(State v. Sonu and Others), rejecting the application under Section 3
Case Details
Neutral Citation No. - 2024:AHC:192317 Court No. - 86 Case :- CRIMINAL REVISION No. - 379 of 2024 Revisionist :- Km Deepika Singh Opposite Party :- State Of Up And 3 Others Counsel for Revisionist :- Bharat Singh Counsel for Opposite Party :- G.A.,Mohd. Hasham,Syed Faiz Hasnain Hon'ble Ram Manohar Narayan Mishra,J. 1. The instant criminal revision has been preferred by the revisionist against the impugned order dated 5.1.2024, passed by learned Additional Session Judge/Fast Track Court No.1, Moradabad in S.T. No.274 of 2021 (State vs. Sonu and Others), rejecting the application under Section 319 Cr.P.C. filed by the revisionist to summon opposite party Nos.2 to 4 for trial alongwith the other accused persons, who are already facing trial.
Legal Reasoning
99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his 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. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused." 9. With foregoing discussion, I find no illegality, irregularity or perversity in the impugned order passed by the court below. The revision is devoid of merits and deserves to be dismissed. 10. Accordingly, present revision is dismissed. Order Date :- 9.12.2024 Kamarjahan
Arguments
2. Heard learned counsel for the revisionist, learned A.G.A. for the State-respondent and perused the material available on record whereas none is there on behalf of the opposite party Nos.2 to 4. 3. According to the prosecution version, the revisionist is informant and prosecutrix in the case, who lodged an FIR at police station concerned on 26.1.2019, wherein she has stated that her father had already died. The accused persons taking undue advantage of pathetic condition of the informant got her sexually exploited by Chandraprakash@ Sonu. Accused Smt. Rajbala was having family relations with the prosecutrix. Chandraprakash@ Sonu, who is son of Smt. Rajbala used to visit the home of the informant. He was having evil eye on her and used to do some obscene act against her. She made a complaint to his mother Smt. Rajbala in this regard whereupon Chandraprakash@ Sonu threatened her to cut his vein and implicate her in suicide note, so that she may be implicated in false case. On 14.8.2018, at 5:00 PM accused Smt. Rajbala called her at her place and asked her to stay at her home for some time so that she may come back from market. Accused Chandraprakash@ Sonu came there in the meanwhile and tried to commit rape on her, when she objected to this, he threatened her with life. After some time, Smt. Rajbala also came back and hence the victim tell her about the incident. She rebuked him and forced him to apologize to her. The informant did not tell anything to others regarding the incident to avoid getting herself scandalized. The accused persons agreed her mother to participate in a marriage programme and on 15.11.2018 accused Smt. Rajbala took her to the place of her daughter Smt. Sandhya where Chandraprakash@ Sonu again committed rpae on her on 20.11.2018 and again on 24.11.2018 and she came back to her home on 25.11.2018. The accused persons namely, Smt. Rajbala, Dharamveeer Singh, Narendra Singh, Smt. Mithlesh, Param and Smt. Sandhya had got her raped by Chandraprakash@ Sonu with intention to get her forcefully married with Chandraprakash@ Sonu. In medico legal examination report of the informant, which is conducted on 25.10.2019, at around 1:30 PM, some simple injuries were found on external part of her body. The victim/informant in her statement under Section 164 Cr.P.C. stated that she was MA passed out and she gives tuition in her home. She was called by her neighbor Rajbala. Sonu committed rape on her by pointing revolver of his father. Accused Sandhya is daughter of Smt. Rajbala, who works in a bank in Meerut. She was seduced to participate in a marriage in Meerut. She was subjected to rape by Sonu on 20.11.2018 and again on 24.11.2018. In her statement under Section 164 Cr.P.C. , she has implicated Sonu, his parents and sister Sandhya. The Investigating Officer submitted chargesheet against four accused persons out of seven namely, Chandraprakash@ Sonu, Dharamveer Singh, Smt. Rajbala and Smt. Sandhya. He dropped the name of three accused persons namely, Narendra Singh, Smt. Mithlesh and Param in chargesheet with finding that their complicity in the offence was not established. 4. On commencement of trial, the chargesheeted accused Sonu was charged for offence under Sections 376, 342, 504, 323 IPC and Smt. Sandhya was charged under Sections 342, 323, 506 IPC whereas Dharamveer Singh, Smt. Rajbala were charged under Sections 323, 506 IPC. On commencement of prosecution evidence, the statement of Constable Neetu Jauhari was recorded, who proved the chik FIR in the case which was drawn by her on the basis of order passed by learned CJM on application under Section 156(3) Cr.P.C. moved by the informant. PW-2 is prosecutrix and informant, who supported the FIR version in her evidence and stated that on 15.11.2018, Smt. Rajbala and five others persuaded her to participate in a marriage in Meerut and placing trust on their persuasion, she went to Meerut by train alongwith them on 15.11.2018 where she was subjected to rape by Sonu on 20.11.2018 and 24.11.2018 at the place of Sandhya, his sister. She came back to her home after getting relieved from detention of accused persons on 25.11.2018. She moved an application before the S.S.P. in this regard and posted her complaint on public information portal. Her medico legal examination was conducted by police but her case was not registered. Therefore, she had to move an application under Section 156(3) Cr.P.C. and FIR was lodged on the basis of order passed by learned CJM thereon. 5. After evidence of PW-2, the informant filed an application under Section 319 Cr.P.C. before the trial court with prayer to summon opposite party Nos.2 to 4, who were named in the FIR to face trial alongwith other accused persons, who are already facing trial. 6. Learned counsel for the revisionist submitted that the opposite party Nos.2 to 4 are named in the FIR. They played active role in persuading the victim to travel Meerut alongwith them in a marriage programme and placing faith on their representation, she visited Meerut where she was detained at the place of Sandhya and was subjected to rape by Sonu twice. He next submitted that the impugned order passed by learned trial court is against the strength of evidence appearing on record. Prosecutrix has supported her FIR version in her sworn testimony before the Court and has attributed active role to the opposite party nos.2 to 4 for the offence. He also submitted that the revisionist has stated in her sworn testimony before the Court that the respondent Narendra is mausa (uncle) of Sonu, Param is his elder brother and Smt. Mithlesh is aunt of Sonu. Therefore, they are close relative of main accused. She implicated them in her statement during trial and learned trial court has dismissed application under Section 319 Cr.P.C. without considering the evidence of the victim in true and proper perspective. The Investigating Officer dropped the names of opposite party Nos.2 to 4 in chargesheet in malafide manner only with a view to extend benefit to them and in fact, the revisionist was brought under pressure by Investigating Officer at the stage of recording of her statement under Section 164 Cr.P.C. to not disclose the complicity of opposite party nos.2 to 4 in her statement before the Magistrate. She was threatened by him that if she takes their names in her statement before the Magistrate, he will destroy her case. He lastly submitted that the impugned order is contrary to law and strength of evidence on record and it is liable to be set aside. 7. Per contra, learned AGA submitted that learned court below has rightly dismissed the application under Section 319 Cr.P.C. in respect of opposite party nos.2 to 4 as their complicity was not found during investigation and their presence was not found in Meerut at relevant time when she was allegedly detained by family members of Sonu and was subjected to rape by him. She has not implicated them in her statement under Section 164 Cr.P.C. also. 8. The revisionist has attributed a general role in FIR against opposite party nos.2 to 4 that they enticed her to visit Meerut with a view to participate in marriage programme alongwith parents and sister of the main accused and placing reliance on their persuasion, she visited Meerut where she was again subjected to rape by accused Chandraprakash@ Sonu twice. She was detained their in the house of Sandhya, who is real sister of accused Sonu. She has reiterated this version in her sworn testimony before the court. Apart from this, no any other role has been assigned to opposite party nos.2 to 4 in the offence. She has not implicated opposite party nos.2 to 4 in any manner in her statement under Section 164 Cr.P.C. recorded by the magistrate. The informant is a duly educated lady and it is difficult to believe that she dropped the names of opposite party Nos.2 to 4 in her statement under section 164 Cr.P.C. due to pressure and threatening of the Investigating Officer. The impugned order passed by the learned court below is supported with cogent reasons and after due appreciation on eviddence appearing on record. The evidence appearing against opposite party nos.2 to 4 is not of such degree, which is required for summoning an accused under Section 319 Cr.P.C. as has been held by Hon'ble Apex Court in Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92, wherein Hon'ble Apex Court has considered ambit, scope and extent of exercise of powers under Section 319 Cr.P.C. at length and observe as under:- "98. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.