Allahabad High Court
Ram Abhilakh Rajaram Patel @ Ram ... vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 9 April, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:19921
Court No. - 12
Case :- CRIMINAL REVISION No. - 374 of 2025
Revisionist :- Ram Abhilakh Rajaram Patel @ Ram Abhilash Patel And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Revisionist :- Ashok Kumar Srivastava,Avinash Srivastava,Pragya Bhushan
Counsel for Opposite Party :- G.A.,Sheela Baidya
Hon'ble Alok Mathur,J.
1. Heard Sri Avinash Srivastava, learned counsel for applicant as well as learned A.G.A. for respondent No. 1 and Ms. Sheela Baidya, learned counsel for respondent No. 2.
2. By means of present criminal revision under Section 397 read with Section 401 of Cr.P.C. / Section 438 read with 442 of B.N.S.S., the revisionists have assailed the order dated 30.01.2025 passed by Special Judge, POCSO Act / Additional District Judge, District Pratapgarh in Special Session trial No. 1404 of 2020 (State Vs. Radheyshyam Verma), arising out of case crime NO. 643/2020 Under Sections - 363, 366, 376, 120B IPC, Police Station - Kotwali City, District Pratapgarh.
3. It has been submitted by learned counsel for revisionists that a first information report was lodged on 24.07.2020 in Case Crime N. 643/2020 U/S 363, 366, 376, 120B IPC and 7/8 POCSO Act, Police Station - Kotwali City, District - Pratapgarh alleging that daughter of the informant had gone to the field to sow rice on 10.07.2020 and had not returned after collecting the fodder. It was further stated that all the efforts to search the daughter was made but were in vain and subsequently they came to know that Radheyshyam Verma and Vijay Verma, sons of Rajaram, Ajay, Anuj sons of Radheyshaym have enticed her daughter away. Subsequently the prosecutrix i.e. daughter of the complainant was recovered and a statement under Sections 161 and 164 of Cr.P.C. were recorded.
4. In the statement under Section 164 Cr.P.C. which is on record where it was stated the prosecutrix is studying in Class-10th and on 10.07.2020 at around 6.00 p.m. she had gone to the field where Ajay Patel S/o Radheyshyam Patel and Anuj Patel S/o Radheyshyam Patel who were already available in the said filed where they caught hold the prosecutrix from behind and forcibly took her to a house where she was sexually assaulted by Radheyshyam Patel, Vijay Patel (Applicant No. 2) s/o Rajaram and Ram Abhilash Patel (applicant No. 1) S/o Rajram. It was further stated that one Arti Patel D/o Radheyshyam was also there on the said spot who poured kerosin oil while Ajay Patel was threatened her with a country-made pistol and they continuously sexually assaulted her for three days and after the said period they sprinkle some medicine over her due to which she made unconscious and the applicants taken her in a black car and subsequently she was recovered and the statement was recorded.
5. It is stated that during investigation despite the fact that name of the applicants had come up in the statement of the prosecutrix with regard to the allegations levelled but the charge-sheet was not filed against the applicants. It is during the trial that the statement of the prosecutrix has been recorded as P.W. - 2. In the said statement, the prosecutrix has reiterated her statement which was taken before the Magistrate under Section 164 Cr.P.C. where there is a categorical statement of involvement of the applicants with the said offence and accordingly the trial court on fining that there is consistent statement made by the prosecutrix in the statement U/S 164 Cr.P.C. as well as in the trial as P.W. 2 that the application U/S 319 Cr.P.C. has been allowed and the applicants have been summoned to face the said trial.
6. The trial court in the order dated 30.01.2025, the said application has been allowed and after due consideration and discussion of the material on record as well as relevant case law, the court found that there is a clear and categorical involvement of the applicants with regard to the allegations levelled by the prosecutrix and accordingly they have been summoned to join in the said trial in exercise of powers under Section 319 of Cr.P.C.
7. Learned counsel for applicants submits that the impugned order dated 30.01.2025 is illegal and arbitrary inasmuch as the trial court should have considered all the facts which were available including the material which have been brought forth during investigation by the police. By not considering the entire material, the trial court has acted in an arbitrary manner and accordingly it can be stated that the order has been passed without any application of mind and consequelty is liable to be set aside. In support of his submissions he has relied upon the judgment of the Supreme Court in the case of Brijendra Singh and Ors. Vs. State of Rajasthan (Criminal Appeal No. 763/2017) to bring on the point that at the stage of issuing summons or allowing the application under Section 319 Cr.P.C., the trial court apart from considering the statement brought on record during trial would be at liberty to consider all the evidence which is on record including the evidence which has been recorded during investigation by the police. He further submits that the facts stated by the prosecutrix are improbable as all the accused are of family members.
8. It has been vehemently submitted that during investigation the Investigating Officer has opined that during previous litigation between the applicants and the complainant, the allegations levelled against the applicants would be male fide and only on this ground the name of the applicants were excluded during trial.
9. Learned counsel for private respondents has opposed the application.
10. It has been submitted that even in the case of Hardeep Singh versus State of Punjab, (2014) 3 SCC 92, the Supreme Court has clearly held that the trial court would be under a duty to consider the evidence which has been recorded during the course of trial and such evidence should be more than a mere reference.
11.The law with regard to exercise of power under Section 319 of Cr.P.C. have been duly considered by the Supreme Court in the case of Brijendra Singh (supra), where they affirmed the law laid down by the previous judgment of the Supreme Court in the case of Hardeep Singh (supra), the relevant portion is quoted here-in-below for ready reference:-
"11. In Hardeep Singh's case, the Constitution Bench has also settled the controversy on the issue as to whether the word 'evidence' used in Section 319(1) CrPC has been used in a comprehensive sense and indicates the evidence collected during investigation or the word 'evidence' is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the Court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court. The word "evidence" has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. At the same time, this Court cautioned that the duty and obligation of the Court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Court also clarified that "evidence" under Section 319 CrPC could even be examination-in-chief and the Court is not required to wait till such evidence is tested on cross-examination, as it is the satisfaction of the Court which can be gathered from the reasons recorded by the Court in respect of complicity of some other person(s) not facing trial in the offence."
12. It is stated that a perusal of the statement of the prosecutrix would clearly indicate involvement of the applicants in the said offence in unequivocal and uncategorical manner. From the said statement, it is clear that there is clear allegation that applicants were involved in committing sexual assault the prosecutrix for the three consecutive days and subsequently one of the applicants had taken the prosecutrix in black car and left her in unconscious stage. Accordingly, it cannot be said that it is only as a matter of passing reference that the name of the applicants have been included but there are clear and cogent material for allowing the applicant U/S 319 of Cr.P.C.
13. This Court has perused the impugned order where also the trial court has considered the statement of the prosecutix in great detail with regard to the allegations levelled against the applicants and found that the implication against the applications are very clear and unequivocal and it is only after considering the aforesaid statements that the application under Section 319 Cr.P.C. has been allowed. Accordingly, considering the material on record which is in form of the statement of the prosecution witness which has been brought on record this Court finds that there were sufficient material for allowing the application U/S 319 Cr.P.C.
14. The other arguments with regard to previous history of civil litigation and other material pertaining to the alibi of the applicants doing at some other place are in manner of defense which may be taken by the applicants at the appropriate stage during trial. Even the arguments are factual in nature and no definite finding can be recorded by this court in the present proceedings. In light of the above, this Court does not find any ground for interference, the applications is dismissed.
(Alok Mathur, J.)
Order Date :- 9.4.2025
Ravi/
