High Court · 2025

of 2024, arising out of case crime no. 138 of 2024, under Sections 351 (2), 70(2) BSN and Section 3(2)(V) SC/ST Act and Section 5g, 6 POCSO Act, Police Station- Khakhreru, District Fatehpur, pending before the court of 16th Additional District and Sessions Judge/ Special Judge (POCSO), Fatehpur.

5. Learned counsel for the applicant submits that a first information report stood lodged by the first informant on

19.08.2024 under Sections 65(1) and 351(2) of BNSS read with Section 3/4 of the POCSO Act and Section 3(2) (V) of the SC/ST Act against one Kaleem, co-accused with an allegation that though the first informant used to stay in Gujarat in connection with a private job but on 09.08.2024, he received an information through telephone by the victim that the accused marked in the first information report called at 12.00 in the night and pressurized the victim to come out of the house to meet him, otherwise he would get the father and the brother of the victim done to death and when the victim came out of the house then the named accused took the victim to one of the places and despite resistance, he committed a bad act and the age of the victim is shown to be 14 years.

6. Learned counsel for the applicant further submits that there happens to be a statement under Section 161 of the Cr.P.C. of the victim at page 35 of the paper-book wherein the only role assigned to the applicant was that he was standing and he had not committed any bad act with the applicant. Learned counsel for the applicant thereafter inviting attention of the court towards para 67 of the paper-book which happens to be the statement under Section 183 of the BNSS dated 22.08.2024 wherein the involvement of the applicant was shown that he was present along with co-accused, Kaleem and he had committed bad act. Learned counsel for the applicant submits further invited attention towards para 70 of the paper book so as to contend that once there happens to be contradiction in the statement under Section 180 and 183 of BNSS, then the police got the investigation done and also recorded the statement and the statement of the mother of the victim was recorded on 23.08.2024. According to which, it has been stated that the applicant was present along with the co-accused and he was also instrumental in commission of the offence and threat was also administered in that regard. Learned counsel for the applicant submits that first of all, the first information report has been lodged on 19.08.2024 with relation to an incident of 10 days' back i.e. 09.08.2024 and further he submits that there was a total non- cooperation on the part of the victim and first informant to get the age of the victim verified and after constant pressure and notice under Section 179 of BNSS, the age was determined. He further submits that the only role which can be attributed to the applicant is just like an onlooker who was just standing but not committing the offence, thus, none of the offence stands made out against the applicant. Learned counsel for the applicant also invited attention towards Annexure-12 para 1 of application which happens to be applications/ affidavits wherein it has been deposed that no criminality has been attributed to the applicant.

7. Learned AGA on the other hand submits that what is to be seen is the statement under Section 183 of the BNSS, once a categorical statement has come on record then there is no ground made to quash the proceedings as exaggeration is to be seen during the trial but not at this stage.

8. I have heard the learned counsel for the parties and perused the record.

9. The only question which falls for determination before this Court is the fact as to whether the deposition made under Section 164/183 of the BNSS is to be given a weightage viz-a-viz when it is compared to the statement under Section 161 of the Cr.P.C.. There is a redeeming feature in the present case that the first information report has been lodged by the brother of the victim who was not stationed at the place where the incident took place and he post coming to the place of incident from Gujarat lodged the first information report. Once there is a statement under Section 164 of Cr.P.C. and 183 of the BNSS of the victim assigning a pin pointed role upon the applicant then it becomes a matter of trial and this Court would not venture into factual issues in this regard. What is to be seen is whether offences are made out or not. So far as the inconsistency in the statement under Sections 161 and 164 of the Cr.P.C. and the exercise undertaken by the police officials which is apparent from page 70 of the paper book and the recording of the statement by the matter on the next date is concerned, the same is a matter of defence which can only be taken when the trial commences and not at this stage, particularly, when the victim is shown to be minor.

10. Accordingly, the interference is declined and the application is consigned to record.

11. The case diary is made the part of the record and marked as Appendix-A. Order Date :- 3.3.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

of 2024, arising out of case crime no. 138 of 2024, under Sections 351 (2), 70(2) BSN and Section 3(2)(V) SC/ST Act and Section 5g, 6 POCSO Act, Police Station- Khakhreru, District Fatehpur, pending before the court of 16th Additional District and Sessions Judge/ Special Judge (POCSO), Fatehpur.

5. Learned counsel for the applicant submits that a first information report stood lodged by the first informant on

19.08.2024 under Sections 65(1) and 351(2) of BNSS read with Section 3/4 of the POCSO Act and Section 3(2) (V) of the SC/ST Act against one Kaleem, co-accused with an allegation that though the first informant used to stay in Gujarat in connection with a private job but on 09.08.2024, he received an information through telephone by the victim that the accused marked in the first information report called at 12.00 in the night and pressurized the victim to come out of the house to meet him, otherwise he would get the father and the brother of the victim done to death and when the victim came out of the house then the named accused took the victim to one of the places and despite resistance, he committed a bad act and the age of the victim is shown to be 14 years.

6. Learned counsel for the applicant further submits that there happens to be a statement under Section 161 of the Cr.P.C. of the victim at page 35 of the paper-book wherein the only role assigned to the applicant was that he was standing and he had not committed any bad act with the applicant. Learned counsel for the applicant thereafter inviting attention of the court towards para 67 of the paper-book which happens to be the statement under Section 183 of the BNSS dated 22.08.2024 wherein the involvement of the applicant was shown that he was present along with co-accused, Kaleem and he had committed bad act. Learned counsel for the applicant submits further invited attention towards para 70 of the paper book so as to contend that once there happens to be contradiction in the statement under Section 180 and 183 of BNSS, then the police got the investigation done and also recorded the statement and the statement of the mother of the victim was recorded on 23.08.2024. According to which, it has been stated that the applicant was present along with the co-accused and he was also instrumental in commission of the offence and threat was also administered in that regard. Learned counsel for the applicant submits that first of all, the first information report has been lodged on 19.08.2024 with relation to an incident of 10 days' back i.e. 09.08.2024 and further he submits that there was a total non- cooperation on the part of the victim and first informant to get the age of the victim verified and after constant pressure and notice under Section 179 of BNSS, the age was determined. He further submits that the only role which can be attributed to the applicant is just like an onlooker who was just standing but not committing the offence, thus, none of the offence stands made out against the applicant. Learned counsel for the applicant also invited attention towards Annexure-12 para 1 of application which happens to be applications/ affidavits wherein it has been deposed that no criminality has been attributed to the applicant.

7. Learned AGA on the other hand submits that what is to be seen is the statement under Section 183 of the BNSS, once a categorical statement has come on record then there is no ground made to quash the proceedings as exaggeration is to be seen during the trial but not at this stage.

8. I have heard the learned counsel for the parties and perused the record.

9. The only question which falls for determination before this Court is the fact as to whether the deposition made under Section 164/183 of the BNSS is to be given a weightage viz-a-viz when it is compared to the statement under Section 161 of the Cr.P.C.. There is a redeeming feature in the present case that the first information report has been lodged by the brother of the victim who was not stationed at the place where the incident took place and he post coming to the place of incident from Gujarat lodged the first information report. Once there is a statement under Section 164 of Cr.P.C. and 183 of the BNSS of the victim assigning a pin pointed role upon the applicant then it becomes a matter of trial and this Court would not venture into factual issues in this regard. What is to be seen is whether offences are made out or not. So far as the inconsistency in the statement under Sections 161 and 164 of the Cr.P.C. and the exercise undertaken by the police officials which is apparent from page 70 of the paper book and the recording of the statement by the matter on the next date is concerned, the same is a matter of defence which can only be taken when the trial commences and not at this stage, particularly, when the victim is shown to be minor.

10. Accordingly, the interference is declined and the application is consigned to record.

11. The case diary is made the part of the record and marked as Appendix-A. Order Date :- 3.3.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad