Allowed

Vikas v. State of U.P. and Another

Allahabad HC17 Aug 2023CRLA/5585/2023

Case brief

AI extract

What is this about?

Allowed an appeal against an order summoning the appellant Vikas under the SC/ST Act and IPC. Set aside the summons and accepted the final report exonerating him due to lack of proof, conflicting witness statements, and absence of medical evidence.

What did the court decide?

The impugned order dated 24.03.2023 is set aside with regard to appellant Vikas, and the final report with regard to Vikas is accepted.

Vikas Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:165527

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Court No. - 84

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Case :- CRIMINAL APPEAL No. - 5585 of 2023

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Appellant :- Vikas Respondent :- State of U.P. and Another Counsel for Appellant :- Man Mohan Mishra Counsel for Respondent :- G.A.,Kamal Singh

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Hon'ble Mrs. Sadhna Rani (Thakur),J.

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Heard learned counsel for the appellant, learned counsel for the opposite party no. 2 and perused the record.

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This appeal has been filed against the order dated 24.03.2023 passed by the Special Judge, SC/ST Act/2nd Additional Sessions Judge, Jalaun in Special Sessions Trial No. 18 of 2023 (State Vs. Vikash and others) arising out of Case Crime No. 68 of 2022, under Sections 376D, 504 IPC and 3(2) (V) of SC/ST Act, Police Station Kalpi, District Jalaun.

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By the impugned order, Special Judge, SC/ST Act, Jalaun rejected the final report in Case Crime No. 68 of 2022 with regard to Vikas, Pankaj and Iqbal and accepted the final report with regard to Ajay and Vijay. The court summoned Vikas, Pankaj and Iqbal to face the trial under Sections 376D, 504 IPC and 3(2) (V) of SC/ST Act.

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It is argued by the learned counsel for the appellants that an FIR was lodged against the appellant and four other named persons on 04.04.2022 regarding incident dated 17.03.2022. With regard to this FIR, after investigation final report was submitted twice and on the first final report, the order of further investigation was made. Regarding second final report impugned order has been passed on the protest petition of the first informant. The final reports were filed after thorough investigation. The court has accepted all the statements with regard to the appellant and two other accused persons but has disbelieved the same for coaccused Ajay. The court cannot do the same as on the same allegation and evidence, the court has summoned three accused persons and has refused to summon co-accused Ajay. The statements of the witnesses are on record, wherein one independent witness Vandana Omre in her statement has also stated that at the time of incident she had seen the victim in her house, 53 km.s away from the place of incident. Hence, prayer is made accordingly.

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Learned counsel for the opposite party no. 2 opposed the prayer and submitted that in the statement of the victim under Sections 161 and 164 Cr.P.C. there is allegation against the present accused. Hence, the appellant has been rightly summoned by the trial court.

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It is not opposed by the learned counsel for the first informant that regarding the incident final report was submitted by the police and involvement of the accused persons was found to be false. Vide impugned order dated 24.03.2023 final report dated 13.05.2022 has been accepted with regard to co-accused Ajay and Vijay and has been rejected with regard to accused Vikas, Pankaj and Iqbal and ordered to face trial under Sections 376D, 504 IPC and 3(2) (V) of SC/ST Act.

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If we go through the statement of the witnesses, all the witnesses have specifically stated the implication of Ajay and Vijay in the incident false being enmity of their father with the father of the first informant. Regarding present appellant and two other co-accused persons, it is the version of the witnesses that these persons neither had any relationship in the village nor they used to come to their village.

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If we go through the statement of the victim under Sections 161 and 164 Cr.P.C. it is true that in both these statements the victim has not named Vijay among the persons committing rape with her, but in both the statements she has very well named Ajay in committing rape with her. The trial court while passing the impugned order found that there was an enmity between the father of Ajay and Vijay and the father of the victim and because of this enmity the victim used to give false applications against Ajay and Vijay just to pressurize their father for compromise. Regarding present appellant and other co-accused persons, it has come in the evidence that the appellant and two other co-accused persons used to come to the house of coaccused Ajay so they have been falsely implicated in the matter. Regarding present appellant, all the witnesses have refused his presence at the spot on the date of incident.

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So far as the statement of the victim is concerned, she has specifically taken the name of the accused Ajay along with present appellant and two other co-accused persons in committing rape with her but the trial court on the ground of enmity of the father of Ajay and Vijay with the father of first informant has accepted the final report with regard to those two persons, while the trial court did not mention even a single word in its finding that how the implication of the present appellant prima-facie appeared to be true in the incident. It is true that the court cannot pick and choose and implicate one

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person in the offence and exonerate other from the offence on the same evidence. Otherwise also, there is nothing on record except the oral version (which the trial court found false regarding co-accused Ajay) of the victim that the appellant committed rape with her. There is no medical evidence. The statement of the victim has not been supported with the version of any other witness, while in the CDR of the appellant on the date of statement his presence was found about 55 kms. away from the place of incident. The trial court has overlooked this fact also. The trial court has not given any finding that if Ajay could be falsely implicated by the alleged victim then how her statement could be believed about the implication of the present appellant without any corroboration. The Investigating Officer after investigation on the basis of statements on record filed final report twice. The court also did not take into consideration this fact and gave no finding in this regard.

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Thus, from perusal of the order, it is found that the court did not appreciate the evidence on record in appropriate manner. The trial court misread the statements of the witnesses and misinterpreted the statement of the victim. The impugned order is liable to be set aside with regard to the appellant.

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The appeal is allowed and the impugned order dated 24.03.2023 is hereby set aside with regard to appellant Vikas. The final report with regard to Vikas is also accepted.

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Order Date :- 17.8.2023 gp

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Digitally signed by :- GANESH PRAKASH High Court of Judicature at Allahabad

Vikas v. State of U.P. and Another

Case brief

What is this about?

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Vikas v. State of U.P. and Another

Case brief

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