Susheel Kumar Dixit vs State Of U.P. And 2 Others
2023 Latest Caselaw 14338 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Neutral Citation No. - 2023:AHC-LKO:31862
 
Court No. - 28
 

 
Case :- CRIMINAL APPEAL No. - 2292 of 2019
 

 
Appellant :- Susheel Kumar Dixit
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Hari Bux Singh,Ashwani Kumar Dwivedi
 
Counsel for Respondent :- Govt. Advocate,Ajeet Kumar Singh
 

 
Hon'ble Shree Prakash Singh,J.

Heard Sri Hari Bux Singh, learned counsel for the appellant, Sri Anirudh Kumar Singh, learned A.G.A.-I for the State and perused the material available on record.

By means of the instant appeal the appellant has challenged the order dated 05.11.2019 passed by Special Judge POCSO Act/ Additional Sessions Judge, Court No.12 Hardoi summoning the appellant U/s 376D I.P.C., 3/4 POCSO Act & 3(2)(5) of the SC/ST Act.

As per the factual matrix of the case, the prosecutrix was taken away by the four accused persons namely Uttam, Avdhesh, Om Pal and Ram Swaroop and thereafter, they committed rape with the prosecutrix. This incident is said to have taken place on 21.03.2017 and the F.I.R. was lodged on 10.04.2017 though the statement of the prosecutrix was recorded on 25.05.2017 when she was recovered.

The contention of the learned counsel appearing for the appellant is that the F.I.R. is delayed by 20 days as the F.I.R. has been lodged on 10.04.2017 though the incident is said to have taken place on 21.03.2017 and the name of the present appellant is not mentioned in the first information report. Adding his arguments, he submits that thereafter, the statement of the victim was recorded as supplementary statement wherein she clarifies the name of the present appellant as Shushil Pradhan in place of 'Suneel'. He added that there is no such provision in the Code of Criminal Procedure for recording the supplementary statement. Further submission is that the statement of the complainant i.e. the father of the prosecutrix was also recorded by the Investigating Officer and the Investigating Officer, after thorough investigation, it was found that the appellant was not involved in committing any offence. He added that the statement of the prosecutrix including the statement of the chance witnesses and the complainant was before the Investigating Officer and no substantial evidence was found. He next added that even in the supurdginama and up to the statement of the prosecutrix before the trial court, the name of the present appellant was not actually came into light and the name of Suneel was there and thereafter, once she clarified the same in the supplementary statement, though also not correct as Shushil has never been elected as a pradhan. He further added that the learned trial court while passing the impugned order did not record any finding on the basis of which present appellant has been summoned.

In support of his contention, he has placed reliance on the Judgment of Apex Court in the case of Hardeep Singh Vs. State of Punjab and Others, reported in [(2014) 3 SCC 92] and has referred the paragraph no. 117.5 of the said Judgment, wherein the question no.(iv) has been answered. Para no. 117.5 of the said judgment is quoted hereinunder :-

"Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign anaccused? Whether the power under Section 319 (1) Cr.PC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

117.5. Though under Section 319(4) (b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused: Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different."

He has next placed reliance on the Judgment of Brijendra Singh and Others Vs. State of Rajasthan, reported in [(2017) 7 SCC 706] and has referred paragraph no. 15 of the aforesaid Judgment, which is extracted hereinunder :-

"15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination- in-chief, with no other material to support their so-called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.PC. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the 10 during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that thetrial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."

He further added that the degree of the satisfaction has to be recorded by the trial court while calling an accused person, invoking the jurisdiction under Section 319 Cr.P.C. Concluding his argument, he submits that there was no more than prima facie case was available before the trial court to summon the present appellant and thus the order dated 05.11.2019 is not only perverse but is against the law enunciated by the Apex Court and thus, the same is liable to be set aside.

He next added that the age of the prosecutrix was more than 18 years at the time of incident.

On the other hand, learned counsel appearing for the State has vehemently opposed the aforesaid contention and has drawn attention of the Court that the prosecutrix in her supplementary statement clarified the name of the present appellant as Shushil Pradhan in place of Suneel and that could have been explained in the supplementary statement. He next added that the prosecutrix in her statement on 10.08.2018 before the trial court has named the present appellant and has stated that in District Hardoi, Shushil Pradhan met to her and has committed rape in a room. He submits that the statement of PW-2 before the trial court cannot be disbelieved by the trial court and this was a material which has the statement of the prosecutrix and a supplementary statement is a basis to decipher that there was a much stronger evidence against the present appellant and thus, the ratio of the judgment of Hardeep Singh (supra) as well as Brijendra Singh (supra) would not apply in the instant matter and the submission is that there is no merit in the case and the instant appeal is liable to be dismissed.

Considering the submission of learned counsel for the parties and after perusal of material placed on record, it transpires that the learned trial court while passing the impugned order has very specifically mentioned the statement of the prosecutrix recorded as PW-2 before it. In the statement of the prosecutrix, it borne out that there are specific allegation of committing rape by the present appellant. So far as the differences in the name is concerned, that was later on clarified in the supplementary statement of the prosecutrix, though there can be a slight difference in the name like Shushil Pradhan or Suneel and that can be seen at the time of the trial before the trial court. Further, learned counsel has placed reliance on a judgment of Hardeep Singh (supra) as well as Brijendra Singh (supra) wherein, in so many words, it has been held by the Apex Court that if the trial court feels that there is a much stronger case or there is such a material which can satisfy the degree of satisfaction then the jurisdiction under Section 319 Cr.P.C. can be invoked.

When this Court examines the aforesaid statement of the prosecutrix as well as the finding recorded by the trial court in the summoning order under challenge, it is apparent that the trial court in its finding has taken into consideration, the statement of the victim/prosecutrix under Section 164 Cr.P.C. as well as supplementary statement including the statement as PW-2 before the trial court. The statement of the prosecutrix as PW-2 was not before the Investigating Officer and therefore, once the allegation naming the present accused for committing the rape came for the first time before the trial court then the trial court considering it as a much stronger evidence against the appellant has summoned him.

Consequently, this Court finds that there is no illegality or infirmity in the order dated 05.11.2019 passed by the trial court and thus, the instant appeal is hereby dismissed. The trial court is directed to proceed further in this matter.

Order Date :- 8.5.2023

Saurabh Yadav/-