Sandeep Singh And Another vs State Of U.P. And Another
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Allahabad High Court

Sandeep Singh And Another vs State Of U.P. And Another on 20 March, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:43548
 
Court No. - 80
 

 
Case :- CRIMINAL APPEAL No. - 5896 of 2021
 

 
Appellant :- Sandeep Singh And Another
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Ankit Srivastava,Dharmendra Kumar Singh,Indra Jit Singh
 
Counsel for Respondent :- G.A.,Virendra Kumar Shukla
 

 
Hon'ble Nalin Kumar Srivastava,J.
 

1. Heard learned counsel for the appellants, learned A.G.A. for the State and perused the material available on record.

2. This criminal appeal under Section 14-A(1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as SC/ST Act) has been preferred by the appellants Sandeep Singh and Abhishek Singh against the order dated 10.11.2021 passed by the learned Special Judge, S.C./S.T. Act, Jaunpur in Case Crime No. 124 of 2019 (Victim Vs. Sandeep), under Sections 376-D, 452 I.P.C. and Section 3(2)(v) SC/ST Act, Police Station Kerakat, District Jaunpur whereby the learned trial court summoned the accused persons Sandeep Singh and Abhishek Singh to face trial under Sections 376-D, 452 I.P.C. and Section 3(2)(v) SC/ST Act.

3. Learned counsel for the appellants submitted that the impugned judgment and order is perverse and against the law. The learned trial court erred beyond jurisdiction while rejecting the final report submitted by the opposite party no. 2 and summoning the accused appellants to face trial after taking cognizance in the matter under Sections 376-D, 452 I.P.C. and Section 3(2)(v) SC/ST Act. It is further submitted that the Investigating Officer of this case found no evidence against the appellants and that is why final report was submitted in this matter. However, the closer report No. 8/19 dated 21.08.2019 was protested by the informant by way of filing a protest petition submitted before the court. It is next submitted that after rejecting the final report and treating the protest petition as criminal complaint case in an illegal manner, the trial court on the basis of statements of the victim under Section 200 Cr.P.C. and PW-1 and PW-2 under Section 202 Cr.P.C. passed the impugned order but the evidence collected by the Investigating Officer was not taken into account by the learned trial court.

4. It is further submitted that the prosecution story as alleged is not plausible and natural at all. It is also concocted story which was stated by the victim in her statement under Section 161 Cr.P.C. Since the victim is residing in an abadi place, it was strange and matter of surprise that no witness of the same vicinity or any neighbour came to the house of the victim to help her. It is further submitted that the complainant's statement discloses the factum of preparation of some video by the appellant Abhishek Singh in connection with sexual assault but as a matter of fact, no video as claimed was submitted before the court nor the Investigating Officer collected any such obscene video during investigation. It is next submitted that PW-1 Jang Bahadur and PW-2 Soni Devi are not reliable witnesses who belong to the family of the victim herself and their presence at the house of the victim after commitment of the occurrence was not natural and probable and both the witnesses are not eye witnesses of the occurrence. Although they claim to see the persons coming out of the house of the victim but as a matter of fact, no incident was seen by the witnesses. It is next submitted that in these circumstances relying upon the statement of the complainant under Section 200 Cr.P.C. the impugned summoning order was passed.

5. It is next submitted that since the victim herself denied to be medically examined, there is no evidence on record in connection with any sexual offence. It is an admitted fact that the offence, if any, was committed in the house of the victim and not at any place within public view. It is next submitted that it is a case of malicious prosecution initiated by the victim and her family members against both the appellants. It is also submitted that the learned trial court did not consider the relevant provisions of Section 3(2)(v) SC/ST Act and essential ingredients to constitute the offence were completely missing in this case and learned trial court deliberately discarded the same. There is no evidence on record that it was known to the appellants that the victim was a member of scheduled caste/scheduled tribe and further the offence was not committed on the basis of her being a member of SC/ST community. The offence, if any, was not committed within public view and no other person except the victim had seen the occurrence.

6. It is also submitted that both the parties have previous animosity and there existed a dispute for money transaction between the parties. Earlier, Bhaiya Lal, the husband of the victim had also lodged complaint No. 112 of 2019 against Onkar Singh, father of appellant No. 1 which was subsequently dismissed in default. Moreover, an application under Section 156(3) Cr.P.C. registered as Misc. Application No. 111 of 2018 was also moved by said Bhaiya Lal against the appellants and father of the appellant No. 1 in respect of fraud and cheating to the applicant Bhaiya Lal in the year 2018 and when he failed everywhere, the instant complaint case of false allegation was preferred.

7. It is further submitted that the appellants are young persons whereas the age of the victim is 35 years and she is having five children. There are material contradictions in the statements of the victim herself under Sections 161 and 164 Cr.P.C. and also in the contents of the F.I.R. It is also submitted that the incident of this case was occurred on 12.11.2018 whereas the F.I.R. was lodged belatedly on 22.12.2018 which denotes inordinate delay in lodging of the F.I.R. without any plausible explanation for the same. It is further submitted that the husband of the victim also lodged an F.I.R. against the appellants and their family members in the year 2018 and the report in the said matter was lodged by order of the court on an application under Section 156(3) Cr.P.C. dated 04.10.2018 which shows the previous animosity between the parties.

8. Lastly, It is submitted that the impugned summoning order is unworthy of credit which includes legal and factual discrepancies, hence it is expedient in the interest of justice to set aside the impugned summoning order by way of allowing the instant appeal.

9. Per contra, learned A.G.A. vehemently opposed the present appeal and it has been submitted that it is a trite law that the trial court has ample power to summon any accused to face trial for certain offences on the basis of statements of the complainant under Section 200 Cr.P.C. and PW-1 and PW-2 under Section 202 Cr.P.C. It is further submitted that after submission of the closure report by the Investigating Officer, it is the duty of the court to send notice to the informant to give an opportunity of hearing to him and following the legal principles, the victim was given notice to be heard on the point of closure report submitted by the Investigating Officer. It is next submitted that on filing of the protest petition by the victim of this case, the learned trial court was well within its jurisdiction to hear her on the issue of final report and protest petition filed by her. After hearing, the learned Magistrate treated the protest petition as criminal complaint following the legal procedure enumerated under Chapter XV Cr.P.C. and on the basis of evidence recorded under Sections 200 and 202 Cr.P.C., the appellants were summoned vide impugned order to face trial for the offences disclosed hereinabove. On these grounds prayer has been made to dismiss the present appeal.

10. In Sampat Singh vs. State of Haryana (1993)1 SCC 561 the Hon'ble Apex Court has held that when the investigation culminates into a final report, the duty of the Magistrate or the court is to scrupulously scrutinize the report and accompaniments by applying the judicial mind either to accept or reject the final report and take cognizance.

11. It is trite law that under Section 190 Cr.P.C. the competent Magistrate may take cognizance of any offence on the following grounds:-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed.

12. Admittedly, in this case the learned trial court took the cognizance of the offence upon the complaint of the victim which constitutes such offence.

13. The learned trial court considered the statements recorded under Sections 200 and 202 Cr.P.C. and the victim corroborated the complaint story in material terms and she has specifically stated that on 12.11.2018 at 6.00 P.M. when she was all alone in her house, the accused persons entered into her house and she was threatened on pistol point for life by the appellant no. 2. She was disrobed and rape was committed upon her by both the appellants and obscene video was also prepared by the appellant no. 2. In the meanwhile, her brother and sister-in-law came to her house and she disclosed the incident to them. PW-1 Jang Bahadur and PW-2 Soni Devi, wife of Jang Bahadur came before the court and their statements were recorded under Section 202 Cr.P.C. wherein they made categorical statements that on 12.11.2018 at about 6.00 P.M. when they came to meet the victim, who happens to be sister of PW-1, they saw two persons come out of the house of the victim who fled away and then the victim disclosed whole incident to them.

14. Under Section 204 Cr.P.C. it is provided that if in the opinion of the Magistrate (Special Judge SC/ST Act) taking cognizance of an offence there is sufficient ground for proceeding and to issue summons or warrant, as the case may be, against the accused he shall issue such process.

15. What is 'sufficient ground' for proceeding to issue summons and warrant has been clarified in Nirmaljit Singh Vs. State of West Bengal, (1973) 3 SCC 753 and it is held therein that the words "sufficient ground" used in Section 203 have been construed to mean the satisfaction that a prima facie case is made out against the person accused by the evidence of witnesses entitled to a reasonable degree of credit and not sufficient ground for the purpose of conviction.

16. It is pertinent to mention here that an order passed to summon the accused is an opinion of the Magistrate and to pass a detailed order or to state the grounds of its satisfaction is not required from a Magistrate, however the summoning order must be a speaking order.

17. The factual matrix of this case is that although the victim of the case was not medically examined as she herself refused to be examined, no adverse opinion can be formed against the complainant's case, particularly in view of the statement made by the victim under Section 200 Cr.P.C. She was a married lady of a matured age having some children and she narrated the incident in the complaint explicitly and further the statements given by PW-1 and PW-2 provide help to the complainant and their statements are relevant in the light of the provisions contained under Section 6 of the Evidence Act because just after commitment of crime, both the appellants rushed out of the house of the victim and both the aforesaid witnesses reached there and they saw and stopped the appellants.

18. Since the gang rape was committed by both the appellants in the house of the victim and they are native of the same village where opposite party no. 2 is residing they were having full knowledge that the victim is a member of scheduled caste/scheduled tribe. In this way, prima facie offence under Sections 376D, 452 I.P.C. and Section 3(2)(v) SC/ST Act is made out against the appellants and the learned trial court committed absolutely no mistake in passing the order to summon the appellants to face trial for the aforesaid offences.

19. In view of the aforesaid discussion, I am of the view that there is no illegality or perversity in the order dated 10.11.2021 passed by the learned Special Judge, S.C./S.T. Act, Jaunpur. The appeal has no force and is liable to be dismissed.

20. Accordingly, the appeal is dismissed.

Order Date :- 20.3.2025

Rmk.