Allahabad High Court
Okansh Kumar Singh vs State Of U.P. Thru. Prin. Secy. Home, ... on 3 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:51247 AFR Reserved On :- 05.05.2023 Delivered On :- 03.08.2023 Court No. - 28 Case :- CRIMINAL APPEAL No. - 1129 of 2023 Appellant :- Okansh Kumar Singh Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another Counsel for Appellant :- Umesh Chandra Tripathi,Chandra Bhushan Pandey,Shambhunath Mishra Counsel for Respondent :- G.A.,Chandan Srivastava,Yogesh Somvanshi Hon'ble Shree Prakash Singh,J.
1. Heard Sri Chandra Bhushan Pandey, Advocate assisted by Sri Shambhu Nath Mishra, learned counsel for the appellant, Sri Aniruddh Kumar Singh, learned AGA for the State and Sri Chandan Srivastava, learned counsel for opposite party no. 2.
2. By means of the instant appeal, the appellant has assailed the summoning order dated 04.10.2019 and the order of bailable warrant dated 15.11.2019, passed by the Court of Special Judge (SC/ST Act), Barabanki.
3. Brief facts of the case are that the informant lodged a First Information Report against the present appellant and other accused persons on 27.07.2017, alleging therein, the incident dated 16.05.2017, under Sections 376D, 342, 506 of IPC and 3(2)(v) of the SC/ST (P.A.) Act, which was registered as Case Crime No. 224 of 2017, at P.S. Jaidpur, District Barabanki. After lodging the First Information Report, the Investigating Officer recorded the statement of the complainant/prosecutrix on 16.08.2017, wherein, the prosecutrix stated that the appellant along with another co-accused, namely, Anjani Verma committed rape upon her. The medical examination of the complainant/prosecutrix was also got done in District Women Hospital, Barabanki, on 17.08.2017 and as per the medical examination report, the evidence of rape was found. Thereafter, on 29.08.2017, the statement of the prosecutrix under section 164 Cr.P.C. was also recorded, before the learned Trial Court, in which the statement given under Section 161 Cr.P.C., was reiterated and further, in her subsequent statement (Majeed Bayan) dated 08.12.2017, the prosecutrix stated that she has been used as a tool by Digvijay Verma as she was asked to lodge a false and fabricated case so as to mount pressure over the appellant, who is the witness in the Case Crime No. 456 of 2017. Further plea is that the appellant was on duty as Lecturer of Physics in an aided Government Inter-College, namely, Shri Deshraj Narang Dayanand Inter College, Govind Nagar, Walterganj, District Basti and he was present over there, in between 7:00 A.M. to 12:30 P.M. on 15th and 16th of May, 2017, i.e., the date, when the incident is said to have taken place.
4. Contention of the learned counsel for the appellant is that the summoning order dated 04.10.2019 and the bailable warrant dated 15.11.2019, are not sustainable in the eyes of law as the learned Court below has failed to appreciate the evidences, which were available on record. He submits that after lodging of the First Information Report, the Investigating Officer, when found no cogent piece of evidence to substantiate the incident, submitted the Final Report and after delay of 20 months, the protest application of the appellant has been accepted.
5. Further submission is that as per the medical examination of the prosecutrix, there is no evidence of rape and that also does not support the version of the prosecutrix. He added that no proper reasons have been recorded while accepting the protest application and the same is based on conjecture and surmises.
6. Adding his arguments, he submits that the learned trial Court has failed to appreciate the facts and evidences that the appellant was working as Lecturer in a Government-Aided College, namely, Shri Deshraj Narang Dayanand Inter College, Govind Nagar, Walterganj, District Basti and on the date and time of the said incident, he was on duty and furthermore, there is a clear cut evidence emerging out from the statement of the prosecutrix, that the First Information Report was lodged by the prosecutrix as a counter blast to the First Information Report lodged by one Akash Kumar Verma, the informant in the FIR No. 456 of 2017, against Digvijay Verma and Himanshu Verma under Sections 376, 516, 506 of IPC and the prosecutrix was used as an instrument by Digvijay Verma to pressurize the appellant, not to stick on the statement as witness and to turn hostile in Case Crime No. 456 of 2017.
7. Further contention is that the prosecution story as narrated by the prosecutrix is highly improbable and doubtful as she stated herself to be suffering from Jaundice and stated to be travelled, without any attendant from Lucknow to Barabanki, in early hours of morning at 5:00 A.M. He submits that the prosecutrix has changed the story at every stage for filling up the lacuna of prosecution and if the statement of the prosecutrix are gone through, it shows that only the statement under Section 164 Cr.P.C. remains in existence, though the same is also in contradiction to the statement under Section 161 as well as the subsequent statement which was recorded as a 'Majeed Bayan' by the Police.
8. It has also been argued that the learned trial Court has erroneously taken cognizance and summoned the accused under Section 3(2)(v) of the SC/ST Act, though there is no independent witness to support the story that the appellant hurled any abuse, naming the caste of the prosecutrix, in public view.
9. In support of his contention, the learned counsel appearing for the appellant has placed reliance on a case reported in (2013) 9 SCC 293, Prashant Bharti Vs. State (NCT of Delhi) and has referred paragraphs 24 and 25 of the judgement, which reads as under :-
"24. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge sheet dated 28.6.2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 of the Cr.P.C.
25. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar's case (supra) stand - satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-appellant, in exercise of the inherent powers vested with it under Section 482 of the Cr.P.C. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Section 328, 354 and376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed"
10. Referring the aforesaid judgement, he submits that in the abovesaid case the charge-sheet under section 164 of Cr.P.C.was filed, only on the basis of the statement of prosecutrix and there were no proof to substantiate the charges and therefore the Hon. Apex Court while categorically giving it's findings, quashed the criminal proceeding and also held that while invoking the inherent powers vested under Section 482 Cr.P.C., such issues can be dealt with..
11. He has further placed reliance on a judgement reported in (2006) 7 SCC 296, Popular Muthiah Vs. State and has referred paragraphs 29 and 30 of the above said judgement. Paragraphs 29 and 30 are quoted hereinunder:-
"29. The High Court while, thus, exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the High Court can be exercised, it is trite, both in relation to substantive as also procedural matters.
30. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammeled by procedural restrictions in that
(i) power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.
(iii) It is, however, beyond any doubt that the power under Section 482of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent where the power of the court is not treated as exhaustive, or there is a specific provision in the Code ; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists."
12. While referring the aforesaid, he submits that it has categorically been held by the Apex Court that the High Courts while exercising its revisional or appellate powers, may exercise its inherent powers, both in relation to substantive and also procedural matters and even this can be stretched to be exercised Suo Moto, in the interest of justice.
13. Concluding his arguments, he submits that in fact, the trial Court has not only skipped material facts and evidences to discuss while passing the summoning order but has also ignored the settled proposition of law and therefore it is submitted that the proceeding of Sessions Trial No. 346 of 2019 arising out of Case Crime No. 0224 of 2017, may be quashed.
14. On the other hand, learned counsel appearing for the State has vehemently opposed the contentions aforesaid and submits that the First Information Report has been lodged against the present appellant under Sections 376 D, 342, 506 of IPC and Section 3(2)(v) of the SC/ST Act and those are heinous in nature and badly impacts the society. He added that initially, after investigation, the Final Report was submitted but after filing of the protest application, the learned trial Court while recording detailed discussions and reasoning thereof, has passed the order on 04.10.2019. Further, from the statement of the prosecutrix, recorded under Section 164 CrPC, it is quite clear that the rape has been committed upon the complainant/prosecutrix by the present appellant and another co-accused and the medical examination report also supports the same..
15. Next contention is that, so far as the submission of the learned counsel for the appellant, regarding the 'plea of alibi' is concerned, that is not considerable at this stage, as plea of alibi cannot be gone into at this stage as this would amount to a mini trial, which is not permissible under the law. In support of his contention, he has placed reliance on a judgement reported in (2007) 7 SCC 378, Rajendra Singh Vs. State of U.P. and Another and has referred paragraph 11 of the judgement, which is quoted hereinunder:-
"11. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 Cr.P.C. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed under Section 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh and it was held as under in para 9 of the report :
"9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."
Therefore the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by the learned Sessions Judge on 26.5.2005 as infructuous."
16. While placing reliance on abovesaid Judgment, he submits that the Hon. Apex Court has held that no finding of 'plea of alibi' can be recorded by High Court in petition under Section 482 Cr.P.C. and the burden to prove the 'plea of alibi' is upon the accused, which he could do by way of adducing evidence in the trial proceedings and not by filing some affidavits or statement purported to have been recorded under Section 161 of Cr.P.C.
17. Vehemently opposing, another contention of the learned counsel for the appellant, the learned AGA has submitted that it has been held in the catena of judgements of the Hon'ble Supreme Court that the High Courts, while invoking the jurisdiction under Section 482 Cr.P.C., cannot conduct 'mini trial', while appreciating the evidences and the same can be done in trial proceedings. He added that so far as the plea taken by the appellant that there is contradiction in the statements of the prosecutrix under Sections 161 and 164 of Cr.P.C. and in the supplementary statement given before the Police authority are concerned, that cannot be examined or testified in this appeal.
18. Again, in support of his contention, he has placed reliance on a judgement rendered in Criminal Appeal No. 840 of 2022, State of U.P. and anothers Vs. Akhil Sharda and others and has referred paragraph 7 of the aforesaid judgement. Paragraph 7 of the judgement is quoted hereinunder:-
"7. Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered."
19. He submits that in the abovesaid Judgment, the Apex Court in so many words, has held that virtually conducting mini trial is not permissible.
20. Further placing reliance on a judgement, reported in (2019) 6 SCC 107 Mohd. Allauddin Khan Vs. State of Bihar and Others, has referred paragraph 14. Paragraph 14 of the judgement is quoted hereinunder:-
"14. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
21. Referring the aforesaid, he submits that the Apex Court is of the view that the High Court has no jurisdiction to examine the evidences in proceedings under Section 482 of Cr.P.C., because of contradiction and inconsistency in the statement of the witnesses, which essentially is an issue of appreciation of evidences.
22. Again controverting the contention of the learned counsel for the appellant regarding the legal question that the statement of prosecutrix under Section 164 is not sufficient to substantiate charges so as to lead the case to its logical end for convicting the accused, it has been submitted that a statement made under Section 164 Cr.P.C., disclosing the offence of rape, would be sufficient to frame charges under Section 376 of IPC and to proceed with the trial and the fact that there are certain contradiction in the statements of the prosecutrix under Section 161 and 164 of Cr.P.C., would have no bearing at all.
23. In support of his contentions, the State counsel has placed reliance on a judgement rendered in Special Appeal No. 9552 of 2021 Hazrat Deen Vs. The State of Uttar Pradesh and Anr and has referred the following paragraphs :-
"The FIR is the initial document. In her statement given by the prosecutrix under Section 164 of the Code of Criminal Procedure (CrPC) after the prosecutrix attained majority, she categorically made statements which tantamount to offence under Section 376 of the IPC. Discrepancies between the FIR and any subsequent statement under Section 164 of the CrPC may be a defence. However, the discrepancies cannot be a ground for discharge without initiation of trial."
24. Referring the aforesaid, he submits that it has very clearly been held by the Apex Court that in case of any contradiction between the version of First Information Report and subsequent statement under Section 164 of Cr.P.C., it can be taken as defence during trial but cannot be a ground for discharge.
25. He has also referred a case reported in (2006) 10 SCC 534, State of Tamil Nadu Vs. Ravi @ Nehru and has referred paragraphs 20 which is quoted hereinunder:-
"The evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offender is entitled to great weight, absence of corroboration notwithstanding.
26. Referring the aforesaid, he added that the Hon'ble Apex Court has categorically held that the statement of the injured witness is at par with the statement of the victim of sexual assault and in all senses, the prosecutrix of sexual assault is the best witness and that is of great weight.
27. Further contention of the learned counsel for the appellant is that since there is specific allegation of committing rape by the present appellant with the prosecutrix and that is intact and therefore, the trial cannot be interferred at this stage, as the same would be in contravention to the ratio of the judgement of the Hon'ble Apex Court which are rendered, time and again. Therefore, the submission is that the present appellant is not entitled for any relief.
28. Considering the submissions of the learned counsel for the parties and after perusal of the material placed on record, it emerges that initially the First Information Report was lodged against the present appellant, wherein, the Investigating Officer submitted Final Report and thereafter protest application was filed, which was entertained by the trial Court and after thoroughly considering the statement under Section 161 and 164 of Cr.P.C., of the prosecutrix and the other evidences on record, the order dated 04.10.2019 has been passed, whereby, the appellant has been summoned.
29. The first plea is taken by the appellant, regarding the inconsistency in the statements of the prosecutrix under Sections 161 and 164 of Cr.P.C. This Court finds that there might be certain contradiction in the statement of the victim/prosecutrix, but, whether the same can be examined at this stage, is the first and foremost question. The Hon'ble Apex Court in catena of judgements has held that there can be discrepancies in the statements of an accused under Sections 161 and 164 of Cr.P.C. but that cannot be examined/appreciated except apart the trial proceedings as the same would amount to mini trial.
30. Further, this Court is of considered opinion that the statement of the prosecutrix under Section 164 Cr.P.C. is having at par evidenciary value as the injured witness in a criminal case. Therefore, the first contention of the learned counsel for the appellant is against the settled proposition of law and thus, have no force.
31. Considering the second set of argument of learned counsel for the appellant and the reply of the counsel for the other side including the State, that the present appellant was working as a Lecturer in a College on 15th and 16th of May, 2017, in between 7:00 A.M. to 12:30 P.M., the issue with respect to his non-presence, while saying that he was present at the College, namely, Sri Deshraj Narang Dayanand Inter College, Govind Nagar, Walterganj, District Basti, is an issue of 'plea of alibi' which has already been decided by the Hon'ble Apex Court in catena of Judgments, wherein, it has been held that the 'plea of alibi' can be examined in the trial proceedings by the trial Court, as the same requires appreciation of evidences and factual contradictions. In the present matter, it has been said that there is evidence that the appellant was in the College at Basti at the time of the alleged incident, but the question that whether the same can be appreciated at this stage, is answered in negative, as per the settled law.
32. So far as the contention of learned counsel for the appellant is with respect to the question that the statement of the prosecutrix of a rape case under Section 164 Cr.P.C. is not sufficient to lead the conviction of an accused is concerned, the same has also been answered in plethora of judgements of the Apex Court, wherein, it has been held that only statement of prosecutrix under Section 164, is sufficient to lead the conviction.
33. In view of the above submissions and discussions it is apparent that there is no merit in the instant appeal. Resultantly, the appeal is hereby dismissed.
34. It is further made clear that any observation made hereinabove would not affect the merit of the trial.
Order Date :- 03.08.2023 Anurag