has now rejoined her previous statement under Section 161 Cr.P.C. and has fully supported the FIR. She has deposed mainly against named accused Vishnu Tomar. The name of revisionist Ishita @ Ishu emerged in the aforementioned statement, who is alleged to have introduced the prosecutrix to Aditya Tomar @ Vishu Tomar.

13. On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that complicity of only one of the named accused namely Vishnu Tomar is established in the crime in question. He, accordingly, submitted the police report dated 01.02.2022 in terms of Section 173(2) Cr.P.C., whereby named accused Vishnu Tomar has been charge sheeted under Sections 366, 376, 328, 506, 342, 504, 120-B IPC.

14. Upon submission of aforementioned police report (charge sheet), cognizance was taken upon same by concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. However, as offence complained of is traible exclusively by the Court of Sessions, therefore, concerned Magistrate, in compliance of Section 209 Cr.P.C., committed the case to Court of Sessions. Resultantly, Sessions Trial No. 352 of 2022 (State Vs. Vishnu Tomar @ Aditya) under Sections 366, 376, 328, 506, 342, 504, 120-B IPC, Police Station-Modinagar, District-Ghaziabad came to be registered and is now said to be pending in the Court of Additional District and Sessions Judge, Court No.-1, Ghaziabad.

15. The concerned Sessions Judge proceeded with the trial. Accordingly, as per mandate of Section 211 Cr.P.C., he framed charges against charge sheeted accused, who denied the same and demanded trial. Resultantly, trial procedure commenced.

16. Prosecution, in discharge of it's burden to bring home the charges so framed against charge sheeted accused Vishnu Tomar @ Aditya, adduced the following witnesses namely PW-1 Kulveer Singh (first informant/father of the prosecutrix), PW-2 Divyanshi Chaudhary (the prosecutrix) and PW-3 Dr. Soniya Chaudhary (the Doctor, who had conducted internal medical examination of the prosecutrix) up to this stage.

17. After the statement-in-chief/examination-in-chief of aforementioned prosecution witnesses was recorded, prosecution/first informant filed an application dated 17.11.2022, under Section 319 Cr.P.C. praying therein that since complicity of named accused Yash Tomar and not named accused Aditya Tomar, Bhangu and Ishita @ Ishu has also emerged in the crime in question as per depositions of PW-1 and PW-2, therefore, they be also summoned to face trial in aforementioned Sessions Trial. This application came to be registered as Paper No. 24-Kha.

18. Court below upon examination of the pleadings raised in aforementioned application under Section 319 Cr.P.C. and evaluation of same in the light of depositions of PW-1 and PW-2 came to the conclusion that the prospective accused are liable to be summoned to face trial in aforementioned Sessions Trial. Accordingly, Court below, vide order dated 20.06.2023 allowed the application under Section 319 Cr.P.c. filed by the prosecution/first informant. Consequently, the prospective accused namely Aditya Chauhan, Yash Tomar (who is named but not charge sheeted) and Bhangu have been summoned under Sections 366, 376, 506 IPC, whereas Ishita @ Ishu has been summoned under Sections 366, 120-B, 506 IPC, to face trial in aforementioned Sessions Trial.

19. Perusal of the order impugned will go to show that Court below has summoned the prospective accused i.e. the revisionists on the finding that since something more than mere complicity of the prospective accused has emerged in the crime in question as per depositions of PW-1 Kulveer Singh (first informant/father of the prosecutrix) and PW-2 (the prosecutrix), therefore, they are liable to be summoned to face trial.

20. Thus, feeling aggrieved by aforesaid order passed by Court below, revisionists have now approached this Court by means of present criminal revisions.

21. Criminal Revision No. 4113 of 2023 (Yash Tomar Vs. State of U.P. and Another) came up for admission on 08.08.2023 and this Court passed the following order:-

"1. Heard learned counsel for the revisionist and learned A.G.A. for the State.

2. This criminal revision has been filed for setting aside the impugned order of summoning dated 20.06.2023 passed by learned Additional District & Sessions Judge, Court No.01, Ghaziabad, in S.T. No. 352 of 2022 (State of U.P. Vs. Vishu Tomar @ Aditya), arising out of Case Crime No. 872 of 2021, under Sections 366, 376, 328 & 506 I.P.C., Police Station Modinagar, District Ghaziabad, pending in the Court of learned Additional District & Sessions Judge, Court No.01, Ghaziabad.

3. Case of the revisionist An F.I.R. being case crime No. 872 of 2021 has been lodged/registered on 10.09.2021 against the principal accused Vishu Tomar, revisionist Yash and Ishu for the incident, which is alleged to have taken place on the same day i.e. 10.09.2021. In the F.I.R. it has been alleged that the daughter of the first informant went out with her friend Ishu i.e. of the co-accused on 10.09.2021 at about 13:00 hours and on the way she was beguiled and abducted by the named co-accused persons Vishu Tomar and Yash i.e. revisionist.

4. Further it is the case of the revisionist that after lodging of the aforesaid F.I.R. by the informant, the prosecutrix/victim along with the co-accused Vishu Tomar approached this Court by means of Criminal Writ Petition No. 9224 of 2021 for seeking protection from this Court pursuant to the F.I.R. dated 10.09.2021. In the writ petition it is alleged by the prosecutrix and co-accused Vishu that they being major had entered into a consensual relationship and had even married and sought quashing of the F.I.R. On 11.11.2021 in compliance of the order of Writ Court dated 29.10.2021, statement of the prosecutrix was recorded under Section 164 Cr.P.C. before the C.J.M., Ghaziabad in which she has stated that she had entered into a consensual relationship with the co-accused Vishu Tomar and has also stated that the revisionist was not involved in her abduction.

Further it is the case of the revisionist that a recall application was filed by the complainant before this Court in Criminal Writ Petition No. 9224 of 2021 against the protection order dated 29.10.2021 on the ground that the accused Vishu had already been married way back and the said fact had been concealed by the co-accused in the said writ petition. The recall was allowed and the investigation of the present case continued and the statement of prosecutrix was recorded under section 161 Cr.P.C. on 01.02.2022. In the said statement role of abduction as well as allegation of rape have been assigned upon the co-accused Vishu Tomar by the prosecutrix.

5. It is further contended on behalf of the revisionist that in the statement recorded under Section 161 Cr.P.C., the prosecutrix has stated that she stayed with the co-accused Vishu Tomar for a period of 5 months and she never raised any alarm for her help, which will also go to show that she had been in a consensual relationship with the co-accused. It is further submitted that after recording of the statements of the witnesses including the victim/prosecutrix and completion of statutory investigation under Chapter XII Cr.P.C., a final report dated 28.03.2022 was filed under Section 173 Cr.P.C. against the co-accused Vishu Tomar @ Aditya Tomar before the Court below wherein the involvement of revisionist has been denied and he has been exonerated by the Investigating Officer. On submission of the final report, the cognizance was taken thereon and the charges were framed only against the co-accused Vishu Tomar @ Aditya. No protest was filed against the exoneration of the applicant/ revisionist. Thereafter, the statements of first informant and the prosecutrix were recorded by the trial court as P.W.-1 and P.W.-2 respectively.

6. It is contended on behalf of the revisionist that neither in the statement under Section 161 nor in the statement recorded under Section 164 Cr.P.C., any role of abduction or rape has been assigned upon the revisionist, who is only friend of co-accused Vishu Tomar upon whom role of abduction and the rape upon the prosecutrix/victim has been assigned. It is for the first time before the court below during the course of trial that the prosecutrix has made allegation of abduction upon the revisionist. Such development in the statements of the victim/prosecutrix creates dent in the entire prosecution version qua the involvement of the revisionist in the present criminal case in any manner.

7. Learned counsel for the revisionist further submitted that a medico legal examination dated 01.02.2022 of the prosecutrix reveals that there were no signs of external injury found upon her and that the prosecutrix was not being subjected to any forceful sexual intercourse. It is lastly submitted that the learned court below vide order dated 20.06.2023 has allowed the application of the first informant and has summoned the revisionist to face trial.

8. On the cumulative strength of the aforesaid, learned counsel for the revisionist submits that the summoning order issued against the revisionist is not only malicious but also amount to an abuse of the process of the Court. As such the same is liable to be quashed by this Court.

9. In view of the above, matter requires consideration.

10. Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A.

11. Issue notice to opposite party no. 2, returnable at an early date.

12. Opposite parties may file their respective counter affidavits within four weeks. Rejoinder affidavit may be filed within two weeks thereafter.

13. List this case on 21.09.2023.

14. Till the next date of listing, no coercive action shall be taken against the revisionist in the aforesaid case."

22. Criminal Revision No. 3891 of 2023 (Aditya Chauhan Vs. State of U.P. and Another) came up for admission on 22.08.2023 and this Court passed the following order:-

"Heard learned counsel for the revisionist, Sri Sunil Vashisth, learned counsel for opposite party no.2 and learned A.G.A. for the State.

The present criminal revision has been filed by the revisionist to set aside the judgment and order dated 20.06.2023 passed by learned Additional District & Sessions Judge, Court No.1, Ghaziabad in S.T. No. 352 of 2022 (State Vs. Bishu Tomar @ Aditya Tomar), arising out of Case Crime No. 872 of 2021, under Sections 366, 376, 328 & 506 I.P.C., Police Station Modinagar, District Ghaziabad.

Learned counsel for the revisionist submits that in Criminal REvisin No. 4113 of 2023, (Yash Tomar Vs. State of U.P. and another), this Bench has granted interim protection to the co-accused vide order dated 08.08.2023. Since the case of the present revisionist is more or less identical to that of the co-accused, he is also liable to be granted similar interim protection.

Matter requires consideration.

Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A.

Issue notice to opposite party no.2 returnable at an early date.

Opposite parties may file their counter affidavits within three weeks. Rejoinder affidavit, if any, may be filed within one week thereafter.

Connect along with records of Criminal Revision No. 4113 of 2023 and list as fresh on 21.09.2023.

Till the next date of listing, no coercive action shall be taken against the revisionist in the aforesaid case."

23. Criminal Revision No. 4618 of 2023 (Ishita @ Ishu Vs. State of U.P. and Another) came up for admission on 21.09.2023 and this Court passed the following order:-

"Heard Mr. Amit Mishra, learned counsel for the revisionist, learned A.G.A. for the State and Mr. Sunil Vashishtha, Advocate who has put in appearance on behalf of opposite party no.2 by filing his vakalatnama along with counter affidavit which is taken on record.

The present criminal revision has been filed by the revisionist to set aside the judgment and order dated 20.06.2023 passed by learned Additional District & Sessions Judge, Court No.1, Ghaziabad in S.T. No. 352 of 2022 (State Vs. Bishu Tomar @ Aditya Tomar), under Sections 366, 120-B and 506 I.P.C. arising out of Case Crime No. 872 of 2021, under Sections 366, 376, 328 & 506 I.P.C., Police Station Modinagar, District Ghaziabad whereby the revisionist has been summoned under Section 319 Cr.P.C. to face trial under Section under Sections 366, 120-B and 506 I.P.C. .

Learned counsel for the revisionist submits that being the friend of the victim, the revisionist has been summoned under Section 319 Cr.P.C. along other co-accused. The only role assigned to the revisionist is that she had introduced the victim to the main accused Yash Tomar on Instagram. He further submits that in Criminal Revision No. 4113 of 2023, (Yash Tomar Vs. State of U.P. and another) and as also in Criminal Revision No. 3891 of 2023 (Aditya Chauhan Vs. State of U.P. & Another), this Bench has granted interim protections to the co-accused, namely, Yash Tomar and Aditya Chauhan vide orders dated 08.08.2023 and 22.08.2023 respectively. Since the case of the present revisionist is on better footing to that of the aforesaid co-accused, she is also liable to be granted similar interim protection.

Matter requires consideration.

Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A.

Learned A.G.A. for the State and Mr. Sunil Vashishtha, learned counsel for opposite party no.2 are granted two weeks' time to file their respective counter affidavits. Rejoinder affidavit, if any, may be filed within a week thereafter.

Connect along with records of Criminal Revision No. 4113 of 2023, (Yash Tomar Vs. State of U.P. and another) and Criminal Revision No. 3891 of 2023 (Aditya Chauhan Vs. State of U.P. & Another) and list as fresh on 31.10.2023.

Till the next date of listing, no coercive action shall be taken against the revisionist in the aforesaid case."

24. As per record of Criminal Revision No. 4113 of 2023 (Yash Tomar Vs. State of U.P. and Another), a counter affidavit has been filed by State-opposite party-1 to which, a rejoinder affidavit has also been filed. However, no counter affidavit has been filed by the first informant/opposite party-2. Similarly, in Criminal Revision No. 3891 of 2023 (Aditya Chauhan Vs. State of U.P. and Another), a counter affidavit has been filed by State-opposite party-1 to which, a rejoinder affidavit has also been filed. However, no counter affidavit has been filed by the first informant/opposite party-2. In Criminal Revision No. 4618 of 2023 (Ishita @ Ishu Vs. State of U.P. and Another), a counter affidavit has been filed by State-opposite party-1 to which, a rejoinder affidavit has also been filed. However, no counter affidavit has been filed by the first informant/opposite party-2.

25. Counsel for the parties agreed that the mater be heard and disposed of finally at this stage without calling for the record. Accordingly, in view of the consent of counsel for the parties and as provided under Rules of the Court, present criminal revisions are being disposed of finally at the admission stage, without calling for the record.

26. Mr. Manish Tiwary, the learned Senior Counsel assisted by Mr. Aushim Luthra along with Mr. Manu Srivastava, the learned counsel for revisionist-Yash Tomar submits that order impugned in present criminal revision is manifestly illegal and therefore, liable to be set aside by this Court. It is then contended that admittedly, revisionist Yash Tomar has been nominated as a named accused in the FIR. However, during course of investigation, no such material was gathered by the Investigating Officer on the basis of which, the complicity of present revisionists in the crime in question could even be inferred. Accordingly, Investigating Officer exculpated the revisionist-Yash Tomar in the police report dated 08.02.2022 submitted in terms of Section 173(2) Cr.P.C.

27. Learned Senior Counsel has then taken the Court to the statement of the prosecutrix dated 11.11.2021 recorded under Section 164 Cr.P.C. in compliance of the order dated 29.10.2021 passed by this Court. With reference to above, he submits that the prosecutrix in her aforesaid statement has not implicated the revisionist Yash Tomar in the crime in question.

28. Attention of the Court was then invited to the statement of the prosecutrix recorded under Section 161 Cr.P.C. which is dated 01.02.2022. According to the learned Senior Counsel, the prosecutrix in her aforesaid statement has resiled from her previous statement recorded under Section 164 Cr.P.C. and has now supported the FIR but again she has not implicated the revisionist-Yash Tomar in the crime in question. All the allegations in aforesaid statement are pointed against named and charge sheeted accused Vishnu Tomar.

29. Learned Senior Counsel has then referred to the subsequent statement of the prosecutrix dated 08.02.2022, recorded under Section 164 Cr.P.C. With reference to above, he submits that the prosecutrix in her aforesaid statement has come out with a fanciful story, which is totally different to the narration of events occurring in her previous statements. The prosecutrix, in her aforesaid statement, has stated about the involvement of other persons also but she has not mentioned the names of any of the prospective accused in the crime in question. As such the prosecutrix, in her aforesaid statement, has not stated anything adverse against the revisionist Yash Tomar. As a matter of fact, the aforesaid statement of prosecutrix details the conduct of named and charge sheeted accused Vishnu Tomar alone.

30. The prosecutrix in her deposition before Court below as PW-2 has for the first time come out with a new case alleging complicity of the revisionist Yash Tomar in the crime in question. The name of revisionist Yash Tomar has emerged for the first time in the deposition of prosecutrix before Court below. Drawing a parallel in between the first statement of the prosecutrix under Section 164 Cr.P.C., her statement under Section 161 Cr.P.C., her statement before the Doctor, who medically examined her, her subsequent statement under Section 164 Cr.P.C., on the one hand and her deposition before Court below as PW-2 on the other hand, he submits that the prosecutrix has come out with an altogether new story in her deposition before Court below, which is alien to her previous statements as noted above. The departure so made in her depositions before Court below from her previous statements as refered to above, remains unexplained up to this stage. No disclosure has been made by the prosecutrix in her deposition before Court below as to how, she came to know about the name of revisionist Yash Tomar and why more allegation was levelled against this accused in her previous statement. The prosecutrix is major as she is aged about 21 years. Court below has summoned the revisionist Yash Tomar under Sections 366, 376 and 506 IPC. However, even as per the deposition of the prosecutrix before Court below, no offence under Sections 366, 376 and 506 IPC can be said to be made out against revisionist Yash Tomar. A bald statement has emerged in the deposition of prosecutrix before Court below that her modesty was dislodged by revisionist Yash Tomar also. However, the said statement is conspicuous by its absence in her previous statements referred to above. The prosecutrix has, thus, not been consistent qua the complicity of revisionsit Yash Tomar in the crime in question. As such, deposition of the prosecutrix before Court below insofar as it relates to revisionist Yash Tomar suffers from the vice of exaggeration, embellishment and contradiction, which renders the prosecutrix unworthy of credit and her deposition qua the revisionist Yash Tomar unworthy of reliance. As per the previous statements of the prosecutrix, even an inference cannot be drawn against the present revisionist for having committed an offence under Sections 366, 376 and 506 IPC. The revisionist has been falsely implicated on account of his affinity with charge sheeted accused. He, therefore, contends that Court below while passing the order impugned has failed to consider the aforesaid aspects of the matter, which has vitiated the order impugned. On the above conspectus, the learned Senior Counsel has argued that when the material on record is considered as a whole, no inference regarding the complicity of accused Yash Tomar in the crime in question can be inferred. Once even the complicity of revisionist Yash Tomar has not emerged in the crime in question, there cannot be any strong and cogent evidence against the revisionist Yash Tomar. Consequently, no inference regarding the guilt of accused Yash Tomar can be drawn.

31. Mr. Birendra Singh Khokher, the learned counsel for revisionist-Aditya Chauhan has filed written arguments, the same is extracted herein under with minor corrections:-

(1). That Criminal Revision is being preferred and filed by the revisionist Aditya Chauhan against the Judgement and order dated 20.06.2023 passed in S.T. No.352 of 2022, arising out of Case crime No.872 of 2021, u/s 366,376,506 I.P.C. (State Vs. Bishu Tomar@Aditya Tomar), P.S.- Modinagar, District- Ghaziabad, passed by the Learned Additional District and Sessions Judge, Court No.1, Ghaziabad illegaly allowing application No.24 KHA u/s 319 C.r.P.C., and summoning the revisionist without assigning any reason as against revisionist.

(2). That the complainant Kulveer Singh lodged an F.I.R. against Bishu Tomar @ Aditya Tomar and Yash Tomar on 10.09.2021. The revisionist Aditya Chauhan is not named in the F.I.R. There is no allegation as against revisionist Aditya Chauhan in the body of FIR. Thereafter, Investigating oOfficer recorded the statement of first informant Kulveer u/s 161 C.r.P.C. on 11.09.2021 and Majeed statement, on 31.01.2022, but he has not stated anything against the revisionist Bishnu Tomar @ Aditya Chauhan. That the Hon'ble Court may kindly peruse page no.40 and 43 of the paper book.

(3). That it is relevant to mention here that the victim was recovered by the police on 01.02.2022 and her statement was recorded u/s 161 Cr.P.C. by the Investigating Officer on 01.02.2022, but she has not stated anything as against the revisionist in her statement u/s 161 Cr.P.C. Thereafter, two Majeed statements of the victim were also recorded by the Investigating Officer on 30.05.2022 and 05.06.2022 respectively but she has not stated anything as against the revisionist, in her Majeed statements not even the name of the revisionist is disclosed. Victim is major, as her date of birth is 08.09.2000. She herself admitted this fact. The Hon'ble court may kindly peruse the page Nos. 46, 47, 52 and 54 of the paper book.

(4). That it is relevant to mention here that after the recovery of victim on 01.02.2022, her statement u/s 164 Cr.P.C. was recorded on 11.11.2021 before Learned C.J.M. Ghaziabad, in which she has not stated anything against the revisionist. Thereafter, second statement of victim was recorded on 08.02.2022, u/s 164 Cr.P.C. before Additional Civil Judge (J.D.), Ghaziabad, but again she has not stated anything against the revisionist Aditya Chauhan. Hon'ble court may kindly peruse page Nos. 79 and 84 of the paper book.

(5). That it is relevant to mention here that during trial, examination-in-chief and cross examination of the first informant was recorded on 24.08.2022 and 13.10.2022 as P.W-1. However, he has not stated anything against the revisionist in his examination-in-chief and cross examination. Not even the name of the revisionist Aditya Chauhan has been disclosed in his deposition before the Trial Court. Hon'ble Court may kindly peruse page nos. 107 and 108, Paragraph no. 2, 8th line, in which, the first informant has stated that "My daughter has told me that Bishu Tomar beat me in drunken state and committed rape, threatened to kill, this is my statement". However contrary to it, girl, after recovery, lived with his father for 7 months, but her father had not told the name of the revisionist.

(6). That the examination in chief and cross examination of victim was recorded as P.W.-2 on 21.10.2022 but she also has not stated anything against the revisionist except the version that revisionist was sitting on the back of motorcycle of Bishu Tomar@ Aditya Tomar. There is no specific evidence of any witness as against revisionist. Hon'ble Court may kindly peruse the page no. 121 of the paper book.

(7). That no identification parade of the revisionist was got conduced by the prosecution.

(8). That the revisionist is sure that if he faces the trial, he shall surely be acquitted as only superficial evidence and not strong and cogent evidence has emerged against revisionist.

32. Mr. Amit Misra, the learned counsel for revisionist-Ishita @ Ishu has also filed written arguments, which for ready reference is extracted herein under:-

(1). That present Criminal Revision has been filed against the order dated 20.06.2023 passed by Additional District & Sessions Judge, Court No. 1, Ghaziabad (State vs. Vishu Tomar @ Aditya) U/s. 366, 120B and 506 I.P.C., Sessions Trial No. 352/2022, Case Crime No. 872/2021, P.S. Modinagar, District Ghaziabad summoning the revisionist u/s 319 Cr.P.C.

(2). That present case arises out of First Information Report lodged by Kulvir Singh (O.P.no.2/Father of prosecutrix Divyanshi) at Case Crime No. 872 of 2021, P.S. Modinagar, Ghaziabad u/s 366 I.P.C. Revisionist was not named as an accused in the FIR and only two persons namely Vishu Tomar and Yash were arrayed as accused.

(3). That first statement of prosecutrix was recorded under section 164 Cr.P.C. before the C.J.M. Ghaziabad on 11.11.2021, in compliance of the order of Hon'ble High Court dated 29.10.2021. In the said statement, the prosecutrix stated that she came to village Chaupla with her friend (revisionist) and that she had entered into a consensual relationship with the co- accused Vishu Tomar and after preforming marriage they were living as husband and wife. No allegation of any kind was made against revisionist.

(4). That thereafter the statement of prosecutrix was recorded under section 161 Cr.P.C. in the course of investigation, on 01.02.2022 in which role of abduction was assigned to co-accused Vishu Tomar only. It is on him that role of committing rape has been assigned. Revisionist is said to have merely accompanied her.

(5). That second statement under section 164 Cr.P.C. of the prosecutrix was recorded on 8.2.2022 before the Addl. Civil Judge (J.D.)/J.M., Ghaziabad in which she stated about threat to her life from the family members of Aditya Tomar @ Vishu Tomar.

(6). That regarding the revisionist it was stated that prosecutrix was got connected on Instagram with Aditya Tomar @ Vishu Tomar by revisionist. This itself is a wholly baseless allegation as friendship on social media applications can only be mutual and cannot be managed or forced by other persons. No allegation of any offence was made against revisionist.

(7). That chargesheet dated 28.03.2022 was filed under section 173 Cr.P.C. against Vishu Tomar @ Aditya Tomar only in the Court of A.C.J.M. 05, Ghaziabad, wherein the involvement of revisionist was not found and she was exonerated by the Investigating Officer.

(8). That cognizance upon the matter was taken and charges were framed only against the co-accused Vishu Tomar @ Aditya Tomar. No protest petition was filed against the Final Report exonerating the revisionist.

(9). That during trial, the statement of the first informant was recorded before learned trial court as PW-1. Statement of prosecutrix was recorded as PW-2 and statement of Doctor Sonia Chaudhary was recorded as PW-3. Thereafter, the prosecution moved an application to summon the revisionist and other persons u/s 319 Cr.P.C.

(10). That the learned Trial Court passed the impugned summoning order dated 20.06.2023 under Section 319 of Cr.P.C., wherein revisionist has been arbitrarily summoned.

(11). That from the perusal of record, it is apparent that prosecutrix Divyanshi was a grown up mature woman of 21 years of age at the alleged time of occurrence and as such fully capable of understanding the circumstances around her.

(12). That Section 366 IPC states "Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;

And whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."

(13). That for proving the offence under section 366 IPC, it has to be proved that accused abducted prosecutrix against her will with the intention to marry her against her will or in order that she may be forced to illicit intercourse. An offence under Section 366 IPC would be attracted only when there is a forceful compulsion of marriage, by kidnapping or by inducing a woman. From the prosecution evidence as discussed above, it appears that the prosecutrix went with the co-accused Vishu Tomar @ Aditya Tomar on her own will and she was a consenting party.

(14). That the prosecutrix is an unreliable witness and no credence can be given to her words. She is a fully grown up girl and she was in the age of discretion, sensible and being fully aware of the circumstances that she went with co-accused Vishu Tomar @ Aditya Tomar on her own will, and as such no offence under section 366 IPC is made out against the revisionist.

(15). That the impugned summoning order is liable to be quashed in view of the Supreme Court's judgment in Kavita Chandrakant Lakhani vs. State of Maharashtra & Anr reported in AIR 2018 SC 2099, wherein it was held that to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.

(16). That Section 120B IPC states "whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence"

(17). That in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, revisionist cannot be held guilty for offence under Section 120-B of IPC.

(18). That in the present case, there is no evidence proving the acts, statements and circumstances, that the accused were in prior consent to commit the alleged offence. From the prosecution version it cannot be stated that the revisionist was associated with other accused.

(19). That learned Court below has not considered the plethora of evidence collected by the Investigating Officer during the course of investigation as the said material is a relevant material before summoning a prospective accused on the basis of the deposition of prosecution witness, the Court must draw a parallel in between the statement of such witness recorded under Section 161 Cr. P. C. and his deposition before Court below to find out whether something new has emerged in the deposition of the prosecution witnesses than what was stated by them in their statements under Section 161 Cr.P.C.

(20). The prospective accused cannot be summoned merely on the basis of his complicity in the crime in question but only if an inference of guilt of prospective accused can be gathered from the evidence up to that stage. The power under Section 319 Cr. P. C. is an extraordinary power and should be exercised sparingly and not in a routine manner, (21). That in the present case, no offence under Sections 366/506 IPC I.P.C. is made out nor does question of any offence having been committed with the aid of Section 120B I.P.C. arise in the present case.

(22). That the learned trial Court has not exercised jurisdiction diligently but rather in a casual manner. It is only when strong and cogent evidence has emerged against a prospective accused, which is much more than mere complicity of a prospective accused in the crime in question can be be summoned under Section 319 Cr.P.C."

33. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Sunil Vashisth, the learned counsel representing first informant-opposite party-2 have vehemently opposed the present criminal revisions. Learned A.G.A. contends that the order impugned in present criminal revision is perfectly just and legal and is, therefore, not liable to be interfered with by this Court. Court below has summoned the prospective accused i.e. the revisionists after considering the material on record. From perusal of order impugned, it cannot be said that Court below has not acted judiciously in passing the order impugned. Admittedly, the prosecutrix, who is the victim, in her deposition before Court below has clearly implicated the prospective accused i.e. the revisionists herein in the crime in question. No pleadings has been raised by revisionist regarding malicious prosecution. No mala-fide has been alleged as the prosecutrix either. As such, no illegality has been committed by Court below in summoning the prospective accused i.e. the present revisionists to face trial in aforementioned Sessions Trial. Learned A.G.A. thus contends that Court below while passing the order impugned, has neither committed a jurisdictional error nor has the Court below exercised it's jurisdiction with material irregularity so as to warrant interference by this Court.

34. Mr. Sunil Vashisth, the learned counsel representing first informant-opposite party-2 on the other hand has also opposed the present criminal revisions. He has substantially adopted the arguments raised by the learned A.G.A. in opposition to present criminal revisions. Apart from above, he contends as follows, which is evident from the written arguments filed by him, which is extracted herein under:-

(1) There are consistent allegations against revisionist Ishu @ Ishita right from first information report. The victim in her statement dated 1-2-2022 recorded under section 161 Cr.P.C. made specific allegations against Ishu @ Ishita stating that on the pretext of taking some file papers, she took her at the place where accused persons already present. The victim in her subsequent statement under section 164 Cr.P.C. stated that Ishita took her to Raj Chaupla and she helped Aditya Tomar and one unknown in forcibly taking her. She said that when she was taking on motorcycle, the accused Ishita following them in auto. The victim in her statement (recorded during trial) deposed specific allegations against Ishita that she had connivance with other accused and she helped them in her abduction. She also stated in her statement (recorded as P.W. 2) that she saw Veesu Tomar, Ishita, Yash and Aditya Chauhan together. Thus there are consistent allegations against Ishita for hatching conspiracy in abduction of victim. Thus the revisionist Ishita has been legally summoned for facing trial by exercising power under section 319 Cr.P.C.

(2) Accused Aditya Chauhan is the person who forcibly took victim with Veesu Tomar putting gun on her head. It is relevant to mention here that in subsequent statement (recorded under section 164 Cr.P.C.) dated 8-2-2022 the victim stated that at the time of forcibly taking her there was one another boy with Aditya Tomar who put gun on her head. It is relevant to mention here that in her evidence (recorded as P.W. 2) the victim at page no. 2 of her evidence deposed that the said boy was Aditya Chauhan. Thus the name of revisionist Aditya Chauhan came in light. However, his involvement came in subsequent statement of victim recorded under section 164 Cr.P.C. but name was disclosed in court. The victim in her said evidence clarified that earlier she did not know the name of Aditya Chauhan. There is consistency in the statement of victim ( recorded under section 164 Cr.P.C. dated 8-2-2022 and in her statement recorded during trial) regarding involvement of Aditya Chauhan whose name later came in the knowledge of victim. Thus there is evidence on record that the accused Aditya Chauhan had actively participated in the offence.

(3) Accused Yash was named in first informant report with the allegation of enticing away the victim with Veesu. It is relevant to mention here that victim in her subsequent statement ( recorded under section 164 Cr.P.C.) stated that in a hotel in Kithore accused Aditya and one boy committed rape with her. During trial, victim in her statement (at page 3) deposed that the boy, who committed rape with her in hotel in Kithore, was Yash Tomar. Thus allegations regarding commission of offence against Yash were made right from lodging of F.I.R. The victim earlier did not know the name of Yash Tomar and later she came to know, therefore, she disclosed his name in her evidence recorded in session trial.

(4) The evidence of P.W. 2 clearly shows active involvement of aforesaid revisionist in offence committed against her.

(5) As per the evidence of P.W. 1 and P.W. 2, no satisfaction in consonance with paragraph 106 of the Five Judges Bench judgment in Hardeep Singh could be recorded by Court below.

(6) A perusal of subsequent statement of victim (recorded under section 164 Cr.P.C.) as well as from her evidence recorded as P.W. 2 in session trial makes it clear that the revisionist along with accused Veesu @ Aditya Tomar committed the offence for which they have been summoned. The evidence of P.w. 2 is strong and cogent against revisionists. The test laid down in Hardeep case (reported in 2014 (3) S.C.C. 92 Hardeep Singh and others Vs. State of Punjab) applies in present case. The Additional Sessions Judge Court No. 1 has recorded finding to this effect in impugned order summoning the revisionist exercising power under section 319 Cr.P.C.

35. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by the Supreme Court. The chronology of same is as under:

(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Five Judges Bench)

(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Five Judges Bench) Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6.

(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568 Paragraphs 7, 8, 9, 15, 20, 21 and 22.

(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244 Paragraph 13.

(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.

(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.

(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.

(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.

(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.

(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.

(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.

(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27

(xiii) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17

(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.

(xv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.

(xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.

(xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.

(xix) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741 Supreme Court remanded the matter before Sessions Judge for decision afresh.

(xx). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxi). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (Five Judges Bench), Paragraphs 7, 37, 38 and 41.

(xxii). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxiii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxiv). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxv) Yashonandan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.

(xxvi) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxvii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174 (xxviii). Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730.

36. With the aid of above, the Court now proceeds to examine the veracity of impugned order dated 20.06.2023 passed by Additional District Sessions Judge, Court No.-1, Ghaziabad in Sessions Trial No. 352 of 2022 (State Vs. Vishnu Tomar @ Aditya) under Sections 366, 376, 328, 506, 342, 504, 120-B IPC, Police Station-Modinagar, District-Ghaziabad, whereby revisionists have been summoned under Section 319 Cr.P.C. to face trial in above-mentioned Sessions Trial.

37. Before proceeding to do so, it must be noticed that following issues stand settled as per judgements mentioned herein above and, therefore, they are not required to be dealt with.

38. A non-charge sheeted accused can be summoned by the Court of Sessions after the case has been committed to the Court of Sessions under Section 193 Cr.P.C. and for that purpose need not wait for the evidence of the witnesses to be recorded so that non-charge sheeted accused could be summoned under Section 319 Cr.P.C., vide Five Judges Bench Judgment in Dharam Pal (Supra).

39. Ambit and scope of powers under Section 319 Cr.P.C. now stand crystallized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh (supra).

40. A prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness without getting his examination-in-chief recorded, vide Five Judges Bench judgment in Hardeep Singh (Supra).

41. The Court while summoning a prospective accused must come to the conclusion that a prima-facie case for summoning of a prospective accused is made out and in this regard, the Court must record it's satisfaction in consonance with the observation made in paragraph 106 of the judgment in Five Judges Bench judgment in Hardeep Singh (Supra).

42. Though in view of the law laid down by the Five Judges Bench in Hardeep Singh (Supra) that a prospective accused can be summoned on the basis of statement-in-chief of one prosecution witness but in case, if the statement of the witness, who have deposed before Court below, was also recorded under Section 161 Cr.P.C. then in such a circumstance, the Court must draw a parallel in between the deposition of the witness as well as his statement under Section 161 Cr.P.C. to find out whether something new has emerged in the deposition or not, vide Brijendra Singh (Supra).

43. The Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as it is a relevant material, vide Brijendra Singh (Supra).

44. A prospective accused can be summoned only if, an inference of guilt of the accused can be drawn as per the material on record, vide Brijendra Singh (Supra).

45. The power under Section 319 Cr.P.C. is an extraordinary discretionary power, which should be exercised sparingly, vide S Mohammad Ishpahani (Supra).

46. A prospective accused should not be summoned by a Court by exercising it's jurisdiction in a casual and cavalier fashion but diligently, vide S Mohammad Ishpahani (Supra).

47. Court can summon a prospective accused by exercising power under Section 319 Cr.P.C. only when some strong and cogent evidence has emerged against a prospective accused and not merely on the basis of his complicity in the crime in question, vide S Mohammad Ishpahani (Supra).

48. In the judgments referred to above, there is a common thread that the Court can scrutinize the evidence/material on record while exercising power under Section 319 Cr.P.C.

49. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, the said statement is not to be discarded lightly, vide paragraph 37 of judgement in Manjeet Singh (Supra).

50. An accused, who has been summoned by the Court in exercise of power under section 319 Cr.P.C., cannot claim discharge, vide S. Mohammaed Ispahani (Supra) and Vikas Rathi (Supra).

51. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh (Supra) requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameters regarding exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.

52. In Rajesh and Others (Supra), it has been held that failure on the part of first informant in not filing a protest petition against the charge-sheet, cannot be treated as an impediment or bar in exercise of jurisdiction under section 319 Cr.P.C.

53. The reference made by a Two Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638, was answered by another Five Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289. The Court held that "The power under Section 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.". Thereafter, the Court also laid down the guidelines to be followed while exercising jurisdiction under Section 319 Cr.P.C.

54. A prospective accused is not required to be heard before an order under Section 319 Cr.P.C. is passed against him, vide Yashodhan Singh and Others (Supra).

55. In Sandeep Kumar (Supra), the Court after noticing paragraphs 95 to 106 of the Five Judges Bench judgment in Hardeep Singh (Supra), considered the ingredients of Section 149 IPC and with reference to above, upheld the order of trial Court, on the finding that in case, a person is a member of an unlawful assembly, the ingredients of Section 149 IPC are satisfied and therefore, no material qua the innocence of such an accused is required to be looked into at the stage of deciding an application under Section 319 Cr.P.C.

56. Having noted the settled position, the Court is now required to consider whether on the basis of depositions of PW-1 Kulveer Singh (first informant/father of the prosecutrix), PW-2 Divyanshi Chaudhary (the prosecutrix) and PW-3 Dr. Soniya Chaudhary (the Doctor, who had conducted internal medical examination of the prosecutrix), the revisionist could have been summoned by court below. As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier fashion."

57. Before proceeding to examine and evaluate the depositions of PW-1 Kulveer Singh (first informant/father of the prosecutrix), PW-2 Divyanshi Chaudhary (the prosecutrix) and PW-3 Dr. Soniya Chaudhary (the Doctor, who had conducted internal medical examination of the prosecutrix) before Court below and the other material collected by the Investigating Officer durinig course of investigation, it may be noticed that a Five Judges Bench of the Supreme Court in Hardeep Singh (Supra) has laid down the parameters regarding exercise of jurisdiction under Section 319 Cr.P.C.

58. The Bench, after having conducted an in-depth analysis of the statutory provisions and the case law on the issue, has observed that a prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness alone and the Court need not wait for the entire prosecution evidence to be recorded. In the case in hand, the application under Section 319 Cr.P.C. for summoning the prospective accused i.e. the revisionist herein and another was filed after the statement-in-chief/examination-in-chief of PW-1 and PW-2 was recorded and not after the entire prosecution evidence had been recorded. In view of the law laid down by the Apex Court as noted herein above, no illegality can be said to have been committed by Court below in deciding the application under Section 319 Cr.P.C. in the light of depositions of the three prosecution witness i.e. PW-1 Kulveer Singh (first informant/father of the prosecutrix), PW-2 Divyanshi Chaudhary (the prosecutrix) and PW-3 Dr. Soniya Chaudhary (the Doctor, who had conducted internal medical examination of the prosecutrix).

59. It has also been laid down by the Bench in aforementioned judgment that a prospective accused can be summoned only after the Court records it's satisfaction to the effect that a prima-facie case for summoning the prospective accused is made out. What will be the nature of satisfaction that is required to be observed by a Court before summoning a prospective accused is no longer shrouded in obscurity but stands crystallized in paragraph 106 of the report. For ready reference, the same is extracted herein under:-

"106. Thus, we hold that though only a prima facie 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."

60. Though the Constitution Bench in the case of Hardeep Singh (Supra) fairly crystallized the law regarding exercise of jurisdiction under Section 319 Cr.P.C. but subsequent to the above-mentioned Constitution Bench judgment, two different Division Benches of the Apex Court in Brijendra Singh and others Vs State of Rajasthan, (2017) SCC 706 and S. Mohammad Ispahani Vs. Yogendra Chamdak and others, (2017) 16 SCC 226 have redefined the parameters regarding exercise of jurisdiction under Section 319 Cr.P.C. On a conjoint reading of the aforesaid two judgments, the following mandate stands emerged:-

(a) a prospective accused can be summoned under Section 319 Cr.P.C. upon consideration of the statement-in-chief of one prosecution witness. As such, Court concerned need not wait for the entire prosecution evidence to be recorded.

(b) the plethora of evidence collected by the Investigating Officer during course of investigation is required to be looked into by a Court dealing with an application under Section 319 Cr.P.C. as it is relevant material.

(c) Court while dealing with an application under Section 319 Cr.P.C. must examine the statement of the witness recorded under Section 161 Cr.P.C. and thereafter, draw a parallel to find out whether something new has emerged in the deposition of such a witness.

(d) a prospective accused cannot be summoned simply on the basis of his mere complicity in the crime in question

(e) Court can summon a prospective accused in exercise of jurisdiction under Section 319 Cr.P.C. only if, an inference of guilt of the prospective accused can be gathered from the material on record.

(f) jurisdiction under Section 319 Cr.P.C. is an extra-ordinary discretionary jurisdiction and should be exercised sparingly.

(g) Court should exercise it's jurisdiction under Section 319 Cr.P.C. diligently and not in a casual and cavalier fashion.

(h) a prospective accused can be summoned only when some strong and cogent evidence has emerged against him and not merely on the basis of his complicity in the crime in question.

61. In the light of above, this Court is now required to consider as to whether as per the material on record, the Court below could have recorded it's satisfaction in consonance with the observations made in paragraph 106 of the report in Hardeep Singh (Supra) and thereafter arrive at the conclusion that a prima-facie case is made out to summon the prospective accused. Secondly, this Court will also have to answer as to whether it is the mere complicity of the prospective accused i.e. revisionist which has emerged in the crime in question or something more than mere complicity of present revisionist by way of strong and cogent evidence has emerged against revisionist? Lastly whether the Court below has summoned the revisionist in exercise of it's jurisdiction under Section 319 Cr.P.C. diligently or as termed by the Apex Court itself in a "casual and cavalier fashion"?

62. With the aforesaid background the Court has to answer aforementioned three questions that have emerged for consideration in these criminal revisions. Since there are three criminal revisions, therefore, the case of each of revisionists is taken up for consideration independently.

63. In respect of revisionist Yash Tomar, the Court finds that the application under Section 319 Cr.P.C. was filed by the prosecution/first informant after the depositions of PW-1 Kulveer Singh (first informant/father of the prosecutrix), PW-2 Divyanshi Chaudhary (the prosecutrix) and PW-3 Dr. Soniya Chaudhary (the Doctor, who had conducted internal medical examination of the prosecutrix) were recorded. The depositions of PW-1 and PW-2 alone are relevant as aforementioned witnesses are witnesses of fact, whereas PW-3 is a formal witness.

64. PW-1 and PW-2 are witnesses nominated in the charge sheet and their statements under Section 161 Cr.P.C. must have been recorded. The statement of first informant i.e. PW-1 was initially recorded on 11.09.2021 and thereafter, his second statement under Section 161 Cr.P.c. (Bayan Majeed) was recorded on 31.01.2022. Same are on record as Annexures 2 and 3 to the affidavit filed in support of the stay application in Criminal Revision No. 3891 of 2023 (Aditya Chauhan Vs. State of U.P. and Others).

65. From perusal of the first statement of PW-1 recorded under Section 161 Cr.P.C., which is on record at page 40 of the paper book pertaining to revisionist Aditya Chauhan, it is apparent that the names of Ishita @ Ishu and Yash Tomar have occurred in the said statement. No allegation has come forward against prospective accused Ishita @ Ishu, whereas named accused Vishu Tomar and Yash Tomar are alleged to have enticed away the daughter of first informant i.e. the prosecutrix.

66. In the subsequent statement of PW-1 under Section 161 Cr.P.C., which is on record at page 43 of the paper book pertaining to revisionist Aditya Chauhan, it is apparent that in the aforesaid statement, the first informant has departed from his previous statement under Section 161 Cr.P.C. The first informant has now stated that the daughter of first informant i.e. the prosecutrix had gone out in the company of her friend Ishita @ Ishu and she was kidnapped by named accused Vishu Tomar by extending fear.

67. When the aforementioned statements of PW-1 are examined, it is apparent that the first informant has not remained consistent in his statements. Except for the fact that the names of revisionist Yash Tomar and Ishita @ Ishu have emerged in the first statement of PW-1, no such fact has been alleged by PW-1 on the basis of which, the commission of an offence under Sections 366, 376, 506 IPC can be inferred against revisionist Yash Tomar or under Sections 366, 120-B and 506 IPC against revisionist Ishita @ Ishu.

68. The first informant Kulveer Singh has also deposed before Court below and his deposition before Court below was recorded as PW-1. The same is also on recorded as Annexure-10 at page 106 of the paper book pertaining to revisionist Aditya Chauhan. Perusal of the deposition of PW-1 will go to show that after the daughter of first informant i.e. the prosecutrix had gone missing, enquiry was made from prospective accused Ishita @ Ishu. Upon enquiry, prospective accused Ishita @ Ishu disclosed the names of Yash Tomar and Vishu Tomar. The prosecutrix was recovered after five months from the date of incident. Upon recovery, the prosecutrix is alleged to have informed her father PW-1 that named accused Vishu Tomar used to assault her and further committed rape upon her. The prosecutrix also alleged that exhortation was also extended by named accused Vishu Tomar to her. Allegation has come forward against prospective accused Ishita @ Ishu that she demanded a sum of Rs. 50 lacs for securing the release of prosecutrix. Though the name of Aditya has also emerged in the deposition of PW-1 but he could not explain as to how and from where, he along with Vishu Tomar enticed away the daughter of first informant i.e. the prosecutrix.

69. Thus when the aforementioned statements of PW-1 Kulveer Singh are examined as a whole, it is apparent that PW-1 has not remained consistent qua the very story, which he wanted to prove and establish, regarding the guilt of named/prospective accused. As per the statements/deposition of PW-1 Kulveer Singh, it is apparent that this witness in his statement under Section 161 Cr.P.C. has only disclosed the names of two of the prospective accused namely Yash Tomar and Ishita @ Ishu have emerged but no role has been assigned to the prospective accused in commission of the crime in question. This witness, in his deposition before Court below, has further disclosed the name of prospective accused Aditya but his involvement in the crime in question is based upon heresay evidence. The first informant has improved upon his previous statements under Section 161 Cr.P.C. and has come out with new fact yet the Court finds that even on the basis of same, it cannot be inferred that strong and cogent evidence has emerged against prospective accused i.e. the revisionists herein so as to infer the guilt of prospective accused in the crime in question.

70. PW-2 the prosecutrix initially approached this Court along with named and charge sheeted accused Vishnu Tomar. In compliance of the order dated 29.10.2021 passed by this Court, the statement of prosecutrix was recorded under Section 161 Cr.P.C. However, the prosecutrix in her aforesaid statement has not alleged criminality either against the named accused as well as the prospective accused.

71. The first informant i.e. father of the prosecutrix filed a recall application in the writ petition filed by the prosecutrix and Vishnu Tomar seeking recall of the order dated 29.10.2021. After hearing the parties on the recall application, the Bench, ultimately, dismissed the writ petition.

72. Subsequent to above order dated 29.10.2021, statement of the prosecutrix was recorded under Section 161 Cr.P.C. Same is on record at page 45 of the paper book pertaining to revisionist Aditya Chauhan. Perusal of the said statement will go to show that the name of prospective accused Ishita @ Ishu has emerged in the aforesaid statement but no such allegation has been made therein on the basis of which, the commission of crime under Sections 366, 120-B and 506 IPC could be inferred against prospective accused Ishita @ Ishu. The names of other prospective accused are conspicuous by their absence in the aforesaid statement of the prosecutrix. All the allegations made in the statement are pointed against named and charge sheeted accused Vishu Tomar.

73. The second statement of prosecutrix under Section 161 Cr.P.C. (Bayan Majeed) was also recorded, which is on record at page 51 of the paper book pertaining to revisionist Aditya Chauhan. In the aforesaid statement, the prosecutrix has disclosed certain facts relating to named and charge sheeted accused Vishu Tomar. No allegation has come forward against any of the prospective accused.

74. Subsequently, the second statement of prosecutrix was recorded on 08.02.2022 under Section 164 Cr.P.C., which is on record at page 83 of the paper book pertaining to revisionist Aditya Chauhan. The prosecutrix in her aforesaid statement has taken the name of prospective accused Ishita @ Ishu, the name of some unknown person has also emerged in her aforesaid statement, who is alleged to have dislodged her modesty by committing rape upon her. However, in the entire statement, no allegations with reference to the names of prospective accused has been mentioned. As such, no inference regarding commission of crime under Sections 366, 376, 506 IPC could be inferred against the prospective accused Aditya Chauhan, Yash Tomar and Bhangu.

75. Ultimately, the prosecutrix deposed before Court below as PW-2, the copy of the statement-in-chief/examination-in-chief of prosecutrix is no record as Annexure-9 at page 101 of the paper book pertaining to revisionist Ishita @ Ishu. Perusal of deposition of PW-2 goes to show that PW-2, in her aforesaid statement, mentioned the name of prospective accused Ishita @ Ishu, who is alleged to have introduced the prosecutrix to named and charge sheeted accused Vishu Tomar @ Aditya Tomar. However, as per the said deposition, there is nothing in the same so as to even infer the commission of an offence under Sections 366, 120-B and 506 IPC by prospective accused Ishita @ Ishu. For the first time, the prosecutrix has mentioned the name of prospective accused Aditya Chauhan and it has been alleged by the prosecutrix that he along with named accused Vishu Tomar forcibly kidnapped the prosecutrix. The name of prospective accused Yash Tomar has also emerged for the first time in the deposition of prosecutrix before Court below, wherein she has alleged that prospective accused Yash Tomar and named accused Vishu Tomar deliberately committed rape upon her.

76. It is thus apparent that the name of prospective accused Ishita @ Ishu has emerged in the statement of first informant Kulveer Singh recorded under Section 161 Cr.P.C. as well as in his deposition before Court below as PW-1. However, on a conjoint reading of the statement and deposition of PW-1, it is apparent that PW-1 in his deposition before Court below has stated something new. However, on a conjoint reading of the statement/deposition of PW-1 as noted herein above, only an inference regarding the complicity of prospective accused Ishita @ Ishu can be inferred. It cannot be said that as per the statement/deposition of first informant Kulveer Singh/PW-1 strong and cogent material has emerged against prospective accused Ishita @ Ishu so as to establish the commission of crime by her under Sections 366, 120-B and 506 IPC.

77. Yash Tomar is nominated as a named accused in the FIR but was exculpated by the Investigating Officer in the police report dated 01.02.2022 submitted under Section 173(2) Cr.P.C. As already noted above, no such material has emerged in the statement/deposition of PW-1 Kulveer Singh on the basis of which, something more than mere complicity of this prospective accused could be inferred. The name of this prospective accused has not surfaced in the statement of prosecutrix recorded under Section 164 Cr.P.C. nor in her subsequent statement under Section 161 Cr.P.C. However, the prosecutrix in her subsequent statement under Section 164 Cr.P.C. has mentioned the names of Ishita @ Ishu and an unknown person, meaning thereby that she has not specifically mentioned the names of the other three prospective accused i.e. Yash Tomar, Aditya Chauhan and Bhangu. However, the prosecutrix, in her deposition before Court below, has mentioned the names of prospective accused Ishita @ Ishu and Aditya Chauhan. Accused Aditya Chauhan is alleged to have kidnapped the prosecutrix along with named and charge sheeted accused Vishu Tomar.Yash Tomar and Vishu Tomar are also alleged to have deliberately dislodged the modesty of prosecutrix.

78. The issue that arises for consideration is whether simply on the basis of above, Court below could have recorded the same degree of satisfaction as is required to be observed i.e. in consonance with the observations made in paragraph 106 of the Five Judges Bench judgment in Hardep Singh (Supra) and thereafter, returned a finding that a prima-facie case for summoning the prospective accused is made out.

79. When the statements of first informant and his deposition before Court below as PW-1 and the statements of the prosecutrix and her deposition before Court below as PW-2 are taken as a whole, this Court finds that both PW-1 and PW-2 have not been consistent qua the very story, they set out to establish and prove against the named accused as well as prospective accused. There is a marked improvement in the subsequent statements/depositions of aforementioned witnesses. However, neither the improvement, which has emerged in the same, has been explained nor an explanation has come forward with regard to the omission occurring in the previous statements. The Court further finds that though consistently the name of prospective accused Ishita @ Ishu has emerged in the statements/depositions of PW-1 and PW-2 but no such allegations has been made therein so as to infer the complicity of prospective accused Ishita @ Ishu in the crime in question or the commission of crime itself under Sections 366, 120-B and 506 IPC. As such, the submissions urged by Mr. Amit Mishra, the learned counsel for revisionist-Ishita @ Ishu are found to have forged and the same substantially dislodged the order impugned insofar as it relates to prospective accused Ishita @ Ishu.

80. Sofar as prospective accused Yash Tomar is concerned, this Court finds that the name of this witness has not emerged in the statements of PW-1 nor in his deposition before Court below. Similarly, his name has neither surfaced in the first statement of the prosecutrix under Section 161 Cr.P.C. nor thereafter in her statements under Section 161 Cr.P.C. nor in her second statement under Section 164 Cr.P.C. The name of this prospective accused has emerged for the first time in the deposition of prosecutrix before Court below as PW-2. However, the prosecutrix in her deposition has come out with a new story, which is alien to her previous statements. No explanation has come forward as to how the prosecutrix came to know about the names of this prospective accused and secondly why his name was not mentioned in her previous statement recorded before her deposition before Court below. E

81. Consequently, by reason of above, the statement/deposition of PW-2 qua the revisionist Yash Tomar suffers from the vice of contradiction, exaggeration and embellishment, which makes the prosecutrix unworthy of trust and also her deposition qua the present revisionist unworthy of reliance. Simply on the basis of one line statement in her deposition before Court below that prospective accused Yash Tomar also dislodged her modesty, there is nothing on record against this revisionist. When the aforesaid solitary statement is analyzed in the light of above, the same stands in isolation not supported by the attending circumstances by way of previous statements of the prosecutrix. Therefore, simply on the basis of above, it cannot be conclusively concluded that offence under Sections 366, 376 and 506 IPC is made out against prospective accused Yash Tomar.

82. Aditya Chauhan, who is also a prospective accused, is not named in the FIR. This prospective accused has been summoned by Court below pursuant to an order passed under Section 319 Cr.P.C. by Court below. The name of this witness has not figured in the statement/deposition of PW-1 nor in the statement of the prosecutrix recorded under Section 164 Cr.P.C. followed by her statement under Section 161 Cr.P.C. nor in her second statement under Section 164 Cr.P.C. His name has emerged for the first time in the deposition of prosecutrix before Court below as PW-2. The same reasoning which applies to the case of Yash Tomar also stands attracted in the case of this prospective accused.

83. Having undertaken an indepth analysis of the statements/depositions of PW-1 and PW-2, this Court finds that except for the fact that an inference regarding complicity of prospective accused Ishita @ Ishu, Yash Tomar and Aditya Chauhan can be drawn, no strong and cogent evidence has emerged against the aforesaid prospective accused so as to prima-facie establish the commission of a crime under Sections 366, 376 and 506 IPC on the one hand and Sections 366, 120-B and 506 IPC on the other hand. The Court further finds that PW-1 and PW-2 have not remained consistent in their statements/depositions before the Investigating Officer as well as before Court below. Improvements have occurred in the subsequent statements/deposition of PW-1. As such, PW-1 himself has not been consistent qua the prosecution story, which he set out to prove to establish the complicity of prospective accused in the crime in question. Nothing concrete has emerged in the statement/deposition of PW-1 Kulveer Singh (father of the prosecutrix) so as to infer something more than mere complicity of the prospective accused in the crime in question.

84. PW-2 the prosecutrix on the other hand has also not remained consistent qua the very occurrence, which happened with her. Though the prosecutrix has taken the name of prospective accused Ishita @ Ishu, in her previous statements as well as her deposition before Court below also but has not categorically averred any such fact on the basis of which, the commission of crime by prospective accused Ishita @ Ishu under Sections 366, 120-B and 506 IPC could be conclusively concluded. Similarly, PW-2, in her previous statement under Section 164 followed by her subsequent statement under Section 161 Cr.P.C. and ultimately in her second statement under Section 164 Cr.P.C. she has mentioned the name of Ishita @ Ishu throughout but has not mentioned the names of other prospective accused. It is for the first time, in her deposition before Court below that PW-2 has mentioned the names of prospective accused Yash Tomar and Aditya Chauhan. The improvement so made in her deposition before Court below remains unexplained nor an explanation has come forward that though the occurrence giving rise to present criminal proceeding is personal to the prosecutrix while their names were not mentioned in the previous statement of the prosecutrx. Equally relevant to the fact as to why their names have been mentioned in her deposition before Court below. In the absence of anything regarding above, there is clearly inconsistently, contradiction, exaggeration and embellishment in the deposition of the prosecutrix before Court below which makes her deposition qua the prospective accused before Court below unworthy of credit and therefore unworthy of trust.

85. On the above conspectus, this Court has no hesitation to conclude that no strong and cogent evidence has emerged against the prospective accused. As per the material on record, as noted herein above, simply an inference regarding the complicity of the prospective accused can be inferred. Therefore, what follows from above, is that no inference regarding the guilt of prospective accused can be inferred as per the material on record. The same leads to the conclusion that Court below could not have recorded the satisfaction as is required to be observed in consonance with the observations made in paragraph 106 of the Five Judges Bench judgment in Hardeep Singh (Supra). As such, no prima-facie case is made out to summon the prospective accused in the crime in question. In view of above, the finding returned by Court below that something more than mere complicity of the prospective accused has emerged and therefore, they are liable to be summoned is a finding which is not only illegal, perverse but also erroneous.

86. In view of the discussions made above, the inescapable conclusion is that no cast iron case is made out for summoning the prospective accused i.e. the revisionists herein.

87. As a result, the present criminal revision succeeds and is liable to be allowed.

88. It is, accordingly, allowed.

89. The impugned order dated 20.06.2023 passed by Additional District Sessions Judge, Court No.-1, Ghaziabad in Sessions Trial No. 352 of 2022 (State Vs. Vishnu Tomar @ Aditya), under Sections 366, 376, 328, 506, 342, 504, 120-B IPC, Police Station-Modinagar, District-Ghaziabad, is, hereby, set aside.

90. Considering the facts and circumstances of the case, the cost is made easy.

Order Date :- 09.08.2024/Vinay

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