Allowed

Deepak v. State of U.P. and 2 Others

Allahabad HC13 Sept 2019CRLR/953/2018

Case brief

AI extract

What is this about?

This revision petition challenged the trial court's rejection of an application under Section 319 Cr.P.C. to add accused persons. The High Court held the trial court's order perverse for relying on inadmissible statements while ignoring consistent FIR and victim testimony, allowing the revision and directing the trial of omitted accused.

What did the court decide?

Impugned order of 01.02.2018 is quashed. Opposite party nos. 2 and 3 are directed to appear before the court concerned and face trial.

Deepak Vs State of U.P. and 2 Others — Criminal Trial and Appeal | Allahabad HC (2019)

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Court No. - 51

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Case :- CRIMINAL REVISION No. - 953 of 2018 Revisionist :- Deepak Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Pramod Kumar Singh Counsel for Opposite Party :- G.A.,Brajesh Kumar Solanki,Deepak Kumar Yadav

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Hon'ble Vipin Sinha,J.

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Heard Sri Pramod Kumar Singh, learned counsel for the revisionist, Sri Ashok Kumar Gupta, Advocate, holding brief of Sri Brajesh Kumar Solanki, learned counsel for the respondent nos.2 and 3 and Sri Rajesh Mishra, learned AGA appearing for the State.

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The present revision has been preferred being aggrieved against the judgment and order dated 01.02.2018, passed by the Additional Sessions Judge, Court No.8/Special Judge, POCSO Act, Bulandshahar, in Special Case No.1247 of 2017 (State of U.P. Vs. Amit and others), arising out of Case Crime No.216 of 2017, under Section 376 IPC and Section 4 POCSO Act, Police Station Jahangirabad, District Bulandshahar, by means of which the application no.30-Ba filed by the present revisionist before the court below, under Section 319 Cr.P.C., has been rejected.

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A perusal of the application dated 05.12.2017 moved by the revisionist before the court below, under Section 319 Cr.P.C., copy of which is annexed as annexure no.8 (page 85) of the present revision. The said application was filed with the contention that the victim of gang rape has named specifically three persons namely Amit, Ankit and Nitish. Even in the statement of the victim under Section 161 Cr.P.C. and 164 Cr.P.C. she has been consistent. Even in the trial court where she has been examined as P.W.-1, she has also been consistent. Thus the application under Section 319 Cr.P.C. moved by the revisionist before the court below.

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Keeping in the view the application under Section 319 Cr.P.C., I find that, even in the FIR which has been lodged by the brother of the victim it has been clearly mentioned herein as under:-

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^^lsok esa Jheku dksroky lkgc dksrokyh tgkaxhjkckn Jheku th fuosnu gS jkf= djhc 11 cts esjh cgu rUuw mez djhc 14 o"kZ dks nhokj Qkandj xkao ds vfer iq= iIiw o vafdr iq= lwjtiky ?kj esa ?kqldj lksrh gqbZ dks eqg Hkhpdj tcju mBkdj ys x;s dqN nsj ckn mldh cgu dh vkaW[k [kqyus ij rUuw dks xk;c ns[kdj mlus ifjokj okyks dks txk;k vkSj rUuw ds xk;c gksus ds ckjs esa crk;k rks ge lHkh us mls xkaWo o [ksrks esa <w<uk 'kq: dj fn;k djhc le; 1 cts jkf= vfer ds u;s cu jgs edku ls ph[kus dh vkot lqudj eS iznhi o ccyh o mldh ekaW fu'kk vkSj cgqr ls yksx vfer ?kj es ?kqls rks gedks ns[kdj vfer iq= iIiw o vafdr iq= lwjtiky o vafdr dk HkkbZ furs'k Hkkx x;s rUuw v/kZuXu voLFk esa tehu ij iM+h Fkh mldk cgqr cqjk gky Fkk mlus crk;k fd ?kj ls eq>s vfer o vafdr mBkdj yk;s Fks mUgksaus esajs lkFk reUpk fn[kkdj jsi fd;k vfer us esjs lkFk jsi fd;k vkSj vadr o furs'k ?kj ds ckgj [kM+s Fks eS cgqr jksbZ fxMfxMkbZ mUgksaus esjh ,d u lquh eS viuh cgu rUuw dks ysdj Fkkuk vk;k gwaW esjh fjiksVZ fy[kus dh dqik djsaA**

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The counsel for the revisionist has placed further reliance on the statement of the girl recorded under Sections 161 Cr.P.C. and 164 Cr.P.C., copy of which are annexed as annexure nos.3 and 4 of the present revision. The most relevant thing of the statement of 164 Cr.P.C. of the girl is extracted herein below:-

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^^ihfMrk ruq us l'kiFk C;ku fn;k fd 26-05-17 dh jkr eS vius ?kj ds pkSd es lks jgh Fkh rHkh eSaus ns[kk fd esjs ikl vfer vkSj vafdr [kMs gS eSa tSls gh ?kcjk dj mBh mUgksaus esjk eqg nck fn;k vkSj vafdr us dVVk fn[kkdj dgk fd pqi pki gekjs lkFk ckgj py ckgj furs'k igys ls [kM+k Fkk FkksMh nwj ij vafer dk u;k edku cu jgk Fkk ogka ;s yksx eq>s tcjnLrh mBkdj ys x;s ogka ij rksuksa us ckjh&ckjh ls esjs lkFk tcjnLrh cykRdkj fd;k FkksMh nsj esa esjs ?kjokys eq>s <w<rs&<w<rs ogk vk x, mUgsa ns[kdj oks rhuksa Hkkx x;s ml le; esjs 'kjhj ij dksbZ diMk ugh Fkk eS cl U;k; pkgrh gwaW muesa ls nks vc Hkh ugh idM+s x;s gSaA**

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The attention of the Court has also been drawn to the statement of the victim, who has been examined before the trial court as P.W.-1, copy of which is annexed on page no.82 of the present revision. The relevant portion of the statement is once again is extracted herein below:-

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^^esjh tUe frfFk 8-9-2004 gS ?kVuk ds le; eS d{kk 9 esa i<+rh Fkh eS eqfYteku vafdr vfer vkSj uhfr'k dks tkurh gwW ;s rhuksa esjs gh xkaWo ds gSA ?kVuk fnukad 26-5-17 dh jkr dh gS] eS vius ?kj esa pkSd esa lks;h gqbZ Fkh jkr dks esjh vkaW[k [kqyh rks eSus ns[kk vafdr o vfer nksuksa esjs ikl [kMs Fks] tc eSa ?kcjk dj mBh rks vfer us esjk eqg nck fy;k vkSj vafdr us dVVk fn[kkdj dgk fd pqipki gekjs lkFk ckgj pyksA eSa ckgj buds lkFk fudyh ckgj uhfr'k [kM+k gqvk FkkA ;s rhuksa eq>s ikl esa cu jgs vfer ds u;s edku esa ys x;s ogkaW bu rksuks us esjs lkFk cykRdkj fd;k FkksM+h nsj ckn esjs ?kj okys [kkstrs&2 ogkaW vk;sA muds vkus ij ;s rhuks ogkaW ls Hkkx x;s eq>s NksM+djA tc esjs ?kj okys vk;s ml le; esjs “kjh ij diM+k ugh Fkk eSa fuoZL= Fkh esjk eftLVzsV lkgc ds lkeus c;ku gqvk Fkk] tks ?kVuk esjs lkFk gqbZ Fkh ogh crk;k FkkA

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esjk esfMdy gqvk Fkk] ml ?kVuk dh fjiksVZ esjs HkkbZ nhid us fy[kk;h Fkh] tc eS lks jgh Fkh ml le; dksbZ jks'kuh ugh Fkh pkaWn dh jks'kuh gks jgh Fkh mls eSus bu rhuks dks igpkuk FkkA**

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Keeping in view the aforesaid facts and circumstances, I have perused the impugned order dated 01.02.2018, by means of which the application under Section 319 Cr.P.C. moved by the revisionist has been rejected and I find that the court concerned has unduly swayed by Parcha No.12 and the entire order is based on this Parcha No.12. The court concerned had clearly disbelieved the FIR version, the statement of the girl under Section 164 Cr.P.C. and the statement of the girl recorded before the court concerned as P.W.-1, and on a total misleading of facts and circumstances and by placing absolute reliance on Parch No.12, the application under Section 319 Cr.P.C. moved by the revisionist has been rejected by the court concerned.

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Learned counsel for the revisionist further submits that the order impugned has wrongly been passed, however, he has not been able to point out any illegality or

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perversity in the order impugned.

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It has been held by the Apex Court that a prima facie case and not evidence which is sufficient for conviction is required for impleading a person as an accused. (Mohan Wahi vs. State, CBI-New Delhi, 1982 CrLJ 2040 Delhi).

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It has also been held by the Apex Court that when the accused named in FIR is not chargesheeted by the police, he can be summoned under Section 319 Cr.P.C. as an accused on the solitary statement of the complainant in his examination-in-chief to stand trial for Section 302 IPC. (Tulsi and another vs. State of UP and others, 2004 CrLJ 88).

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It has also been held by the Apex Court that at the stage of Section 319 Cr.P.C. the court is not to see whether the evidence is sufficient to sustain conviction. (Bimbadhara Lenka vs. State of Orissa, 1983 (1) SCC 1.

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Having heard the learned counsel for the parties, having perused the record and also keeping in view the law as laid down by the Apex Court in the Case of Hardeep Singh v. State of Punjab reported in 2014 (3) SCC 92 and in the case of Jogendra Yadav v. State of Bihar and another reported in 2015 (9) SCC 244 , no case for any interference has been made out. Accordingly, the prayer, as made above, is refused.

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Looking to the aforesaid facts and circumstances of the case, this Court finds that the finding of the trial court are absolutely perverse and illegal. I further find from the order dated 01.02.2018 that the trial court was also unduly swayed by the facts that in some statement made before the doctor (which is not even admissible evidence).

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In view of the aforesaid facts and circumstances of the case, the impugned order dated 01.02.2018 is hereby quashed. The revision is allowed. Consequences to follow.

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Order be certified to the court concerned for necessary consequential action.

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The opposite party nos.2 and 3 are hereby also directed to appear before the court concerned and face trial, as and when the court concerned fixed the dates.

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Order Date :- 13.9.2019 VKG

Deepak v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Deepak v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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