Dismissed

Gaurav v. State of U.P. and 3 Others

Allahabad HC2 Aug 2024CRLR/1254/2024

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision seeking to quash an order summoning the revisionist as an additional accused under Section 319 Cr.P.C. The court held that the trial evidence indicated a strong and cogent case for conviction, satisfying the precedent set in Hardeep Singh.

What the court decided

AI extract

Gaurav vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:124746

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Court No. - 84

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Case :- CRIMINAL REVISION No. - 1254 of 2024

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Revisionist :- Gaurav Opposite Party :- State Of U.P. And 3 Others Counsel for Revisionist :- J.B. Singh Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Singh,J.

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Heard Mr. J.B. Singh, learned counsel for the revisionist and Mr. Rabindra Kumar Singh, learned Additional Government Advocate, assisted by Ms. Priyanka Singh, learned Brief Holder representing the State.

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The instant Criminal Revision under Section 397/401 of the Code of Criminal Procedure has been filed by the revisionist- Gaurav, against the impugned order dated 30.01.2024 passed by learned Additional Session Judge (Rape and POCSO) Court No.5, Baghpat in Session Trial No. 65 of 2022 (State Vs. Aashish), under Sections 363, 376 I.P.C. and Section 3/4 POCSO Act, arising out of Case Crime No. 70 of 2021, police station Ramala, district Baghpat, whereby the trial court in exercise of powers under Section 319 Cr.P.C. has summoned the revisionist as an additional accused to face trial in the above case.

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The emanation of facts giving rise to the present Criminal Revision are that the victim lodged an F.I.R. on 03.04.2021 with regard to an incident which took place on 02.04.2021 against two accused persons, namely, Ashish and Gaurav (revisionist) for the offence under Sections 363, 376D I.P.C. and Section 3/4 POCSO Act. The investigating officer, after investigation submitted the charge sheet only against Ashish. No charge sheet was submitted against the revisionist and he was exonerated during investigation, because in the opinion of the investigating officer, his complicity in the alleged crime was found false. Before the trial court statement of victim was recorded as PW-1 on 09.11.2023 and she in her examination-in-chief has

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stated inter-alia that on 02.04.2021 at about 1:30 PM, she was going from home to work at a brick kiln with her father and mother. At that time, Ashish and Gaurav came on a bike. They stopped bike and forcibly made her sit on the bike. They made her sit and took the bike straight towards Birla village. They took the bike down on a deserted unpaved road. Then they took her to a field near a tube-well. After stopping the bike there, both of them caught hold her and forcibly took her to the sugarcane field. Gaurav went aside and Ashish forced her to drink cold water and she started getting intoxicated, the Ashish committed wrong with her. Thereafter, on the application under Section 319 Cr.P.C. of the informant, the revisionist has been summoned vide impugned order.

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The main substratum of argument of learned counsel for the revisionist is that since in this case complicity of the revisionist was found false during investigation and no charge-sheet was submitted against him, therefore, the revisionist cannot be summoned merely on the basis of examination-inchief of PW-1 recorded before the trial court without considering the material collected by the investigating officer during course of investigation.

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Per contra, learned Additional Government vehemently opposed the said submission by contending that the evidence which has come on record during trial is more than prima facie, therefore, there is no illegality in the impugned order.

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The judgement of the Hon'ble Supreme Court in the case of Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 is the celebrated judgment on the issue involved in this case, which laid down the criteria for summoning a person as an additional accused in exercise of powers under Section 319 Cr.P.C. holding that where strong and cogent evidence occurs against a person from the evidence led before the trial court, then such power should be exercised and not in a casual and cavalier manner. It has also been held that it requires much stronger evidence than mere probability of his

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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. The said view has further been followed in catena of judgments by the Apex Court.

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In the light of the guidelines laid down by the Hon'ble Apex Court in the case of Hardeep Singh (supra), I find that as per medical report, victim is minor child aged about 17 years. The revisionist has played active role in facilitating the act of forceful rape on the minor victim by Ashish. The victim has also proved her statement under Section 161 and 164 Cr.P.C. If allegations levelled by the victim in her examination-in-chief during trial if go unrebutted, there is possibility of conviction of the accused. The evidence which has been brought on record comes under the purview of more than prima facie. Considering the facts and circumstances of the case, I find no good ground to interfere with the impugned order. The presumption, observations and findings recorded by the trial court are not liable to be interfered with.

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The Criminal Revision lacks merit and is accordingly dismissed .

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Let a copy of this order be sent to the trial court, concerned as well as informant / opposite party no.2 within a week.

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Order Date :- 2.8.2024 Kashifa

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Digitally signed by :- KASHIFA High Court of Judicature at Allahabad

Gaurav v. State of U.P. and 3 Others

Case brief

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What the court decided

Gaurav v. State of U.P. and 3 Others

Case brief

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