Rinkal Upadhyay vs State Of U.P. And Another
2022 Latest Caselaw 3694 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 73
 
Case :- CRIMINAL REVISION No. - 2404 of 2021
 
Revisionist :- Rinkal Upadhyay
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Anjani Kumar
 
Counsel for Opposite Party :- G.A.,Jitendra Kumar Mishra
 
Hon'ble Rajiv Gupta,J.

Heard learned counsel for the revisionist, learned AGA for the State and Sri Prem Shanker holding brief of Sri Jitendra Kumar Mishra, learned counsel for the opposite party No. 2.

Learned AGA has filed counter affidavit on behalf of the State today in Court, which is taken on record.

Learned counsel for the revisionist do not propose to file any rejoinder affidavit and prays that the revision be disposed of at the admission stage itself.

This criminal revision has been filed against the order dated 18.9.2021 passed by ADJ/Fast Track Court-I, Varanasi, by which the application filed by the revisionist-applicant for discharging him under Section 227 Cr.P.C. has been rejected.

Brief facts of the case giving rise to this application are that 'X' has lodged first information report on 4.6.2018 at police station Shivpur, Varanasi, which has been registered vide Case Crime No. 337 /2018, under Sections 376, 354B, 323, 504, 506 IPC alleging therein that she is a resident of Flat No. E-18, Kamayani Colony Pishachmochan, P.S. Shivpur, District- Varanasi and she very often used to visit Bhojubeer beauty parlour, wherein one Romi Upadhyay also used to come and in course of time, she developed acquaintance with her. After sometime, Romi Upadhyay started visiting the beauty parlour alongwith his brother Rinkal Upadhyay, where she met him and developed intimate relations with him. The said Rinkal Upadhyay on pretext of marrying her started making physical relations with her. The relations between two were also known to his parents and his family members, who were ready to marry him with the first informant. On account of physical relations between them, she got pregnant, the information of which was given by the first informant to the family members of Rinkal Upadhyay who asked them to solemnize their marriage as early as possible. Her family members also agreed to the said marriage.

It is further alleged that on 17.3.2018, Rinkal Upadhyay threatened her that only with an intention to satisfy his lust, he had made physical relations with her and will not marry her and asked to get her pregnancy terminated, the expenses of which, shall be borne by him. On 20.03.2018 at about 7 p.m., the first informant visited his house and made complaint to his father, on which he got enraged and said that his son is not bound to marry her and she is only his kept and thereafter, he tried to outrage her modesty and on raising alarm, number of persons reached there, where Anita Upadhyay and Romi Upadhyay, mother and sister of Rinkal Upadhyay and his father started abusing her and assaulted her with kicks and fists and asked her to leave his house and extended death threats to her. On the basis of said allegations, first information report was lodged.

After lodging of the first information report, Investigating Officer recorded the statement of the witnesses under Section 161 Cr.P.C. including the victim herself and thereafter, statement of the victim under Section 164 CrPC was also recorded before the Magistrate, in which, she again categorically reiterated the prosecution story as mentioned in the first information report and her statement recorded under Section 161 Cr.P.C. and further stated that on 20.3.2018, applicant's father not only assaulted her but also tried to touch her inappropriately and outrage her modesty.

It is further stated therein that on 12.5.2018, the police of police station Sigra got the dispute compromised between the parties and on 13.5.2018, Rinkal Upadhyay again came at her house and asked her to make physical relations with him and on her refusal, he assaulted her mercilessly. Consequently, she gave a call to the police, who reached at his house and arrested the applicant Rinkal Upadhyay.

It is further stated that on account of assault made by Rinkal Upadhyay, the victim 'X' suffered serious injuries and started bleeding resulting in her miscarriage. Since, applicant Rinkal Upadhyay used to threaten her, as such, she lodged report at police station- Shivpur and on account of the said incident, her mother suffered cardiac arrest and died. After concluding the entire investigation, the Investigating Officer submitted charge sheet only against the applicant, on the basis of which, the learned Magistrate has taken cognizance and thereafter, committed the case to the Court of Sessions.

At this stage, the applicant moved an application under Section 227 Cr.P.C. for discharging him for offence under Sections 376, 354-B, 323, 504, 506 IPC before the court below. The said application was heard by learned Addl. District Judge/Fast track Court-I, Varanasi, who vide his order dated 18.9.2021 has rejected the said application by holding that the scope of interference at the stage of 227 Cr.P.C. is very limited and the Court is not required to analyze the entire evidence at this stage. Even on grave suspicion, charges can be framed against the applicant as held by the Hon'ble Apex Court in the case of State of Orissa v. Devendra Nath Padhi reported in 2005 (1) JIC 289 (SC).

Being aggrieved and dissatisfied by the said order, the revisionist-applicant has preferred this revision.

Learned counsel for the revisionist has submitted that the revisionist is wholly innocent and has been falsely implicated in the present case due to ulterior motive. He next submitted that even from the statement of the witnesses recorded under Section 161 Cr.P.C. and from the statement of the victim recorded under Section 164 Cr.P.C., no offence whatsoever is disclosed against the revisionist and as such, the revisionist is liable to be discharged at this stage itself by allowing the present revision.

In order to buttress his argument, learned counsel for the revisionist has relied upon the judgment of Hon'ble Apex Court passed in Criminal Appeal No. 223 of 2021, Sonu @ Subhash Kumar vs. State of U.P. & another.

Per contra, learned AGA as well as learned counsel for the opposite party No. 2 has opposed the prayer and has submitted that from the perusal of the allegations made in the first information report and the statement of the witnesses recorded under Section 161 Cr.P.C. and that of the victim recorded under Section 164 Cr.P.C., it cannot be said that no offence is made out against the revisionist-applicant. Specific allegations of making physical relations with the victim with an intention to satisfy his lust, has been made against the revisionist-applicant and the revisionist-applicant continued to satisfy his lust till the victim became pregnant and on making complaint, the revisionist-applicant made engagement with the victim on 20.3.2018 and on which day, the revisionist-applicant is said to have taken her to his house, where his father tried to outrage her modesty and touched her inappropriately when the revisionist-applicant had gone to bring cold drink for the victim. On alarm being raised by her, the applicant's mother and sister reached there and started abusing her. On return of the applicant, victim disclosed him about the conduct of her father then revisionist-applicant started blaming the victim and refused to marry her. The victim returned back to her house and made a complaint to the police. However subsequently with the help of the police, compromise was made between the parties on 12.5.2018 and again on 13.5.2018, the revisionist-applicant reached at her house and tried to make physical relations with her and on her refusal, assaulted her mercilessly causing her miscarriage. On complaint being made to police, it reached at the house of applicant and arrested him. Later when mother of the victim came to know about the said incident, she suffered cardiac arrest and died.

Learned AGA and counsel for the opposite party No. 2 has further submitted that from the allegations made in the statements of the witnesses recorded under Section 161 and 164 Cr.P.C. prima facie offence is clearly made out against the applicant. The court below has considered the entire material on record in right perspective and by well reasoned and speaking order, has rightly rejected the discharge application of the applicant. The said order does not suffer from any illegality, impropriety or jurisdictional error and as such, the present revision is liable to be dismissed.

Having considered the rival submissions made by learned counsel for the parties and taking into consideration the entire allegations made in the FIR and the statement of the witnesses recorded under Section 161 Cr.P.C. and that of the victim recorded under Section 164 Cr.P.C. which has been discussed above, it cannot be said that no offence whatsoever is made out against the revisionist-applicant.

Moreover, the judgment relied upon by learned counsel for the revisionist is clearly distinguishable on the facts of the case. In the said judgment, the statement of the victim recorded under Section 164 Cr.P.C. has been quoted, which is in complete contrast to the statement of the victim recorded under Section 164 Cr.P.C. in the present case and looking to the said statement of the victim, she cannot be said to be a consenting party.

It is trite that only a prima facie evidence is to be seen and the Court cannot embark upon a roving enquiry at this stage, particularly when the entire evidence is yet to come.

It is well settled principle of law as held by the Hon'ble Apex Court in the case of State of Odisha vs. Pratima Mohanty in Criminal Appeal No. 1456 of 2021, wherein it has been held that at the stage of discharge or consideration of application under Section 227 Cr.P.C., the Court is not required to go into the merits of the allegations and/or evidence in detail as if conducting the mini trial.

It is also to be noted that at the stage of discharge the court has to consider the material only with a view to find out if there is sufficient ground for proceeding against the accused.

In the case of State of Madhya Pradesh Vs. Deepak reported in AIR (2019) SC 5604, the Hon'ble Apex Court has held that :

"It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for presuming that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."

"Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that the judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused. The ground in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record. If generally accepted, would reasonably connect the accused with the crime."

In view of the above and taking into consideration the entire evidence and material on record, it cannot be said that at this stage there is no sufficient ground for proceeding against the accused particularly when the entire evidence is yet to come. The impugned order passed by the court below in view of the settled proposition of law do not suffer from any illegality, impropriety or jurisdictional error and is just, proper and legal in the facts of the case.

The present revision therefore, lacks merit and is accordingly dismissed.

Order Date :- 23.5.2022

KU