Court No. - 1
Case :- APPLICATION U/S 482 No. - 35616 of 2019 Applicant :- Bittu And Anr Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajeev Pandey Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Rajeev Pandey, learned counsel for the applicants, Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned order dated 01.11.2018 passed by learned First Additional District Judge, Baghpat in ST No. 18 of 2015 (State Vs. Vikas) arising out of Case Crime No. 389 of 2015 under Sections 363, 366, 376, 506 I.P.C. and Section 3/4 The Protection of Children From Sexual Offences Act, Police Station – Badaut, District Baghpat, pending in the Court of First Additional District Judge, Baghpat, whereby the application 35-B has been allowed and accused applicants have been summoned to face trial under the above mentioned sections. A further prayer has also been made to stay the effect and operation of the said order till the disposal of this application.
The main argument made by the learned counsel for the accused-applicants is that the impugned order dated 01.11.2018 has been erroneously passed by the Trial Court by which the application-35 B moved from the side of the prosecution to summon accused applicant to face trial along with co-accused in the present case has been allowed. Attention is drawn to the statement of the victim recorded under Section 164 Cr.P.C. which is at page No. 31 of the paper book in which she has stated that on the date of occurrence i.e. 04.05.2015 when she came out to meet nature's call, accused applicants along with co-accused Vikas had lifted her. Her mouth was smothered. She was taken on Yamuna river. A room was there where main accused Vikas has committed rape upon her and thereafter attention is drawn to the statement of the victim recorded as PW-2 by the Trial Court in which she has modified the said statement by alleging the commission of rape upon her by accused applicants also and it is, therefore, argued that such modification renders the statement of the victim unbelievable. Therefore, the impugned order needs to be set aside.
Learned AGA has vehemently opposed the quashing of the said order and has argued relying upon the statement of the victim given before Trial Court as PW-2 that because of clear statement on behalf of the victim that she was raped by the accused applicants also along with the main accused, the same would be treated to be sufficient evidence on record to summon the accused applicants and trial court has not committed any error in passing the impugned order.
On perusal of the order impugned passed by the Trial Court, I find that the Trial Court has recorded therein that in the First Information Report names of the accused applicants were mentioned by Pappu, the father of victim and in the statement under Section 164 Cr.P.C. she had taken the name of only Vikas, while in respect of accused-applicants it was mentioned that they were instrumental in lifting her away up to Yamuna River and in the statement as given by the victim as PW-2, she has clearly levelled the allegation of rape on accused applicants also. If the said allegation remains unrebutted, there remains stronger possibility of the accused applicants being convicted and in such situation the said application has been allowed by the impugned order relying on the law laid down in the case of Hardeep Singh Vs. State of Punjab and others, (2014) 85 SCC 313 which provides that there should be stronger evidence against the accused who is being summoned to face trial. The relevant para of the said judgment is reproduced below:-
"99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."
In view of the above position of law, I find that if the statement of the victim recorded as PW-2 if left unrebutted, it would certainly result into conviction of the accused- applicants. The role of the accused applicants appears to be there right from very beginning as the same was mentioned in the First Information Report and subsequently whatever modification is made out, the same would be scrutinized during the trial. At this stage, this Court does not find that there is any infirmity in the impugned order. Hence, the impugned order deserves to be upheld and the Application under Section 482 Cr.P.C. is accordingly rejected.
However, the applicants may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, they may raise all the pleas which have been taken by them here.
The applicants shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law.
For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
Order Date :- 25.9.2019 LBY