Khalil Ahmad @ Khalil Pradhan vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 8341 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 10
 

 
Case :- CRIMINAL REVISION No. - 770 of 2022
 

 
Revisionist :- Khalil Ahmad @ Khalil Pradhan
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Lucknow And 2 Others
 
Counsel for Revisionist :- Meenakshi Singh Parihar,Abhiuday Pratap Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Kumar Singh,J.

1. The present revision under Section 397 read with Section 401 Cr.P.C. has been filed against the order dated 8.7.2022 passed by the learned Special Judge (POCSO Act), Pratapgarh in Special Session Trial No.20 of 2015, arsing out of Case Crime No.256 of 2014, under Sections 363, 366 and 376-D IPC read with Section 5(g)/6 POCSO Act, Police Station Mandhata, District Pratapgarh.

2. An FIR at Case Crime No.126 of 2014 came to be registered on 28.9.2014 under Sections 363 and 366 IPC read with Section 6 POCSO Act on a written complaint of the father of the victim alleging that on 27.9.2014 at around 7 AM, when his minor daughter aged about 13 years, went out to defecate, the accused Sajid Ali, Abdullah, Tanseer and Jumman enticed her away.

3. The prosecutrix was recovered on 29.9.2014. In her statement recorded under Section 161 Cr.P.C., she said that she used to chew Tobacco, on which her parents would assault her. She went away from her home alone and she remained sitting in Bajra field for one night and one day. Thereafter, she went to the police station. She said that her family members were asking her to name Abdullah to have raped her. She said that since her family members had defamed her with Abdullah, she would like to go with Abdullah. Radiological age of the prosecutrix was determined to be 18 years.

4. The prosecutrix in her statement recorded under Section 164 Cr.P.C. said that she was 16 years of age. On 2.7.9.2014, she went out of her home to defecate and at that time, Kalil Ahmad @ Kalil Pradhan, the present revisionist, Sajid Ali, Abdullah and Tanseer stuffed her mouth with clothes and took her away, and threatened her that if she would raise alarm, she would be killed by gunshot. She was asked to perform marriage with accused-Abdullah, otherwise she would be killed. She was kept in a room in the night. She could not know where was she brought. Thereafter, these people left her at the police station and ran away from there. It was said that all these four persons named by her in the statement, committed rape on her. They also assaulted her. It was said that this statement was given by her on her own without any force or coercion and she would like to go with her parents.

5. The Investigating Officer, however, filed charge sheet against Abdullah under Sections 363, 366 and 376-D IPC and Section 5/6 POCSO Act. Thereafter, a supplementary charge sheet was filed against Jumman and Tanseer for the same offences under Sections 363, 366 and 376-D IPC and Section 5/6 POCSO Act.

6. After charge was framed, statement of the complainant was recorded in examination-in-chief, and he was cross-examined. Thereafter, statement of the prosecutrix was recorded in examination-in-chief, and she was also cross-examined on behalf of the the accused, who have been charge sheeted and the charge has been framed against them.

7. An application under Section 319 Cr.P.C. was filed on 24.6.2022 for summoning the present revisionist as an additional accused to face trial for the offences, for which charge was framed under Sections 363, 366 and 376-D IPC and Section 5/6 POCSO Act.

8. In the application, it was said that though the prosecutrix named the present revisionist as one of the perpetrators of the crime and in the complaint given at the police station, but the Station House Officer got his named deleted as he was influenced by the present revisionist, who was Village Pradhan. It was further said that the complainant was threatened that he should not name the present revisionist and because of his terror, the complainant did not name the present revisionist in his statement given at the police station. It was said that in the statement recorded under Section 164 Cr.P.C., the prosecutrix had specifically named the present revisionist as one of the accused for commission of the offence. Even in the evidence of the prosecutrix before the court, she had specifically named the revisionist for commission of the offence.

9. Learned trial court after considering the evidence on record i.e. the statement of the prosecutrix recorded under Section 164 Cr.P.C. and the evidence of P.W.-1 and P.W.-2 i.e. informant and prosecutrix before the court as well as the judgment of the supreme Court in the case of Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92, accepted the application under Section 319 Cr.P.C. and summoned the present revisionist for the offence under Sections 363, 366 and 376-D IPC and Section 5(g)/6 POCSO Act vide impugned order.

10. Sri H.G.S. Parihar, learned Senior Advocate, assisted by Ms. Meenakshi Singh Parihar and Mr. Abhiuday Pratap Singh, learned counsel for the revisionist submits that there is no cogent and credible evidence available on record, which if goes un-rebutted, would lead to conviction of the present revisionist for offences under Sections 363, 366 and 376-D IPC and Section 5(g)/6 POCSO Act. He further submits that the power under Section 319 Cr.P.C. is an extraordinary power, which should be exercised in exceptional cases and not in a causal and cavalier manner. The Court while exercising the power under Section 319 Cr.P.C., is required to have satisfaction on the basis of the evidence available on record for much stronger case against a person to summon him as an additional accused to face trial than prima facie case as is required at the time of framing of charge. The satisfaction should be of a degree that if the evidence goes un-rebutted, the same would lead to conviction of the person, who is sought to be arrayed as an additional accused to face the trial.

11. Learned Senior Advocate for the revisionist has further submitted that the victim/prosecutrix has merely reiterated her earlier version recorded in her statement under Section 164 Cr.P.C. and the Investigating Officer during the course of investigation, did not find her statement recorded under Section 164 Cr.P.C. as credible enough to file charge sheet against the revisionist and, therefore, the summoning order passed under Section 319 Cr.P.C. against the revisionist, is to be set aside.

12. On the other hand, Sri Anurag Varma, learned AGA has opposed the revision and has submitted that the prosecutrix had specifically named the accused-revisionist in her statement recorded under Section 164 Cr.P.C. as one of the perpetrators of the crime. She in her evidence before the Court, also reiterated the allegation made under Section 164 Cr.P.C. against the revisionist. The Investigating Officer ought to have filed the charge sheet against the revisionist considering the statement of the prosecutrix recorded under Section 164 Cr.P.C., however, it appears that the Investigating Officer was under the influence of the present revisionist as alleged in the application under Section 319 Cr.P.C. He has further submitted that evidence available against the revisionist is credible and cogent inasmuch as the prosecutrix in her statement recorded under Section 164 Cr.P.C. and her evidence before the court had specifically named the present revisionist as one of the accused, who committed the offence for which the charge has been framed. He has, therefore, submitted that the trial court finding more than prima facie case against the revisionist, has summoned him for the offences under Sections 363, 366 and 376-D IPC and Section 5(g)/6 POCSO Act, therefore, the revision is without any merit and substance, which is liable to be dismissed.

13. I have considered the submissions advanced on behalf of the learned counsel for the parties and perused the record.

14. It is true that in the FIR, the revisionist was not named as one of the accused nor in the statement of the victim recorded under Section 161 Cr.P.C. he was named as one of the accused. However, in her statement recorded under Section 164 Cr.P.C., the prosecutrix had specifically named the revisionist as one of the accused to have committed the offence. The prosecutrix not only named the revisionist in her statement recorded under Section 164 Cr.P.C., but she stood firm in her deposition before the Court also. She has named the revisionist as one of the accused, who had committed the offence on her.

15. Looking at the statement of the prosecutrix recorded under Section 164 Cr.P.C. and her deposition before the Court as well as deposition of the complainant, it cannot be said that there does not exist cogent and credible evidence against the revisionist to draw satisfaction of the existence of more than prima facie case against him. If one takes into consideration the statement of the prosecutrix recorded under Section 164 Cr.P.C. and the deposition of the complainant, P.W.-1 and the victim, P.W.-2 before the Court and it goes un-rebutted, the same would be sufficient to convict the present revisionist for the offences as mentioned above.

16. In view thereof, this Court is of the view that the view as laid down by the Supreme Court in the case of Hardeep Singh (supra) regarding existence of more than prima facie case as is required at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction, is fully satisfied in the facts and circumstances of the present case. Therefore, this Court does not find that there is any error of law or jurisdiction having been committed by the trial court in summoning the present revisionist as an additional accused to face trial.

17. In the result, the revision being without any merit and substance, is hereby dismissed.

Order Date :- 28.7.2022

Rao/-