Allahabad High Court
Guddu Devi vs State Of U.P. And 6 Others on 1 August, 2019
Bench: Dinesh Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 65
Case :- CRIMINAL REVISION No. - 2975 of 2019
Revisionist :- Guddu Devi
Opposite Party :- State Of U.P. And 6 Others
Counsel for Revisionist :- Abhay Raj Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Abhay Raj Yadav, learned counsel for the revisionist and Sri A.D. Mishra, learned A.G.A. for the State.
The present revision has been preferred to set aside the impugned judgment and order dated 23.5.2019 passed by Special Judge, POCSO Act/Additional Sessions Judge, Room No. 1, Kannauj in S.T. No. 19 of 2017, arising out of Case Crime No. 797 of 2017, under Section 363, 366, 376 IPC and 4 of POCSO Act, P.S. Gursahai Ganj, District Kannauj, whereby the application of the present revisionist for summoning the additional accused persons under Section 319 Cr.P.C. has been rejected.
It has been argued by the learned counsel for the revisionist that the trial court has passed the impugned order dated 23.5.2019 erroneously rejecting the application of informant of the case i.e. Guddu Devi, which was moved under Section 319 Cr.P.C. for summoning the other co-accused i.e. opposite party nos. 3 to 7 to face trial with the opposite party no. 2 Jagdish. Attention is drawn to the statement of the victim recorded as PW-2, in which it has been stated that when on 30.9.2016 at 6;00 pm, she had gone to meet nature's call, one Marshal Vehicle wherein opposite party no. 2 and other co-accused i.e. opposite party nos. 3 to 7 were sitting, came near her and the opposite party no. 2 told her that he was going towards his house and she should also accompany him, as he would leave here there but applicant refused for the same but she was deliberately dragged inside the vehicle and, thereafter, she was taken home by opposite party no. 2 and was confined in a room, where opposite party no. 2 committed rape upon her. She was kept for two days and, thereafter, she was taken to Allahabad, where photograph was taken of her in a temple with Jagdish after threatening her. The applicant did not resist for marriage because of fear and from there she was taken to Delhi, where she was kept for a month and during all this period, accused Jagdish continued to rape her. At the time of occurrence, her age was 14 years. Learned counsel for the applicant has further drawn the attention to the statement recorded of Jafruddin, Principal of Prathmik Vidyalaya, Ladpur, recorded as PW-7, who has stated that the date of birth of the victim is recorded in SR register of School as 7.8.2002, from where she has passed class five and left the school on 31.5.2013 and Transfer Certificate was issued on 7.7.2014. As per her date of birth, she was a minor on the date of occurrence i.e. 30.9.2016. Drawing the attention to all pieces of evidence, it was argued that the trial court has committed error in rejecting the application of the accused-applicant as there was sufficient evidence for summoning the opposite party nos. 3 to 7 as co-accused to face trial with other co-accused opposite party no. 2 in the present case.
Learned A.G.A. has vehemently opposed the prayer of quashing of the impugned order and has argued that in statement u/s 161 Cr.P.C. and 164 Cr.P.C., the victim has taken name of only opposite party no. 2 and none else, hence the impugned order does not suffer from any infirmity.
As per F.I.R., the prosecution case is that on 30.9.2016 at about 6:00 pm, when the daughter of the complainant (victim) had gone for nature's call, Marshal Vehicle had come there in which Jagdish, Amit, Rajneesh, Sharda Devi, Pintoo, Madhuri and Poorna Devi were sitting. The informant's daughter was taken away forcibly in the vehicle by them which was seen by witnesses also but charge sheet has been submitted only against Jagdish i.e. opposite party no. 2.
The trial court has recorded in the impugned order that in statement under Section 161 Cr.P.C. and 164 Cr.P.C., victim has not stated name of any other accused except that of Jagdish i.e. opposite party no. 2 but before trial court she has made improvement and has also taken name of other accused also i.e. opposite party nos. 3 to 7, which is nothing but contradictory from her statement given under Section 161 Cr.P.C. and 164 Cr.P.C. The trial court did not find sufficient evidence on record to summon the accused opposite party nos. 3 to 7 under the above mentioned sections. It has come to the knowledge of this Court that the trial is at the stage of conclusion and entire evidence has been recorded and now at this belated stage, this application has been moved with mala fide motive, which has been rejected by the trial court.
Law for summoning the accused under Section 319 Cr.P.C. has been laid down in Hardeep Singh Vs. State of Punjab and others (2014 3 SCC 92), in case paragaraph no. of the said judgment is as follows:-
"105- 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.
106. 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."
In view of above, trial court has to see that the testimony, which has been recorded before the trial court is so strong against the accused to be summoned that there is strong possibility of them being convicted and not simply that witnesses have taken name of accused opposite party nos. 3 to 7 as being involved in the commission of the offence, therefore, I do not see any infirmity in the impugned order passed by the trial court as simply the victim has taken name of opposite party nos. 3 to 7 in her statement before court and hence it has rightly not been found sufficient evidence at this belated stage to summon the O.P. Nos. 3 to 7 as co-accused. If I apply the test laid down in Hardeep Singh's case (supra) there is no infirmity found in the impugned order, the same deserves to be upheld and the same is upheld and the revision is dismissed.
Order Date :- 1.8.2019
A.P. Pandey
