Allahabad High Court
Rohit Kumar Yadav And 3 Others vs State Of U.P. And Another on 1 August, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 15.07.2022 Delivered on 01.08.2022 Court No. - 80 Case :- APPLICATION U/S 482 No. - 5669 of 2021 Applicant :- Rohit Kumar Yadav And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajiv Lochan Shukla,Kuldip Singh Yadav Counsel for Opposite Party :- G.A.,Jitendra Kumar Hon'ble Rajeev Misra,J.
1. This application under Section 482 Cr.P.C. has been filed challenging order dated 02.02.2021, passed by Additional Sessions Judge/Special Judge, POCSO & Rape Cases, Court No. 8, Kaushambi, in Case No. 83 of 2021, (State Vs. Atul Yadav and Others), arising out of Case Crime No.0120 of 2018, under Sections- 376 (D), 504, 506, 376 (2) (i) I.P.C. and Sections- 3/4 POCSO Act, Police Station- Charwa, District- Kaushambi, whereby application dated 27.01.2020 filed by first informant, opposite party-2, Rakesh Singh Yadav under Section 319 Cr.P.C. has been allowed. Resultantly, applicant-1, Rohit Kumar Yadav has been summoned in aforementioned criminal case under Sections 363, 376 (D), 504, 506, 376 (3) I.P.C. and Sections 16/17 POCSO Act, whereas applicants 2 to 4 namely Tirra @ Atik, Nanake and Dhiru have been summoned under Sections 363, 376 (D), 504, 506 I.P.C. and Sections 16/17 POCSO Act.
2. I have heard Mr. Rajiv Lochan Shukla, the learned counsel for applicants, the learned A.G.A. for State and Mr. Jitendra Kumar, the learned counsel for first informant/opposite party-2.
3. Perused the Record.
4. It transpires from record that in respect of an incident, which is alleged to have occurred on 26.04.2018 at around 9.00 PM., a delayed F.I.R. dated 27.04.2018 was lodged by first informant/opposite party-2, Rakesh Singh and was registered as Case Crime No.0120 of 2018, under Sections- 376 (D), 504, 506, 376 (2) (i) I.P.C. and Sections- 3/4 POCSO Act, Police Station- Charwa, District- Kaushambi. In the aforesaid F.I.R., two persons, namely, Rohit Kumar Yadav and Atul Yadav have been nominated as named accused.
5. In brief, as per the prosecution story, as unfolded in F.I.R., it is alleged that on 26.04.2018 at around 9.00 PM., Sarita (Daughter of Dhara Singh younger brother of first informant) along with her grand mother went out of their home to attend the call of nature. As the mother of first informant sat down to ease herself, applicant-1 Rohit Kumar Yadav and Atul Yadav dragged the niece of first informant namely Sarita in a partially constructed house and thereafter, serially i.e. one by one forcibly dislodged her modesty by committing rape upon her. The F.I.R. further states that after having committed the aforesaid illegal act named accused threatened the prosecutrix not to disclose anyone about the said incident. Having been freed from the clutches of the accused, the niece of the first informant is said to have narrated the entire event to her grand mother.
6. After registration of above-mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He, accordingly, examined the first informant/opposite party-2, Computer Operator, scribe of F.I.R., Female Police Constable and others as well as the prosecutrix under Section 161 Cr.P.C. Prosecutrix in her aforesaid statement before Investigating Officer has supported the prosecution story as unfolded in the F.I.R. However, she has implicated only the named accused i.e. Rohit Kumar Yadav and Atul Yadav in the crime in question. The names of applicants 2, 3 and 4 are conspicuous by their absence in aforesaid statement of proesecutrix.
7. Prosecutrix was also medically examined. The prosecutrix in her statement before the Doctor has also supported the prosecution story as unfolded in the F.I.R. Here again the prosecutrix remained consistent and nominated the named accused Rohit Kumar Yadav and Atul Yadav in the crime in question i.e. rape upon her. She, however, improved upon the manner of occurrence and stated that five persons kidnapped her and thereafter her modesty was forcibly dislodged by the two named accused. The names of other three accused were not disclosed by her. However, the Doctor, who examined the prosecutrix, did not find any sign on her body establishing the commission of sexual violence. The Doctor further found that her hymen was old torn. Certain samples were, however, collected from her body for pathological examination. The supplementary Medico Legal Report of the prosecutrix shows negative result. As per the radio-logical-report, age of prosecutrix was said to be 16 to 17 years.
8. Subsequent to above, the statement of prosecutrix was recorded under Section 164 Cr.P.C. The prosecutrix in her aforesaid statement has reiterated her earlier statement as recorded under Section 161 Cr.P.C. as well as the statement given by her before the Doctor with regard to the actual commission of crime upon her. She, however, improved upon the manner of occurrence. She now disclosed the names of two of the other three accused namely Tirra @ Atik and Nanke. They were said to be residents of the same village, whereas one accused was described as Shiv Babu ka Sala, who was said to be resident of another village. Upto this stage, the prosecutrix has nominated only two of the named accused for dislodging her modesty i.e. commission of rape upon her.
9. During course of investigation, Investigating Officer found that complicity of one Surendra Yadav in the crime in question has also come to surface. Investigating Officer, therefore, recorded the statements of Atul Yadav and Surendra Yadav under Section 161 Cr.P.C. Thereafter, the statement of Surendra Yadav was recorded under Section 164 Cr.P.C., wherein he admitted his relationship with the prosecutrix. He further admitted that on the fateful day, he was in physical relationship with the prosecutrix with her consent.
10. Investigating Officer upon completion of investigation of aforementioned case crime number, ultimately submitted the charge-sheet dated 28.05.2018, whereby one of the named accused namely Atul Yadav and not named accused Surendra Yadav have been charge-sheeted. The other named accused Rohit Kumar Yadav was exculpated.
11. After submission of aforesaid charge-sheet dated 28.05.2018, cognizance was taken upon same by court concerned. Resultantly, Criminal Case No. 83 of 2021 (State Vs. Atul Yadav and others) P.S.- Charwa, District-Kaushambi, came to be registered in the Court of Additional Sessions Judge/Special Judge (POCSO and Rape Cases), Court no.8, Kaushambi.
12. Court below framed separate and distinct charges against charge-sheeted accused. They, however, denied the charges so framed and demanded trial. Resultantly, burden fell upon the prosecution to lead evidence to bring home the charges so framed. In discharge of aforesaid burden, prosecution adduced P.W.-1, Rakesh Singh, (First informant/opposite party-2), P.W.-2 Dr. Saumya Anand (the Doctor, who had examined the prosecutrix). P.W.-3 Sarita @ Divya (prosecutrix).
13. After the statements-in-chief of aforesaid witness were recorded, first informant/opposite party-2, Rakesh Singh filed an application dated 27.01.2020 under Section 319 Cr.P.C. praying therein that Rohit Kumar Yadav, Tirra @ Atik, Nanke and Dhiru be also summoned for trial as their complicity in the crime in question is established as per the statements-in-chief of aforesaid prosecution witnesses. This application was registered as paper-no. 44 Ka. No objection was filed by charge-sheeted accused to the aforesaid application filed by first informant/opposite party-2.
14. Court below upon evaluation of the material on record ultimately by means of order dated 02.02.2021 passed by Additional Sessions Judge/Special Judge, POCSO & Rape Cases, Court No. 8, Kaushambi, allowed the application under Section 319 Cr.P.C. Accordingly, applicants have now been summoned by court below to face trial in above-mentioned criminal case.
15. Aggrieved by above order dated 02.02.2021, applicants have now approached this court by means of present application under Section 482 Cr.P.C.
16. Mr. Rajiv Lochan Shukla, the learned counsel for applicants contends that order impugned dated 02.02.2021, passed by court below is manifestly illegal and without jurisdiction. It is next contended that applicant-1, Rohit Kumar Yadav is a named accused in F.I.R. dated 27.04.2018, whereas applicants-2, 3 and 4 i.e. Tirra @ Atik, Nanake and Dhiru are not named in F.I.R. During the course of investigation, complicity of applicants were not found to be established in the crime in question. Accordingly, applicant-1, Rohit Kumar Yadav, who is a named accused, was exculpated, whereas no charge-sheet was submitted against applicants 2, 3 and 4. In continuation of his challenge to the impugned order dated 02.02.2021, learned counsel for applicants contends that court below should have deferred the disposal of application under Section 319 Cr.P.C. filed by first informant/opposite party-2 till the statement of Investigating Officer, who had investigated above-mentioned case crime number, was not recorded. According to learned counsel for applicants, testimony of Investigating Officer would be relevant as he alone could place the facts and circumstances on the basis of which, applicant-1 was exculpated, whereas applicants 2, 3 and 4 were not charge-sheeted. It is, thus, urged that in the absence of testimony of Investigating Officer, the relevant material in concerned case crime number regarding above could not be placed before court below. As such serious prejudice has been caused to applicants, who have now been summoned, to face trial in above-mentioned criminal case simply on the basis of the testimonies of P.W.-1, Rakesh Singh, First informant/opposite party-2, P.W.-2 Dr. Saumya Anand, the Doctor, who has examined the prosecutrix. P.W.-3 Sarita @ Divya (prosecutrix). In the absence of testimony of Investigating Officer, the credibility of testimony of P.W.-1, P.W.-2 and P.W.-3 could not be examined. It is, thus, urged that court below has pre-empted the disposal of application under Section 319 Cr.P.C. filed by first informant/opposite party-2. Learned counsel for applicants also contends that no protest petition was filed by first informant/opposite party-2 to the charge sheet dated 28.05.2018. No explanation has been offered in the application under section 319 Cr.P.C. regarding aforesaid. It is, thus, contended that application under section 319 Cr.P.C. was filed on account of an ulterior motive only to harass the applicants. Moreover, no objection/grievance was raised by first informant/opposite party-2 against the Investigating Officer regarding the manner of investigation or a failure on the part of part of investigating Officer in not examining material witnesses either before the Magistrate or before any senior police officer. In the submission of learned counsel for applicants, testimonies of P.W.-1, Rakesh Singh, First informant/opposite party-2, P.W.-2 Dr. Saumya Anand, the Doctor, who had examined the prosecutrix. P.W.-3 Sarita @ Divya (prosecutrix) do not make out a cast iron case for summoning of applicants. No finding has been recorded by court below as to how the testimonies of P.W.-1, P.W.-2 and P.W.-3 satisfy the test laid down by the Constitution Bench in Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92. No exercise has been undertaken by court below to weigh the material that was gathered by Investigating Officer during the course of investigation and to find out whether any new material has emerged in the testimonies of P.W.-1, P.W.-2 and P.W.-3, which obviously the court below was required to undertake as per the mandate of Apex Court in Briijendra Singh and others Vs. State of Rajasthan, (2017) 7 SCC 706. According to learned counsel for applicants, the statement of one of the charge-sheeted accused namely Surendra Yadav was recorded under Section 164 Cr.P.C. also. The said statement is admissible in evidence. As per the aforesaid statement, it can be definitely gathered that the complicity of applicants is not established in the crime in question. To the contrary, it is the complicity of the charge-sheeted accused only, which is established in the crime in question. No attempt has been made by court below to consider the aforesaid aspect of the matter. As such, order impugned is vitiated. The change in the statements of prosecutrix regarding the manner of occurrence speaks of her inconsistency, which remains unexplained. As such, when the disposition of P.W.-3, the prosecutrix is examined in the light of her previous statements, same does not fall in the category of impeccable evidence. According to learned counsel for applicants, a person can be prosecuted on the basis of sole testimony of prosecutrix. However, in that eventuality, the testimony of the prosecutrix should be of impeccable character, which admittedly is not the case here. It is, thus, sought to be urged that court below has failed to exercise it's jurisdiction "diligently". Court below has summoned applicants in a "casual and cavalier manner" even when there is no "strong and cogent evidence" against applicants. No finding has been recorded by court below that something more-than complicity of applicants is established in the crime in question. On the aforesaid premise, it is, thus, urged that impugned order passed by court below cannot be sustained and therefore same is liable to be quashed by this Court.
17. Per contra, the learned A.G.A. has opposed this application. Learned A.G.A. contends that statement-in-chief of P.W.1- Rakesh Singh is alone relevant for deciding the application under Section 319 Cr.P.C. as he is a prosecution witness of fact. However, in present case, there are testimonies of P.W.-2 Dr. Saumya Anand, the Doctor, who has examined the prosecutrix, and P.W.-3 Sarita @ Divya (prosecutrix). Aforesaid witnesses have also been cross-examined. As such, their testimonies fall within the realm of legal evidence. Consequently, no illegality has been committed by court below in placing reliance upon same for deciding application under Section 319 Cr.P.C. According to learned A.G.A., as per the Constitution Bench judgement in Hardeep Singh (Supra) even the statement-in-chief of P.W.-1 is sufficient for deciding the application under Section 319 Cr.P.C. Police report submitted by Investigating Officer is not conclusive proof of innocence of applicants. No irregularity or illegality has been committed by court below, in passing the impugned order dated 02.02.2021. Even though applicants have not been charge-sheeted by Investigating Officer, same cannot be taken as a ground to urge that applicants cannot be subsequently summoned to face trial. Applicants will have adequate opportunity to prove their innocence before court below by adducing Investigating Officer also as a defence witness. No attempt has been made to draw a parallel between the statements of P.W.-1, P.W.-2 and P.W.-3 as recorded under Section 161 Cr.P.C. and their testimonies given before court below. Moreover, no ground has been raised in the affidavit filed in support of the application under Section 482 Cr.P.C. that nothing new has been stated by P.W.-1, Rakesh Singh (First informant/opposite party-2), P.W.-2 Dr. Saumya Anand (the Doctor, who had examined the prosecutrix), P.W.-3 Sarita @ Divya (prosecutrix) in their depositions before court below than what was stated by them in their statements under Sections 161/164 Cr.P.C. As such, nothing new has come on record on the basis of which, applicants could have been summoned. Moreover, the prosecutrix has remained consistent in so far as complicity of applicant-1, Rohit Kumar Yadav is concerned in the crime in question. Her deposition before court-below as well as her previous statements are categorical and devoid of any ambiguity against applicant-1, Rohit Kumar Yadav and does go to show much more than mere complicity of applicant-1. Impugned order passed by court below is in conformity with the principles laid down by Constitution Bench in Hardeep Singh (supra), wherein court has defined the manner in which jurisdiction under Section 319 Cr.P.C. is to be exercised. Court below has recorded cogent findings in support of it's conclusion. The findings so recorded cannot be clarified as illegal, perverse or erroneous. No jurisdictional error has been committed by court below either in passing the impugned order. On the aforesaid premise, it is, thus, urged by learned A.G.A. that no indulgence be granted by this Court in favour of applicants. Present application under Section 482 Cr.P.C. is, therefore, liable to be dismissed.
18. Having heard the learned counsel for applicants, the learned A.G.A. for State and upon perusal of record, this Court finds that the 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, 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 Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Constitution Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Constitution Bench)
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568
(iv) Jogendra yadav and Others Vs. State of Bihar and Another, (2015) 9 SCC 244
(v) Brijendra Singh and Others Vs. State of Rajasthan, (2017) 7 SCC 706
(vi) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226
(vii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393
(viii) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329
(ix) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342
(x) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556
(xi) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368
(xii) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638
(xiii) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806
(xiv) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805
(xv) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 (xvi) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 (xvii) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 (xviii) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 (xix) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741
20. 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).
21. Summoning of a non charge-sheeted accused in exercise of power under Section 319 Cr.P.C. cannot be done in a "casual and cavalier manner". Power under Section 319 Cr.P.C. is "an extraordinary discretionary power which should be exercised sparingly". Vide paragraphs- 34 and 36 of the judgement in S. Mohammed Ispahani (supra) and paragraph- 105 of the Constitution Bench judgement in Hardeep Singh (supra).
22. The nature of evidence required for summoning a non charge-sheeted accused to face trial, has been summarized in paragraph-106 of the Constitution Bench judgement in Hardeep Singh (supra), wherein Constitution Bench has held that a prospective accused can be summoned on the basis of Statement-in-Chief of a solitary prosecution witness of fact. The only requirement is that such statement discloses 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 un-rebutted would lead to conviction. The second test laid down therein is that such person could be tried with other accused. In paragraph- 36 of the judgement in S. Mohammed Ispahani (supra), Court held that a non charge sheeted accused can be summoned only on the basis of "strong and cogent evidence".
23. The evidence of an injured eye witness has greater evidenciary value and unless compelling reasons exist, their statements are not to be discarded lightly. Vide paragraph 37 of judgement in Manjeet Singh (Supra).
24. The trial Court is competent to exercise its power under section 319 Cr.P.C. on the basis of statements recorded before it in examination-in-chief. However, in a case, where plethora of evidence is collected by investigating Officer during course of investigation, which suggests otherwise, the trial Court is at least duty bound to look into the same, while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their complicity has come on record. The Court, thus, has to find out as to whether something new has been stated in the deposition of witnesses than what was stated in their statements under section 161 Cr.P.C (vide paragraph 15 of judgement in Brijendra Singhs's Case (Supra).
25. 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).
26. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh's Case requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameter regarding the exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
27 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.
28. Having noted the settled position, the Court is now required to consider whether on the basis of deposition of P.W.-1, Rakesh Singh, first informant/opposite party, P.W.-2, Doctor Saumya Anand and P.W.-3 Sarita @ Divya (prosecutrix), applicants could have been summoned by court below. As an ancillary issue, Court will also have to consider whether court below has exercised its jurisdiction "diligently" or as termed by Apex Court in a " casual and cavalier manner".
29. Record reveals that applicant-1, Rohit Kumar Yadav is a named accused in the F.I.R. dated 27.04.2018 ,whereas applicants 2, 3 and 4 are not named in the F.I.R.. After registration of aforesaid F.I.R. Investigating Officer in order to unearth the truth examined various witnesses under Section 161 Cr.P.C. including P.W.-1, Rakesh Singh, first informant/opposite party-2 and P.W.-3 Sarita @ Divya (Prosecutrix). During course of investigation, complicity of one Surendra Yadav also came to surface. Accordingly, Investigating Officer recorded the statements of Atul Yadav and Surendra Yadav under Section 161 Cr.P.C. Subsequently, the statement of Surendra Yadav was also recorded under Section 164 Cr.P.C., wherein he admitted his relationship with the prosecutrix. The statement of the prosecutrix was recorded before the Doctor and thereafter, she was medically examined. The medical evidence does not support the prosecution story to the effect that modesty of prosecutrix was dislodged by committing rape upon her. On the basis of above and other material collected by Investigating Officer during course of investigation, he exculpated applicant-1, Rohit Kumar Yadav. The complicity of applicants 2, 3 and 4 was also not found to be established in the crime in question in the opinion of Investigating Officer.
30. In the aforesaid back ground, the Court now has to examine the testimonies of P.W.-1, Rakesh Singh (first informant/opposite party-2), P.W.-2, Dr. Saumya Anand (the Doctor, who had examined the prosecutirx), P.W.-3, Sarita @ Divya (the prosecutrix). This Court will have to draw a parallel with the statements-in-chief/examination-in-chief of witnesses of fact namely P.W.-1, Rakesh Singh, first informant/opposite party, P.W.-2, Doctor Saumya Anand and P.W.-3 Sarita @ Divya (prosecutrix) with their previous statements and then decide whether something more than mere complicity of applicants is established in the crime in question.
31. P.W.-1, Rakesh Singh is the first informant. It is this witness, who had lodged the F.I.R., giving rise to present criminal proceedings. It is an undisputed fact that first informant/opposite party-2, i.e. P.W.-1 is not an eye witness of the occurrence. The F.I.R. was lodged by him on the basis of information disclosed by his mother. As such, his testimony is based upon hearsay. This witness in his statement before Investigating Officer under Section 161 Cr.P.C. has supported the F.I.R.m wherein it is alleged that two persons namely Rohit Kumar Yadav and Atul Yadav have committed the alleged crime. This witness has departed from his previous statement in his deposition before court below. As per the deposition of this witness before court below, the crime in question was committed by five persons namely, Rohit Kumar Yadav, Atul Yadav, Tirra @ Atik, Nanke and Dhiru. When deposition of P.W.-1, is critically examined in the light of his previous statement, the Court finds that this witness has remained consistent with regard to the complicity of applicant-1, Rohit Kumar Yadav in the crime in question. However, except for the bald statement that five persons i.e. named accused along with applicants-2, 3 and 4, kidnapped the prosecutrix, there is nothing more to implicate applicants 2, 3 and 4 in the crime in question. Thus, as per the testimony of P.W.-1, Rakesh Singh, nothing more than mere complicity of applicants-2, 3 and 4 is established in the crime in question. The deposition of P.W.-1 is completely silent with regard to the manner in which the prosecutrix was kidnapped and what role was played by applicants 2, 3 and 4 in the kidnapping of prosecutrix. Thus from the aforesaid, it can be safely concluded that as per the statement of P.W.-1, Rakesh Singh, something more than the complicity of applicant-1, Rohit Kumar Yadav is established in the crime in question, whereas nothing more than mere complicity of applicants 2, 3 and 4 is established in the crime in question. As such, the summoning of applicant-1, Rohit Kumar Yadav, under Section 319 Cr.P.C. on the basis of deposition of P.W.-1 before court blow, alone cannot be faulted with.
32. P.W.-2, Dr. Saumya Anand had medically examined the prosecutrix and had also recorded her statement. This witness is, thus, not an eye witness of the occurrence. She can only prove the Medico Legal Report of the prosecutrix and the statement of the prosecutrix given before her. Therefore, her statement before court below does not have a decisive bearing in deciding the actual role of applicants in the crime in question.
33. P.W.-3, Srita @ Divya is the prosecutrix. This witness was previously examined under Section 161 Cr.P.C. followed by her statement before the Doctor and ultimately, her statement under Section 164 Cr.P.C. was recorded. The prosecutrix in her statement under Section 161 Cr.P.C. has implicated only the two named accused namely Rohit Kumar Yadav and Atul Yadav in the crime in question. However, the prosecutrix in her statement before the Doctor has improved upon her earlier statement under Section 161 Cr.P.C. by stating that she was kidnapped by five persons and thereafter, her modesty was dislodged by the two named accused. The names of the other three accused was not disclosed. Subsequent to above, the statement of prosecutrix was recorded under Section 164 Cr.P.C. wherein the prosecutrix has stated that five persons kidnapped her and thereafter, her modesty was dislodged by two of the named accused namely Rohit Kumar Yadav and Atul Yadav. She has further disclosed the names of two of the other three accused as Tirra @ Atik and Nanke, who are said to be residents of the same village, whereas the third accused was described as Shiv Babu Ka Sala. Ultimately, in her statement-in-chief before court below, she has mentioned the names of all the five accused involved in the crime in question.
34. Apart from above, there is another material piece of evidence on record and that is the statement of Surendra Yadav under Section 164 Cr.P.C. wherein Surendra Yadav has admitted that it was he, who had entered into physical relationship with the prosecutrix at the time and place of occurrence and no one else. Atul Kumar Yadav was said to be standing outside the house.
35. It is thus evident that the prosecutrix has remained consistent and categorical with regard to complicity of applicant-1, Rohit Kumar Yadav in the crime in question. Though, one of the charge-sheeted accused namely Surendra Yadav in his statement under Section 164 Cr.P.C. has implicated only Atul Yadav in the crime in question but merely on the basis of confessional statement of accused Surendra Yadav, the testimony of P.W.-3 i.e. prosecutrix cannot be discarded at this stage. The above factual position clearly creates a conundrum, which can be resolved effectively only during the course of trial. The fact that there is equally weighing material/evidence against applicant-1, Rohit Kumar Yadav itself creates a triable issue inasmuch as something more than complicity of applicant -1, Rohit Kumar Yadav is established in the crime in question. There is nothing on record discrediting the prosecutrix for falsely implicating applicant-1 or to suggest that applicant-1, has been implicated in the crime in question on account of malafide on the part of prosecutrix. It cannot be, thus, inferred that implication of applicant-1, Rohit Kumar Yadav, in the crime in question is accentuated by malafides on the part of prosecutrix as there are no material particulars in support of the same.
36. This leads to the remaining issue as to whether on the material on record, which was collected by Investigating Officer during the course of investigation and the testimony of P.W.-1 recorded before court below, something more than mere complicity of applicants 2, 3 and 4 is established in the crime in question. The change in the description of the manner of occurrence regarding kidnapping of prosecutrix is explicit from the inconsistency in the statements of the prosecutrix under Section 161 Cr.P.C., before the Doctor and ultimately under Section 164 Cr.P.C. Except for the improvement made by prosecutrix with regard to the numbers of persons involved in her kidnapping, the prosecutrix has not spelled out in categorical terms as to what role was played by each of the named accused in kidnapping her. The material particulars in respect of of kidnapping or removal of her clothes for dislodging her modesty, have not been stated since the very beginning i.e in the statement under Section 161 Cr.PC. till her statement before court below. Thus what has emerged against applicants 2, 3 and 4 is mere complicity and nothing more. The statement of the prosecutrix before court below does not disclose something more than mere complicity of applicants 2, 3 and 4 in the crime in question.
37. It is, thus, evident that the first informant/opposite party as well as the prosecutrix has been consistent and categorical with regard to the role of applicant-1, Rohit Kumar Yadav in the crime in question. A point to ponder has emerged, when the statements of P.W.-1 and P.W.-3 are examined in the light of their previous statements on the one hand and the confessional statement of accused Surendra Yadav recorded under Section 164 Cr.P.C. It is well settled that no conviction can be based on the confessional statement of the accused. There being no material on record to show false implication of applicant-1 in the crime in question or to assassinate the credibility of the prosecutrix that she has falsely implicated applicant-1, Rohit Kumar Yadav in the crime in question on account of being accentuated by malafide, this Court comes to the conclusion that no illegality has been committed by court below in summoning applicant-1, Rohit Kumar Yadav under Section 319 Cr.P.C. as per the statement of P.W.-3.
38. From the discussion made above, it can be safely concluded that the prosecutrix, P.W.-3 has not remained consistent and categorical with regard to the role of applicants, 2, 3 and 4 in the crime in question even when applicants 2 and 3 are residents of same village as that of the prosecutrix. Apart from above, except for the bald statement that the prosecutrix was first kidnapped by five accused i.e. present applicants and Atul Yadav, no further detail has been mentioned with regard to the manner of occurrence. As such, nothing more than mere complicity of applicants 2, 3 and 4 has emerged in the crime in question. Thus, ratio laid down by Apex Court in Phool Singh Vs. State of M.P., (2022) 2 SCC 74 that a person can be convicted on the sole testimony of the prosecutrix provided such testimony is clear and categorical and falls in the category of impeccable evidence is not attracted against applicants 2, 3 and 4.. There is another aspect of the matter. When the case in hand is examined in the light of ratio laid down by Apex Court in Brjendra Singh (supra), the inescapable conclusion is that nothing more than mere complicity of applicants 2, 3 and 4 has emerged in the crime in question. In view of above, no such new material has emerged during the course of trial on the basis of which it could be inferred that something more than complicity of non-charge-sheeted i.e. applicants 2, 3 and 4 has emerged. As such summoning of applicants 2, 3 and 4 by court below in exercise of jurisdiction under Section 319 Cr.P.C. cannot be sustained.
39. An identical situation came up for consideration before Apex Court in Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644, wherein Court examined the material on record to find out whether the allegations made against the accused, summoned under Section 319 Cr.P.C. establishes something more than mere complicity. The same procedure has been followed herein also. But except for applicant-1, the court does not find that there is no evidence, which may establish more than mere complicity of applicants 2, 3 and 4 in the crime in question.
40. For the facts and reasons noted above, present application succeeds in part.
41. It is, accordingly, partly allowed.
42. The summoning of applicants 2, 3 and 4 by court below by means of impugned order dated 02.12.2021 is hereby quashed. However, the impugned order in so far as it relates to applicant-1, Rohit Kumar Yadav is maintained.
43. Cost made easy.
Order Date :- 01.08.2022.
YK