Allahabad High Court
Sudhir @ Gabbar And Another vs State Of U.P. & 3 Others on 30 September, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:159393 Court No. - 77 Case :- APPLICATION U/S 482 No. - 19325 of 2024 Applicant :- Sudhir @ Gabbar And Another Opposite Party :- State Of U.P. & 3 Others Counsel for Applicant :- Arvind Kumar Sahu,Praveen Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Bindheswari Prasad along with Mr. Praveen Kumar Srivastava, the learned counsel for applicants and the learned A.G.A. for State-opposite party-1.
2. Perused the record.
3. Applicants-Sudhir @ Gabbar and Ragni, who are charge sheeted accused, have approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:-
"It is, therefore, most respectfully prayed this Hon'ble Court may graciously be that pleased to allow the present application and set aside the judgment and order dated 17.01.2024 passed by Additional Sessions Judge / Special Judge, Pocso Act, Budaun, passed in Session Trial No. 654 of 2022 (State Vs. Rama and others) under section- 363, 366-A, 376-(3) and 120-B I.P.C., under section-16/17 Pocso Act. Police Station- Moosajhag District- Budaun. In the interest of justice. And further be pleased to allow the present application and stay the judgment and order dated 17.01.2024 passed by Additional Sessions Judge / Special Judge, Pocso Act, Budaun, passed in Session Trial No. 654 of 2022 (State Vs. Rama and others) under section- 363, 366-A, 376-(3) and 120-B I.P.C., under section-16/17 Pocso Act. Police Station- Moosajhag District- Budaun. In the interest of justice. Or be pleased to pass any other order or direction which this Hon'ble Court may deem fit and proper in view of the facts and circumstances of the case. In the interest of justice."
4. Record shows that in respect of an incident, which is alleged to have occurred on 10.07.2021, a delayed FIR dated 11.08.2021 was lodged by first informant-opposite party-4 Smt. Preeti and was registered as Case Crime No. 0194 of 2021 under Sections 363, 366 IPC, Police Station-Moosa Jhag, District-Budaun. In the aforesaid FIR, 4 persons namely - (1) Sudhir @ Gabbar, (2) Ragini, (3) Ashok and (4) Rama have been nominated as named accused.
5. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. Thereafter, Investigating Officer recorded the statements of first informant-opposite party-4 including his second statement (Bayan Majeed) and other witnesses under Section 161 Cr.P.C. The prosecutrix was recovered on 10.05.2022. Subsequent to above, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. by the Investigating Officer. This was followed by the statement of the prosecutrix under Section 164 Cr.P.C. There is nothing on record show as to whether the prosecutrix was medically examined or not. However, as per the medical determination of age of the prosecutrix, she was said to be aged about 17 years. On the basis of above and other material collected by him, during course of investigation, Investigating Officer came to the conclusion that offence complained of is established only against some of the named accused. He, accordingly, opined to submit the charge sheet/police report. Ultimately, the Investigating Officer submitted the charge sheet/police report dated 01.07.2022 in terms of Section 173(2) Cr.P.C., whereby one of the named accused i.e. Rama was charge sheeted under Sections 363, 366A, 376(3) IPC and Section 5J(ii)L/6 POCSO Act, whereas other named accused namely (1) Sudhir @ Gabbar, (2) Mamta @ Ragini and (3) Ashok have been exculpated.
6. Upon submission of aforementioned police report, cognizance was taken upon same by the Jurisdictional Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. However, as offence complained of is exclusively triable by the Court of Sessions/Special Judge, he, accordingly, in compliance of Section 209 Cr.P.C. committed the case to the Court of Sessions. In view of above, Special Case No. 654 of 2022 (State Vs. Rama) under Sections 363, 366, 376 IPC and Sections 5/6 POCSO Act came to be registered in the Court of Special Judge (POCSO Act), Budaun.
7. Concerned Special Judge, in compliance of Section 228 Cr.P.C., framed specific and distinct charges against charge sheeted accused, who denied the same. Resultantly, the trial procedure commenced.
8. Prosecution in discharge of it's burden to bring home the charges so framed against charge sheeted accused adduced the following witnesses up to this stage i.e. PW-1 Smt. Preeti, first informant/mother of the prosecutrix and PW-2, the prosecutrix.
9. After the depositions of aforementioned witnesses were recorded before Court below, first informant-opposite party-4 filed an application dated 25.10.2023 under Section 319 Cr.P.C. (Paper No. 26-Kha) with the prayer that since complicity of Sudhir @ Gabbar, Ashok and Ragini is also established in the crime in question as per the depositions of aforementioned witnesses, therefore, they be also summoned to face trial in aforementioned Special Case.
10. It transpires from record that no objection to the aforesaid application was filed by the charge sheeted accused.
11. Ultimately, Court below examined and evaluated the allegations made in the application dated 25.10.2023 under Section 319 Cr.P.C. (Paper No. 26-Kha) in the light of statement-in-chief/examination-in-chief of PW-1 and PW-2. After having undertaken the aforesaid exercise, Court below came to the conclusion that since complicity of named but not charge sheeted accused i.e. the applicants herein is also prima-facie apparent in the crime in question, therefore, they are liable to be summoned to face trial in aforementioned Special Case. Accordingly, Court below i.e. Additional Sessions Judge/Special Judge, POCSO Act, Budaun, vide order dated 17.01.2024 allowed the application dated 25.10.2023 under Section 319 Cr.P.C. (Paper No. 26-Kha).
12. Thus feeling aggrieved by the above order dated 25.10.2023, applicants, who have now been summoned by Court below to face trial in aforementioned criminal case, have approached this Court by means of present application under Section 482 Cr.P.C.
13. Learned counsel for applicants contends that order impugned in present application is not only illegal but also arbitrary. Consequently, the same is liable to be quashed by this Court. Admittedly, applicants Sudhir @ Gabbar and Ragini were nominated as 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 applicants in the crime in question could be said to be prima-facie apparent. Accordingly, applicants were exculpated by the Investigating Officer.
14. On the above premise, it is contended by the learned counsel for applicants that since no protest petition was filed by the first informant-opposite party-4 against the charge sheet/police report dated 01.07.2022 submitted by the Investigating Officer in the light of law laid down by the Apex Court in Bhagwant Singh Vs. Commissioner of Police And Another, (1985) 2 SCC 537,the application under Section 319 Cr.P.C. filed by first informant was wholly misconceived and therefore, liable to be dismissed. Court below, while passing the order impugned, has completely ignored aforesaid aspect of the matter, which has vitiated the same. Consequently, the order impugned is liable to be quashed by this Court.
15. According to the learned counsel for applicants, the Investigating Officer, who had investigated the concerned case crime number, has not yet deposed before Court below. In the absence of deposition of the Investigating Officer, Court below could not come across the facts and circumstances on the basis of which, the applicants, who are named in the FIR but were exculpated by the Investigating Officer. It is thus urged that in view of above, the Court below ought to have deferred the hearing of application under Section 319 Cr.P.C. filed by first informant-opposite party-4 and should have decided the same only after the depositions of the Investigating Officer was recorded. As such, Court below has pre-empted the disposal of the application under Section 319 Cr.P.C.
16. Learned counsel for applicants then invited the attention of Court to the statement/second statement of the first informant/mother of the prosecutrix i.e. PW-1 Smt. Preeti and also the statements of prosecutrix recorded under Sections 161 and 164 Cr.P.C. Having done so, the learned counsel for applicants drew a parallel with the aforesaid statements and on basis thereof, he vehemently urged that since nothing different has emerged in the depositions of aforementioned witnesses before Court below then what was stated by them in their statements under Sections 161/164 Cr.P.C., therefore, no new material had emerged before Court below to take a different view then what was taken by the Investigating Officer. On the above premise, it is thus urged that the order impugned is ex-facie illegal. Learned counsel for applicants thus concludes that the order impugned is liable to be quashed by this Court.
17. Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed the present application. He submits that order impugned in present application is perfectly just and legal and therefore, not liable to be interfered with by this Court. Court below has passed the order impugned upon due appreciation of the material on record. While undertaking this exercise, Court below has returned a clear and cogent findings that since as per the depositions of PW-1 and PW-2, the complicity of present applicants, who are prospective accused, is prima-facie apparent in the crime in question, therefore, they have been rightly summoned by Court below to face trial. The prosecutrix is a young girl aged about 17 years as per the ossification report, copy of which is on record at page 69 of the paper book. Furthermore, the prosecutrix in her deposition before Court below has made clear and specific allegations against present applicants as well as charge sheeted accused regarding the crime in question. On the above conspectus, the learned A.G.A. would submit that no interference is warranted by this Court in present application under Section 482 Cr.P.C.
18. Having heard the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the primary issue, which arises for determination in present application is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C.? As a corollary to above, Court will also have to consider;- Whether the order impugned is within the established parameters or not?
19. 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). Amrutbhai Shambhubhai Patel Vs. Suman Bhai Kantibhai Patel and Others, (2017) 4 SCC 177,
(vi) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vii) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(viii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(ix) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(x) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(xi) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xii) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xiii) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xiv) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xv) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17 (xvi) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xvi) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xviii) Saeeda Khatoon Arshi vs. State of Uttar Pradesh and Another, (2020) 2 SCC 323, (xix). Ajay Kumar @ Bittu and Another Vs. State of Uttarakhand and Another, (2021) 4 SCC 301 (xx) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xxi) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xxii) 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. (xxiii). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxiv). Naveen Vs. State of Haryana and Others, (2022) 10 SCC 537 (xxv). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (Five Judges Bench), Paragraphs 7, 37, 38 and 41.
(xxvi). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxvii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxviii). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxix) Yashodhan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxx) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxxi). Aarif and Others Vs. State of Rajasthan and Another, 2023 SCC OnLine SC 1375 (xxxii). Gurdev Singh Bhalla Vs. State of Punjab and Others, (2024) 3 SCC 172 (xxxiii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174 (xxxiv). Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730.
20. With the aid of above, the Court now proceeds to examine the veracity of impugned order dated 17.01.2024 passed by Additional Sessions Judge/Special Judge (POCSO Act), Budaun in Session Trial No. 654 of 2022 (State Vs. Rama and others) under Sections 363, 366A, 376(3), 120-B IPC and under Sections 16/17 POCSO Act, Police Station-Moosajhag District-Budaun, whereby the application dated 25.10.2023, under Section 319 Cr.P.C. filed by the first informant-opposite party-4 has been allowed.
21. Before proceeding to do so, it must be noticed that following issues stand settled as per judgements of the Supreme Court mentioned herein above and, therefore, they are not required to be dealt with.
22. 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).
23. 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).
24. 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).
25. 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).
26. 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 has 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).
27. 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).
28. 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).
29. The power under Section 319 Cr.P.C. is an extraordinary discretionary power, which should be exercised sparingly, vide S Mohammad Ishpahani (Supra).
30. 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).
31. 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).
32. 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.
33. 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).
34. 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).
35. 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.
36. 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.
37. 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.
38. 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).
39. 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.
40. Having noted the settled position, the Court is now required to consider whether on the basis of depositions of PW-1 Smt. Preeti, first informant/mother of the prosecutrix and PW-2, the prosecutrix 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."
41. Before proceeding to examine and evaluate the depositions of PW-1 Smt. Preeti, first informant/mother of the prosecutrix and PW-2, the prosecutrix before Court below and the other material collected by the Investigating Officer during 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.
42. The Bench has observed that a prospective accused can be summoned on the basis of the statement-in-chief/examination-in-chief of the prosecution witnesses i.e. PW-1 and PW-2 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 applicants herein 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 prosecution witnesses i.e. PW-1 and PW-2.
43. 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.
44. At this stage, it could be useful to reproduce paragraphs 92, 96, 105 and 106 of the Five Judges Bench judgment of Supreme Court in Hardeep Singh (Supra);-
"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two- Judge Bench of this Court in Vikas v. State of Rajasthan, 2013 (11) SCALE 23, held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.
96. In Rajendra Singh (Supra), the Court observed: (SCC p. 388, para 16) "16. Be it noted, the court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. In other words, from the evidence it need only appear to it that someone else has committed an offence, to exercise jurisdiction under Section 319 of the Code. Even then, it has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression "appears" indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed under Section 319 of the Code or not."
105. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
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."
45. PW-1 Smt. Preeti, in her statement under Section 161 Cr.P.C., copy of which is on record at page 30 of the paper book, has not stated anything substantial against applicants Sudhir @ Gabbar and Ragini. Thereafter, in her second statement under Section 161 Cr.P.C. also this witness has not stated anything substantial against applicants. In her deposition before Court below, this witness has, however, implicated the present applicants in the crime in question by assigning specific role to the present applicants. This witness, in her deposition before Court below, has clearly stated as to how the prosecutrix was taken away by them. As such, as per the statement of PW-1, prima-facie the complicity of present applicants is established in the crime in question.
46. PW-2, the prosecutrix in her statement under Section 161 Cr.P.C., which is on record at page 45 of the paper book and also in her statement under Section 164 Cr.P.C., which is on record at page 50 of the paper book, has clearly implicated the present applicants in the crime in question by assigning specific role to the present applicants. In her deposition before Court below as PW-2, the prosecutrix has rejoined her previous statement and in spite of cross examination by the charge sheeted accused, nothing adverse could be culled out from her statement so as to discredit her testimony.
47. It is thus apparent that the complicity of the prospective accused in the crime in question has clearly emerged in the depositions of PW-1 and PW-2. The veracity of the depositions of PW-1 and PW2 cannot be examined by this Court at this stage. The order impugned has to be examined as per the parameters laid down by the Five Judges Bench of the Apex Court in Hardeep Singh (Supra). Since the learned counsel for applicants in his submissions before this Court could not dislodge the order impugned on the ground that the same is not in confirmity with the ratio laid down by the Apex Court in aforementioned judgment, this Court does not find any good ground to entertain the present application.
48. As a result, the present application fails and is liable to be dismissed.
49. It is, accordingly, dismissed.
Order Date :- 30.9.2024 YK