Allahabad High Court
Uma Shankar And Another vs State Of U.P. And 3 Others on 16 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 22.05.2024 Delivered on 16.07.2024 Court No. - 64 Case :- CRIMINAL REVISION No. - 3735 of 2023 Revisionist :- Uma Shankar And Another Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- Ashok Kumar Upadhyay,Shailendra Kumar Singh Counsel for Opposite Party :- G.A.,Sandeep Kumar Tripathi Hon'ble Rajeev Misra,J.
1. Challenge in this criminal revision is to the order dated 17.06.2023 passed by Special Judge (POCSO Act)/ Additional Sessions Judge, Bareilly, in Special Case No. 196 of 2020 (State Vs. Veerpal ) under Sections 363, 366, 376 (3), 376 (2) I.P.C. and Sections 3/4 (2) and 5 (L) 6 POCSO Act, Police Station Bithari Chainpur, District Bareilly, whereby the application dated 03.05.2023 under Section 319 Cr.P.C. filed by the prosecution/first informant has been allowed and consequently summoned the prospective accused i.e. revisionists (herein) under Section 120B and Sections 16/17 POCSO Act to face trial in aforementioned Sessions Case.
2. Perused the record.
3. I have heard Mr. Shailendra Kumar Singh, the learned counsel for revisionists, the learned A.G.A. for State, opposite party-1 and Mr. Sandeep Kumar Tripathi, the learned counsel representing first informant/opposite party-2.
4. Record shows that in respect of an incident, which is alleged to have occurred on 22.04.2022, a delayed F.I.R. 26.04.2022 was lodged by first informant Bhagwan Das (the father of the prosecutrix) and was registered as Case Crime No. 0233 of 2022 under Section 363 I.P.C. Police Station-Bithari Chainpur, District-Bareilly. In the aforesaid F.I.R., three persons namely Veerpal, Uma Shankar and Totaram 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 Veerpal with the connivance of his brother Uma Shankar and co-accused Totaram enticed away the minor daughter of the first informant i.e. prosecutrix aged about 14 years.
6. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned crime number in terms of Chapter XII Cr. P. C. The prosecutrix was recovered on 14.05.2022. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. by the Investigating Officer, which is on record at page 63 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary, the prosecutrix has stated that she willingly accompanied the named accused Veerpal. Subsequent to above, the prosecutrix was requested for her medical examination. Her Medico Legal Examination Report has been brought on record as Annexure-3 to the affidavit filed in support of present criminal revision. The prosecutrix in her statement before the Doctor, who medically examined her, has not supported the F.I.R. However, the Doctor, who examined the prosecutrix, did not find any external injury on her body, so as to denote commission of deliberate or forceful sexual assault. However, with regard to the private part of the prosecutrix, the Doctor has opined as follows:
"Old healed torn"
7. Certain samples were also taken from the body of the prosecutrix for pathological examination. However, the result of the same is in negative. As per medical opinion, the age of the prosecutrix was determined to be 17 years.
8. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., which is on record at page 83 of the paper book. The prosecutrix in her aforesaid statement has departed from her previous statement under Section 161 Cr.P.C. She has not supported the F.I.R. and has alleged criminality against the named accused.
9. Subsequent to above, Investigating Officer examined the first informant and other witnesses under Section 161Cr.P.C., wherein also the complicity of named accused, in the crime in question, has also emerged. On the basis of above and other material collected by the Investigating Officer during course of investigation as well as the mitigating circumstances that emerged during course of investigation, he came to the conclusion that the complicity of only one of the named accused i.e. Veerpal is fully established in the crime in question. Investigating Officer, accordingly, submitted the police report in terms of Section 173 (2) Cr.P.C dated 01.07.2022, whereby named accused Veerpal has been charge sheeted under Sections 363, 366, 376 (3), 376 (2) I.P.C. and Section 3/4 (2) and 5 (L) 6 of POCSO Act.
10. Upon submission of afore-mentioned police report, cognizance was taken upon same by concerned Special Judge, in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. Resultantly, Special Case No. 196 of 2020 (State Vs. Veerpal ) under Sections 363, 366, 376 (3), 376 (2) I.P.C. and Sections 3/4 (2) and 5 (L) 6 POCSO Act, Police Station Bithari Chainpur, District Bareilly came to be registered. The concerned Special Judge proceeded with the trial. Court below in compliance of Section 211 Cr.P.C. framed charges against charge sheeted accused. However, the same were denied by the charge sheeted accused and he demanded trial. Accordingly, the trial procedure commenced.
11. Prosecution in discharge of it's burden to bring home the charges so framed against charge sheeted accused adduced four prosecution witnesses upto this stage namely P.W.-1 Bhagwan Das (first informant/ father of the prosecutrix), P.W.2, the prosecutrix namely X, P.W.-3, Raju ( son of first informant/brother of the prosecutrix) and P.W.-4 Papoo, son of first informant/brother of the prosecutrix.
12. After the statement-in-chief/examination-in-chief of aforementioned witnesses was recorded, the prosecution/first informant filed an application dated 03.05.2023, under Section 319 Cr.P.C. alleging therein that since complicity of prospective accused i.e. named but not charge sheeted accused i.e. the revisionist herein namely Uma Shankar and Totaram is also established in the crime in question as per the depositions of prosecution witnesses examined upto this stage, therefore, they be also summoned to face trial.
13. Afore-mentioned application under Section 319 Cr.P.C. was opposed by the counsel representing charge sheeted accused. Court below upon evaluation and examination of the allegation made in the application under Section 319 Cr.P.C in the light of the depositions of P.W.-1, P.W.-2, P.W.-3 and P.W.-4 came to the conclusion that since the complicity of the prospective accused is also established in the crime in question therefore, they are liable to be summoned to face trial. On the above premise, court below, vide order dated 17.06.2023 allowed the application under Section 319 Cr.P.C. filed by the prosecution/first informant.
14. Thus feeling aggrieved by order dated 17.06.2023 passed by court below i.e. Special Judge (POCSO Act), the revisionists have now approached this Court by means of present criminal revision.
15. Perusal of order impugned will go to show that the court below came to the conclusion that complicity of prospective accused stands established in the crime in question, as per the deposition of P.W.-2 i.e. the prosecutrix, wherein the names of the prospective accused have emerged. Furthermore, the statements of P.W.-3 and P.W.-4 support the statement of P.W.-2. As per statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C., it is apparent that the named accused Veerpal enticed away the prosecutrix with the aid of the prospective accused i.e. revisionists (herein).
16. Mr. Shailendra Kumar Singh, the learned counsel for revisionists in challenge to the order impugned submits that the order impugned in present criminal revision is not only illegal but also in excess of jurisdiction. Consequently, the same is liable to be set aside by this Court. With reference to the record, he submits that findings recorded by court below in support of the conclusion drawn in the order impugned are not only illegal but also perverse. Referring to the statement of the prosecutrix recorded under Sections 161 Cr.P.C., he submits that the prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary, she is a willing and consenting party. Furthermore, in her subsequent statement recorded under Section 164 Cr.P.C., she has departed from her previous statement under Section 161 Cr.P.C. No explanation has been offered by the prosecutrix regarding the departure so made. Apart from above, no injury was found on the body of the prosecutrix, so as to denote the commission of deliberate sexual assault. He, therefore, contends that in view of above, the findings returned by court below to the effect that as per the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C., the prospective accused are guilty of connivance with the named accused Veerpal for abducting/kidnapping of the prosecutrix are manifestly erroneous.
17. It is then contended that deposition of the prosecutrix before court below has to be read as a whole. The prosecutrix in her deposition before court below has only alleged that prospective accused visited the named accused Veerpal with whom the prosecutrix was staying at Haldwani. Except for this bald allegation, no such material has emerged on record to show that strong and cogent evidence has emerged against the prospective accused apart from their mere complicity in the crime in question. On the above premise, it is thus urged by the learned counsel for revisionists that order impugned cannot be sustained and, therefore, liable to be set aside by this Court.
18. Per contra, the learned A.G.A. for State, opposite party-1 and the learned counsel representing first informant/opposite party-2 have vehemently opposed this criminal revision. They submit that order impugned in present criminal revision is perfectly just and legal. Consequently, no interference is warranted by this Court in present criminal revision. Attention of the court was invited to the depositions of P.W.-1, P.W.-2, P.W.-3 and P.W.-4. With reference to above, it was urged that the depositions of P.W.-1, P.W.-3 and P.W.-4 are consistent with the deposition of P.W.-2 i.e. the prosecutrix. The prosecutrix in her deposition before court below has stated in clear and categorical terms that the prospective accused visited the named accused Veerpal at Haldwani, where the prosecutrix was staying with him. It is thus urged that this by itself goes to show that the prospective accused were aware about the occurrence and the place, where the charge sheeted accused was staying with prosecutrix. Therefore, it is not only their mere complicity in the crime in question but also strong and cogent evidence has emerged against them. As such, no illegality has been committed by court below in summoning the prospective accused to face trial alongwith charge sheeted accused to face trial in afore-mentioned Sessions Case.
19. Having heard the learned counsel for revisionists, the learned A.G.A. for State, opposite party-1 and the learned counsel representing opposite party-2 and upon perusal of record, this Court finds that following facts stands crystallized:
I. Revisionists who are prospective accused are named in the F.IR..
II. The revisionists have been exculpated by the Investigating Officer in the police report dated 01.07.2022 submitted under Section 173 (2) Cr.P.C. III. The prosecutrix in her statement under Section 161 Cr.P.C. has neither supported the F.I.R. nor has she implicated the prospective accused. IV. The prosecutrix in her statement before Doctor, who medically examined her, has not stated anything against the prospective accused. V. As per medical opinion, no such injury was found on the body of the prosecutrix, so as to denote the commission of forceful or deliberate sexual assault. VI. As per the medical opinion, regarding the private part of the prosecutrix, it appears that the prosecutrix is a consenting party. VII. The prosecutrix in her subsequent statement under Section 164 Cr.P.C. has departed from her previous statement under Section 161 Cr.P.C. It is for the first time role of exhortation has been assigned to one of the prospective accused namely Chandan Lal. No allegation has been made against prospective accused Totaram and Uma Shankar. Chandan Lal is the father of the charge sheeted accused Veerpal but has not been implicated as an accused in the crime in question. VIII. The prosecutrix in her deposition before court below, who has deposed as P.W.2, has clearly stated that Mansukh and Totaram used to visit Veerpal with whom the prosecutrix was staying at Haldwani. She has, further, stated that they extended exhortation. VIII. No allegation has come forward against Uma Shankar a prospective accused. On the above conspectus, this Court finds that the prospectrix in her statement under Section 161 Cr.P.C., before Doctor, who medically examined her, the statement under Section 164 Cr.P.C. and ultimately in her deposition before court below has not remained consistent. As such, the deposition of the prosecutrix before court below is unworthy of credit and therefore not reliable.
20. Except for the complicity of the prospective accused, no strong and cogent evidence has emerged, so as to infer something more than mere complicity of the prospective accused. Thus, as per the depositions of the prosecution witnesses, who have deposed up to this stage, no inference regarding the guilt of the prospective accused can be inferred.
21. Offence complained of is private and personal to the prosecutrix and, therefore, it is the statement of the prosecutrix alone, which shall be the determining factor to decide as to whether a prima face case is made out against prospective accused or not? In view of the contradictory statements of the prosecutrix as clearly noted above and further no such new material has emerged in her deposition so as to infer something more than mere complicity of the accused. The recital occurring in the deposition of the prosecutrix that the prospective accused with the named accused, while he was staying at Haldwani is by itself not so sufficient a circumstance so as to infer complicity against the prospective accused.
22. At this juncture, it is apposite to refer to paragraph 106 of the Five Judges Bench judgement of Supreme Court in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC, 92. wherein the court has held that before summoning a perspective accused, Court has to record a satisfaction that a prima facie case for summoning a prospective accused is made out. The nature of such satisfaction that is required to be observed by court below dealing with application under Section 319 Cr.P..C. stands crystallized in paragraph 106 of the report, which reads as 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."
23. Furthermore, conspiracy is a closed door affair and, therefore, subject to trial evidence. However, even in the depositions of prosecution witnesses, no such material has emerged on the basis of which, conspiracy could be inferred against the prospective accused nor the same can be inferred from the circumstances as have emerged in the depositions of the prosecution witnesses examined upto this stage. In this regard, reference be made to the following judgements of the Supreme Court :-
(i). V.C. Shukla Vs. State (Delhi Administration), (1980) 2 SCC 665 (Three Judges Bench) Paragraph 8.
(ii). Kehar Singh Vs. State (Delhi Admn.), (1988) 3 SCC 609 (Three Judges Bench) Paragraph 274, 275
(iii). K.T.M.S. Mohd. And Another Vs. Union of India, (1992) 3 SCC 178 (Division Bench) Paragraph 54
(iv). Suresh Chandra Bahri Vs. State of Bihar 1995 Supp (1) SCC 80 (Division Bench) Paragraph 96
(v). E.K. Chandrasenan Vs. State of Kerala, (1995) 2 SCC 99 (Division Bench) Paragraphs 20 and 21
(vi). State of Kerala Vs. P. Sugathan and Another, (2000) 8 SCC 203 (Division Bench) Paragraphs 12 and 13
(vii). Saju Vs. State of Kerala (2001) 1 SCC 378 (Division Bench) Paragraphs 7 and 10
(viii). Devendra Pal Singh Vs. State (NCT of Delhi), (2002) 5 SCC 234 (Three Judges Bench) Paragraphs 40, 41, 43 and 49
(ix). Mohd. Khalid Vs. State of West Bengal, (2002) 7 SCC 334 (Three Judges Bench) Paragraphs 17, 18, 21, 22, 23, 24 and 27
(x). Ram Narayan Popli Vs. CBI, (2003) 3 SCC 641 (Three Judges Bench) Paragraphs 346, 347, 354
(xi). Damodar Vs. State of Rajasthan, (2004) 12 SCC 336 (Division Bench) Paragraphs 13, 14, 15, 16 and 17
(xii). State (NCT of Delhi) Vs. Navjot Sandhu, (2005) 11 SCC 600 (Division Bench) Paragraphs 96, 97, 98, 99 and 101
(xiii). Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra, (2008) 10 SCC 394 (Division Bench) Paragraphs 20 and 25
(xiv). Baldev Singh Vs. State of Punjab, (2009) 6 SCC 564 (Division Bench) Paragraph 17
(xv). Ram Bharosey Vs. State of Uttar Pradesh, (2010) 1 SCC 722 (Division Bench) Paragraphs 18, 19, 20 and 21 (xvi). Baliya Alias Bal Kishan Vs. State of Madhya Pradesh, (2012) 9 SCC 696 (Division Bench) Paragraphs 15, 16, 17, 18 and 19 (xvii). Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao, (2012) 9 SCC 512 (Division Bench) Paragraph 24 (xviii). N.V. Subbarao Vs. State of Andhra Pradesh, (2013) 2 SCC 162 (Division Bench) Paragraphs 40 and 41 (xix). State of Karnataka Vs. J. Jayalalitha, (2017) 6 SCC 263, (Division Bench) Paragraphs 173 and 176 (xx). Mukesh Vs. State (NCT of Delhi) (2017) 6 SCC 1 (Three Judges Bench) Paragraphs 286, 288, 290, 464, 465, 466, 468 and 471 (xxi). Bilal Hajar @ Abdul Hameed Vs. State represented by Inspector of Police, (2019) 17 SCC 451 (Division Bench) Paragraphs 30, 31, 32, 33 and 34 (xxii). Rajendra @ Rajesh @ Raju Vs. State (NCT of Delhi), (2019) 10 SCC 623 (Division Bench) Paragraphs 10, 12 and 17 (xxiii). Parveen @ Sonu Vs. State of Haryana, 2021 SCC OnLine SC 1184, (Division Bench) Paragraph 12 (xxiv). Desh Deepak Kumar Vihangam @ Deepak Kumar VS. State of Bihar, (2022) 7 SCC 721 (Division Bench) Paragraphs 19, 20 and 21 (xxv). Ram Sharan Chaturvedi Vs. State of Madhya Pradesh, 2022 SCC OnLine SC 1080 (Division Bench) Pragraphs 24 and 25 (xxvi). Maghavendra Pratap Singh @ Pankaj Singh Vs. State of Chhattisgarh, 2023 SCC OnLine SC 486 (Division Bench) Paragraph 32 (xxvii). Sajeev Vs. State of Kerala, 2023 SCC OnLine SC 1470 (Division Bench) Paragraphs 35 and 36 (xxviii). Raja Naykar Vs. State of Chhattisgarh, (2024) 3 SCC 481 (Division Bench) Paragraphs 16, 17 and 18 (xxix). Bhojram Sahu and Another Vs. State of Chhattisgarh, 2024 SCC OnLine Chh 3966 (Division Bench) Paragraphs 36 and 37.
24.When the order impugned is examined in the light of above, with reference to the material on record as noted above this Court finds that no satisfaction that is required only could have been recorded by court below qua the guilt of prospective accused. In short, no inference regarding the guilty of the prospective accused can be inferred as per the material on record.
25. In view of above discussion court below, while passing the order impugned, has committed a jurisdictional error or has exercised it's jurisdiction with such material irregularity, so as to vitiate the order impugned and warrant interference by this Court.
26. As a result, present criminal revision succeeds and is liable to be allowed.
27. It is, accordingly, allowed.
28. The order impugned dated 17.06.2023 passed by Special Judge (POCSO Act)/ Additional Sessions Judge, Bareilly, in Special Case No. 196 of 2020 (State Vs. Veerpal ), under Sections 363, 366, 376 (3), 376 (2) I.P.C. and Sections 3/4 (2) and 5 (L) 6 POCSO Act, Police Station Bithari Chainpur, District Bareilly is, hereby, set aside.
29. Considering the facts and circumstances of the case, the cost is made easy.
Order Date :- 16.07.2024 YK