Court No. - 65
Case :- APPLICATION U/S 482 No. - 35644 of 2019 Applicant :- Jawahir Yadav Opposite Party :- State Of U.P. And 2 Ors Counsel for Applicant :- Vinod Kr Pandey Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Vinod Kr Pandey, learned counsel for the applicant and Sri Attrey Dutt Mishra, learned A.G.A. for the State are present.
This application under 482 Cr.P.C. has been filed with a prayer to quash the order dated 17.07.2019 passed by Additional Sessions judge, Court No. 3/Special Judge (P.O.C.S.O. Act) Varanashi in S.T. No. 115 of 2018 (State Vs. Jawahir Yadav and others) by which he framed the charges against the applicant under Sections 363, 366, 376D, 504, 506 I.P.C. and 3/4 P.O.C.S.O. Act, arising out of Case Crime No. 284 of 2019, Police Station Bhelupura, District Varanasi with a further prayer to stay the further proceeding of the above said case.
Learned counsel for the applicant has argued that the charges framed by the trial court vide order dated 17.07.2019 are wrongly framed as there was no evidence on record to frame such charges. He has drawn attention to the statement of the informant Mohd. Imran Khan at page 32 of the paper book in which he has stated that the victim was running sick for last 2 1/2 years, her treatment was going on and she was behaving like a mad person. He has drawn attention to consent letter which was supposed to be given by the victim for being medically examined which is annexed on page 45 and the said paper suggests that she had refused to get herself medically examined. Next he argued that in the injury report no bleeding or sign of injury has been found to have been caused to the victim which belies the prosecution case of commission of gang rape upon the victim by the accused applicant. Attention is drawn to second statement of the informant at page no. 48 in which it is clearly mentioned that the co-accused Saif Khan used to meet her sister stealthily and on 12.04.2019 when she was returning from coaching along with her friend Saumya, the accused applicant along with his friend Saif Khan had enticed away the victim.
Later on her sister had given the name of all those persons who were Soeb, Jawahir (applicant) and Ashok and that her sister was aged about 16-17 years, hence a minor. was abducted by these persons. It was argued that the said statement is an improvement of the earlier statement, which makes prosecution story false. Hence, the impugned order framing the charge needs to be quashed.
On the other hand, learned A.G.A. has drawn attention to the recovery memo on page 107 which clearly indicate that the place where alleged offence was committed, condomes were recovered. Attention was also drawn to page 109 of the paper book in which it was mentioned that there were C.C.T.V. footage in respect of this occurrence. Therefore, if these pieces of evidence are taken into consideration, the charges under above mentioned Sections would be made out.
To this argument, in rebuttal, it was argued by the learned counsel for the applicant that the recovery memo was undated, hence, it should not be taken into consideration.
Reliance may be placed upon law laid down by the Hon'ble Apex Court in Amit Kapoor vs Ramesh Chander & Anr (2012) 9 SCC 460 in which it has been laid down that at the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt cannot be applied at this stage. If the said test is applied in the present case I find that the trial court has rightly found that there is sufficient material on record to frame charge against the accused-applicant under above mentioned Sections. I find no infirmity in the impugned order, in the light of the statement given by the victim under Section 164 Cr.P.C.
In view of above, I find that the evidence which has been gathered by the prosecuting agency particularly the statement of the victim as well as the recovery memos which are being disputed is a subject matter of the trial. At this stage, it cannot be denied that there was no sufficient evidence to frame the charges This application is dismissed at the admission stage itself.
Order Date :- 25.9.2019 VPS