Sonu @ Rajneesh Tiwari And 2 Ors vs State Of U.P. And Anr
2019 Latest Caselaw 4534 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED ON 07.02.2019
 
DELIVERED ON 15.5.2019
 

 
AFR
 

 
Case:- CRIMINAL MISC.  482 APPLICATION No. 2897 of 2019.
 
Applicant :- 	Sonu @ Jajneesh Tiwari and 2 others.
 
Opposite Party:- State of U.P. and another.
 
Counsel for the Applicant:-    Dharmendra Singhal, 
 
                                                   Sanjay Chaturvedi, 
 
                                                Shivendra Raj Singhal. 
 
Counsel for Opposite Party:-  G.A.
 

 
Hon'ble Rahul Chaturvedi J. 
 
1.

Heard Shri Dharmendra Singhal, learned Counsel, assisted by Sri Shivendra Raj Singhal and Sri Sanjay Chaturvedi, learned A.G.A. for the State, perused the record.

2. On the earlier occasion i.e. on 07.02.19, the matter was heard at length and an interim order was granted in favour of the applicants, which is operational till date.

3. After having heard rival submissions of the learned counsel for the contesting parties, a consensus was arrived at between them that the matter be heard at the admission stage itself without any counter version from the opponent. Hence the case is being adjudicated and decided at the admission stage itself.

4. The prayer sought by means of present Criminal Misc. Application filed under section 482 Cr.P.C. is to set-aside impugned judgement and order dated 11.01.2019 passed by I-Additional Sessions Judge, Ballia in S.S.T. No. 527/2017 as well as S.S.T. No. 186/2018 (State Vs. Prince @ Aditya Tiwari and others), whereby charges were framed under sections under sections 354D(2) I.P.C. and 11/12 of Protection of Children from Sexual Offences Act against applicant nos.1 and 2 (Sonu @ Rajneesh Tiwari and Kripa Shanker Tiwari respectively) and the charges framed U/s 147, 148, 302 r/w 149 and 506 I.P.C. and U/s 354D(2) I.P.C. and 11/12 Protection of Children from Sexual Offences Act against applicant no. 3 (Prince @ Aditya Tiwari) as well as to set aside order dated 14.01.2019 directing the applicants to surrender and seek bail under the aforesaid respecting sections 354D(2) IPC and U/s 11/12 POCSO Act on the followings grounds:

(i) the charges are defective one and

(ii) framing of the charge vide order dated 11.01.2019 is dehors to the earlier judgment of this court dated 31.05.2018 while deciding the Criminal Misc. Application U/s 482 Cr.P.C. No. 19724/2018 and thereafter another judgment dated 2.7.2018 while adjudicating and deciding the Criminal Misc. Application U/s 482 Cr.P.C. No. 22130/2018.

5. This Court has respectfully perused the judgments passed by my predecessors deciding both the aforesaid Criminal Misc. Applications and finds that by the order order dated 31.05.2018 gave direction to the court below, which is hereby extracted herein below:

".... In the considered opinion of this Court, charges nos. 5 and 6, as framed, are required to be quashed and framed afresh by the Trial Court on the next date fixed in accordance with the requirement of Section 212 Cr.P.C. with a good enough description of the date, time and place of occurrence as would give the accused sufficient notice, occasion and opportunity to meet those charges.

18. In the result, this application is allowed in part. The impugned order dated 22.05.2018 (Annexure No. 14 to the affidavit filed in support of the application) in so far as it relates to charges nos. 5 and 6 are hereby quashed. The Trial Court is directed to reframe the said charges on the next date fixed, or as soon as may be, in accordance with what has been said in this judgment. The order impugned assailing refusal to discharge and that questioning the other charges framed vide order dated 22.05.2018 are upheld.

6. Perusal of the record reveals that vide order dated 02.07.2018 passed in Application u/s 482 No. 22130 of 2018 by coordinate Bench of this Court, the matter was concluded after hearing contesting parties on merits. It would be pertinent to reproduce the relevant extract of the aforesaid order herein below:

"....Having heard the learned counsel for the parties, no useful purpose would be served in keeping the application pending especially in view of the fact that the argument so advanced by learned counsel for the applicants appears to have already been accepted by this Court vide its order dated 31.5.2018. Merely because the word "school khulne ke bad avam dinaank 8.8.2017 ke purva" have been added it cannot be said that the either the place or the time or the date of the incident has been disclosed.

In fact even in the original order dated 22.5.2018 a similar description had been made in charge nos. 5 and 6 wherein the learned court below had observed "Uprokta tithi avam samay ke purva" this reference was clearly to the date 8.8.2017, which had been specified in charge no. 1 and with which there is no dispute.

Therefore, the submission advanced by learned counsel for the applicant that the court below has committed itself to the same error as had crept in the order dated 22.5.2018 has to be accepted inasmuch as other than re-framing of the sentence the defect noticed by this Court in its order dated 31.5.2018 has yet not been addressed.

The order dated 18.6.2018 is hereby set aside and the matter is remitted to the learned court below to comply with the order dated 31.5.2018 passed by this Court in 482 Cr.P.C. Application No. 19724 of 2018.

It is expected that the learned court below shall comply with the aforesaid order in letter and in spirit and not seek formal compliance for the same. The aforesaid exercise may be completed as expeditiously as possible.

In view of the aforesaid directions, the application is disposed of."

7. But when the matter was not disposed of by the court below to the satisfaction of the applicants, the present Criminal Misc. Application has been filed, assailing the order dated 11.01.2019 by the trial court whereby fresh charges have been framed.

8. Before arriving to legal aspect of the issue, as canvassed by learned counsel for the applicants, it would be imperative to give skeleton of the facts for appreciation of the entire controversy involved in the matter.

(a) On 08.08.2017 at 9.30 A.M., one Jitendra Kumar Dubey lodged an FIR for the incident said to have occurred on the same day at 7.30 hours for the alleged incident of murder by named accused persons i.e. (1) Prince Tiwari (2) Kripa Shanker Tiwari (3) Sonu Tiwari (4) Neeraj Tiwari and (5) Raju Yadav, which was registered as Case Crime No. 1128/2017 at Police Station Banshdih Road, District Ballia with the allegation that informant's daughter, Ragni Dubey, a student of Class-XII, the named aforesaid accused persons used to indecently tease her by making derogatory and filthy remarks, while going to her school on the way. Often they tried to cross heights of indecency by physically mishandling her. Humiliated by such a behaviour of the accused persons, she complained the matter to her father many a times, who tried to restrain the hooligans. On the fateful day, i.e. on 8.8.2017 at 7.30 hours, when daughter of the informant was going to school on her bicycle and reached near Kali Temple, the named accused miscreants surrounded her on their respective motorcycles, dashed the cycle of the victim and thereafter all of them caught hold the girl, manhandled her. One of the accused Sonu Tiwari pulled her hair and the other Princie Tiwari, with intention of kill, assaulted upon the girl by a knife, causing serious and grievous injury. This incident was witnessed by informant's wife Smt. Vandana Dubey, Sunil Singh and other persons of the locality. After the occurrence, all of them took to their heels from the site and the girl was taken to the hospital where she took her last breath. A blood stained knife was recovered from pointing out of co-accused Prince Tiwari.

(b) Perusal of the post mortem report of the deceased; Ragni Dubey reveals that the deceased received three injuries over her person. The first injury was incised wound with clear-cut margins 3.5 x 1 cm x deep facial depth extending between midline on the neck and the lower margin of left mandible running obliquely. The second injury was incised wound measuring 4 cm x 1.5 cm x deep facial depth on left side of neck 1 cm below injury no. 1. The third injury was of incised wound of 8.0 cm x 6.5 cm x muscle deep on both side of neck 9 cm above sternum involving deep issues of neck with gaping of margin of would and this wound was deeper on the right side. on the left side of the neck, 1.00 c.m. below the injury no.1 and the third injury is incised wound on both the sides of neck, 9 c.m. above sternum involving deep tissues of the neck.

9. During course of arguments, the learned counsel of applicants, himself, leaving all other submissions aside, stressed upon the charges framed U/s 354-A IPC and U/s 7/8 of Protection of Children From Sexual Offences Act and completely focused upon the order of refusal to discharge application dated 22.05.2018.

10. It is contended by the learned counsel for the applicants that the charges framed U/s 354A IPC and 7/8 of the Protection of Children From Sexual Offences Act are not in consonance with the mandate provided in Section 212 of Code of Criminal Procedure, which reads thus: -

Section 212 of the Criminal Procedure Code

Particulars as to time, place and person

1. The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

2. When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other moveable property, it shall be sufficient to specify the gross sum or, as the case may be, described the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219:

Provided that the time included between the first and last of such dates shall not exceed one year.

11. The learned counsel for the applicants assailed those charges on the ground that Section 211/212 Cr.P.C. speaks about furnishing the particulars as to the time/place and person and on this premises it was challenged that charges are framed without the aforesaid essential particulars and it has been vaguely described as the same do not give notice to the accused of the offence for which they they have been charged. The earlier coordinate Benches have appreciated the arguments and were of the opinion that this kind of vague description of date, time of occurrence is far from the mandate of Section 212 Cr.P.C., which is required essentially, therefore, the impugned order dated 22.05.2018 so far as it relates to charge nos. 5 and 6 are quashed and the trial court was redirected to frame the charges afresh.

12. After receipt of the aforesaid order, the charge were reframed on 18.6.2018 which again come before this Court by means of Criminal Misc. Application No. 22130/2018 and vide order dated 2.7.2018 the opinion of my predecessor was that the court below has committed the same error as earlier one and except by making cosmetic change in making the charge i.e. "mijksDr frfFk ,oa le; ds iwoZ" was added and the second time also the order dated 8.6.18 was set-aside and matter was remitted once again to comply with the order dated 31.5.18 while deciding the Criminal Misc. Application No. 19724/2018 afresh. Matter was again remitted back and consequently vide order dated 12.6.18 the learned Ist Addl. Sessions Judge while dropping the charges U/s 5 of the Protection of Children From Sexual Offences Act was dropped by the then I-Addional Sessions Judge, Ballia and thereafter matter was reopened for framing fresh charge. At this stage, it is pertinent to bring on record the statements of the informant as well the other eye witnesses recorded under section 161 Cr.P.C., who have made unambiguous submissions. It is pertinent to mention here that there is categorical allegation of eve-teasing and assault upon a women with intent to outrage her modesty in the FIR itself. 13. 13. There is specific allegation in the FIR that these accused persons quite often used to tease the girl by extending filthy and abusive language, passed derogatory remarks and some times they tried to get physical too. Besides this, on the fateful day when she was going to her school by her bicycle at 7.30 in the morning. She was sorround by all of them and thereafter she was mercilessly butchered by the applicants. The relevant portion of the 161 Cr.P.C. statement of the informant is quoted herein below:-

eSa lsuk ls lsokfuo`Rr gwa rFkk dSUVhu cfy;k esa dk;Zjr gwa] esjh yMdh jkfxuh nqcs laLdkj Hkkjrh lkdsriqj esa d{kk 12 dh Nk=k Fkh esjh yMdh jkfxuh nqcs dks Ldwy tkrs le; o vkrs le; xkao ds fizUl frokjh iq= d`ik'kadj frokjh] lksuw frokjh iq= ckys'oj frokjh] uhjt frokjh iq= pUnzeu frokjh] jktw ;kno iq= jkepUnj ;kno NsM+[kkuh o cksyckth djrs jgrs Fks ftldh f'kdk;r esjh yMdh jkfxuh nqcs us eq>ls fd;k Fkk eSus bldk mykguk d`ik'kadj o uhjt o jktw ;kno lksuw frokjh ds ?kj okys ls fd;k Fkk oks mu yksxkaa us dgk Fkk fd ge vkvks viuh yMdh dks le>kvksa tks gks eSa ns[k ywaxkA esjs mykguk nsus ls ;s yksx eq>ls o esjh csVh jkfxuh ls dkQh ukjkt jgus yxs Fks A

14. On similar lines, the statements under section 161 Cr.P.C. of the mother of deceased, Smt. Vandana Dubey and Neha Dubey were also recorded. They also stated therein that on the fateful day at 7.30 in the morning, when deceased went to her school on her bicycle, near Kali Mandir all the named accused persons on their respective motorcycles surrounded her and accused Prince Tiwari dashed the bicycle of the girl, consequently she fell down whereupon Sonu Tiwari manhandled, rest of the accused persons caught hold of her and Prince Tiwari has given fatal blow by his knife on her neck. The said knife was recovered from the pointing out of Prince Tiwari.

15. After remitting the matter twice by this court, the I-Additional Session Judge eventually on 11.01.2019 framed charge against accused Prince Tiwari @ Aditya Tiwari U/s 354D(2) I.P.C. and under section 11/12 of the POCSO Act as Charge No. 5 and 6 respectively, maintaining rest of sections of the Indian Penal Code i.e. U/s 147, 148, 302/149, 506 I.P.C. against Sonu @ Rajneesh Tiwari, charge no. 1 was framed U/s 354D(2) IPC and 11/12 of the Protection of Children From Sexual Offences Act. So far as Prince Tiwari is concerned, charge U/s 4/25 Arms Act was also framed after recovery of knife from his pointing out and using the same for commission of the offence. In the aforesaid context it would be pertinent to go through Section 354D(2) I.P.C., once again which reads thus:-

354D. Stalking - (1) Any man who-

(i) follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or

(ii) monitors the use by a woman of the internet, email or any other form of electronic communication,

commits the offence of stalking.

(2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years and shall also be liable to fine."

16. Thus from the aforementioned facts and circumstances, it is quite clear that in the instant case, the accused persons were charged for following the deceased, trying to make contact with her to foster personal interaction repeatedly despite of her clear indication of sereneness towards the accused persons. It is evident from the statements recorded under section 161 Cr.P.C. of the informant, mother of the girl and other witnesses that the deceased was on constant target of accused persons of which she repeatedly made complaints to her father.

17. Submission made by the learned counsel for the applicants that charges framed are not in consonance with the mandate laid down under section 212 Cr.P.C as it provides that an accused person is entitled to know with certainty and accuracy the exact nature of charge brought against him. Unless he has the knowledge in this regard his defence would be seriously seriously prejudiced and marred. However, where it is not possible for the prosecution to mention the particulars preciously, having regard to the nature of the information available to the prosecution, failure to mention such particulars, would not invalidate the charge. Sub-Section 2 of Section 212 Cr.P.C. is an exception to meet certain contingencies and is exception to the normal rule set up under section 218 of Cr.P.C. and thus Section 212 Cr.P.C. should not be read in exclusion. Section 215 Cr.P.C. provides the affects of the error, if at all. Section 215 Cr.P.C. is intended to prevent any failure of justice for non-compliance with the matters requires to be stated in the charge. Unless the irregularity in the charge has mislead the accused or occasioned a miscarriage of justice, the conviction cannot be set-aside. Omission of date of occurrence in the charge had of no consequence. Committal in marking the mistake in timing of the occurrence in the charge is not fatal.

18. In the celebrated judgment of Hon'ble Apex Court in the Case of Willie (William) Slaney Vs. State of Madhya Pradesh AIR 1956 SC Page 116, the Constitutional Bench of Hon'ble Apex Court has explained the concept of "prejudice caused to the accused" and "failure of justice" and held as under:

"5. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by an introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice.

If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That broadly speaking is the basic principle on which the Code is based.

19. Following the Constitutional Bench in the Willie(William( Slaney Vs. State of Madhya Pradesh's case, the three Judges Bench of Hon'ble Apex Court in the Case of Guru Bachan Singh VS. State of Punjab AIR (1957) SC 636 observed that the court is not looking into technicalities but to the substance and held that:-

"....... in judging a question of prejudice, as a guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. ...."

20. The failure of justice has been recently explained in yet another judgment of Hon'ble Apex Court in the case of Main Pal VS. State of Hariyana 2010 (3) SCC(Crl.) 1234 and after thrashing the principles which are reiterated in several decisions of Hon'ble Apex Court including State of West Bengal. Vs. Laisal Haq (1989) SCC (Crl) 513, State of Andhra Pradesh Vs. Thakki Diram Reddy 1998 SCC (Crl.) 1488, Dalvir Singh Vs. State of U.P. (2004) SCC (Crl.) 1592 and Sanichar Sahani Vs. State of Bihar (2009) (7) SCC 198, the following principles relating to section 212, 215 and 464 of the Code of Criminal Procedure, which are relevant in the instant case are summarize herein below: -

(i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, ass are reasonably sufficient to give the accused notice of the matter with which he is charged.

(ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge.

(iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts should to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself (underlining added).

21. In the recent decision enunciated in the case of Darbara Singh Vs. State of Punjab [(2012) (10) SCC Page 476], the Hon'ble Apex Court considered similar issue and held that the accused has to satisfy the court that if there is any defect in framing the charge which has prejudiced the cause of the accused, resulting in the fatal of the justice. It is only in that eventuality the court may interfere.

22. On the aforesaid parameters laid down by Hon'ble the Apex Court in plethora of judgments where similar controversy was adjudicated as is in the present case where charge under section 354D(2) IPC was framed against Prince Tiwari @ Aditya Tiwari, on sole ground of the allegations that "on 8th Agust, 2017 around 7.30 a.m. near Kali Mandir situate at Wajahan, Ballia he has followed the deceased and attempted to contact her to foster the interaction repeatedly despite of the clear indication by her, her disinterest and therefore, this action on the part of accused person prima facie falls within the realms of offence U/s 354D(2) Cr.P.C." This fact achieved substantial corroboration from the statements recorded under section 161 Cr.P.C. of the father/informant with the text of the FIR wherein the allegation are in consonance with the statements recorded under section 161 Cr.P.C. of Vandana Dubey and Neha Dubey, who are eye witnesses of the incident. Not only this, on the date of incident itself, Prince Tiwari son of Kripa Shanker Tiwari assisted the team of the police in procuring blood stained knife on his own pointing out from an agricultural field, belonging to one Ram Narain Chaubey, son of Param Hans Chaubey and resident of Nawa Nagar, Basdeeh Road, Ballia.

23. Now the question falling for consideration is as to whether in the absence of any material i.e. time and place of incident while framing the charge U/s 354A I.P.C., would amount to failure of justice to the accused persons. It is relevant to examine whether the accused persons were aware about the basic ingredients of the offence for which they are being prosecuted, whether they are explained to him and whether they have got fair chance to defend. The charges framed by the learned I-Additional Sessions Judge are as follows:-

CHARGE:

Dated: 11.01.2019.

I, Narendra Singh, Ist Addl. Sessions Judge, Ballia, hereby charge you Prince Tiwari alias Aditya Tiwari as follows:-

1........

2........

3.........

4..........

5. That you, on the 08th day of August, 2017 at about 7.30 a.m. near Kali Mandir situated at Village Wazhan, PS Bansdih Road, District Ballia followed the victim and attempted to contact her to foster personal interaction repeatedly despite a clear indication of her disinterest and thereby committed an offence of stalking punishable under section 354D(2) of the Indian Penal Code and within the cognizance of this court.

6. That you, on the 08th day of August, 2017, at about 7.30 a.m., near Kali Mandir situated at Village Wazhan, P.S. Bansdih Road, District Ballia repeatedly and constantly followed the victim, a minor girl and thereby committed an offence of sexual harassment punishable U/s 12 read with S. 11 of POCSO Act, and within the cognizance of this court.

24. From the record, it is borne out that the deceased Ragni Dubey was pursuing her Class XII studies and as per her High School Certificate, her recorded date of birth was 22.03.2002. The date of incident is 08.08.2017 and therefore on the date of incident, her age was lesser than 18 years and she was subject matter of offence, mentioned in Section 11 of Protection of Children from Sexual Offence Act which defines sexual harassment upon a child. In the instant case also the victim girl was on a constant target of teasing by these larikins by their ugly utterances/remarks and repulsive signals, gestures and often these recalcitrants try to turn physical towards the poor victim girl. All these allegations are evident from the FIR as well as the statements under section 161 Cr.P.C. of the informant as well as of the witnesses.

25. It was further argued by the counsel for the applicant that the charges are vague one and in absence of time and date of offence punishable under section 354 I.P.C. would cause serious prejudice to the accused/applicants. This argument, if tested on the ground realities, is not possible because it is not practically possible to prepare a chart, time, duration before whom those offences were made or the word/s uttered. It is not practically possible to provide each and every detail at the time of framing of charge and thus this court is fails to accept the aforesaid argument placed by learned counsel for the applicants.

26. In sum and substance, taking the guidelines of Hon'ble Apex Court and evaluating the same with the facts and circumstances of the present case, this court do not find any illegality/irregularity/impropriety or perversity in the order impugned dated 11.01.2019 and the order rejecting the application, holding that appreciation of evidence available from the statements of the witnesses as well as documents, including the injuries, the post mortem report of the deceased and other relevant materials, it appears that prima facie case is made out against the offenders namely; Kripa Shanker Tiwari, Prince @ Aditya Tiwari, Sonu @ Rajneesh Tiwari, and Neeraj Tiwari, who were involved in the offences U/s 147, 148, 302/149, 354D IPC and Section 12 read with 11 of the POCSO Act, accordingly the charges were framed against the accused persons.

27. However, the order supplemented thereby making an addition of Section 354D I.P.C. and Section 11/12 Protection of Children from Sexual Offences Act against Kripa Shanker Tiwari, it is given to understand that the accused persons have not sought bail in the added sections; they are required to surrender and get themselves bailed out within a period of one month from today.

28. The present Criminal Misc. Application U/s 482 Cr.P.C. sans merit and therefore, dismissed. The interim order, granted earlier, stand discharged.

Order Date:-15.5.2019

shailesh