Court No. - 49
Case :- APPLICATION U/S 482 No. - 2346 of 2021 Applicant :- Sahil Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kuldeep Singh Chahar Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Heard Sri Kuldeep Singh Chahar, learned counsel for the applicant and Sri Vikas Goswami, learned AGA for the State.
2. This Application has been filed seeking quashing of the entire criminal proceedings of Special Case No.180 of 2020 (State Vs. Sahil) related to Case Crime No.0691 of 2019, under Sections 452, 307, 354, 326 IPC and 7/8 of POCSO Act, Police Station- Etmadaula, District-Agra arising out of impugned charge-sheet dated 07.02.2020.
3. Learned counsel for the applicant submits that FIR was lodged on 09.09.2019 registering Case Crime No.691 of 2019, under Sections 452 and 307 IPC. Thereafter, statements of the victim were recorded on 01.11.2019. On 07.11.2019, her statement was recorded under the provisions of Section 164 Cr.P.C., in which she categorically mentioned that Sahil had not shown any misdemeanor towards her but had fired a shot towards her house and after that she had gone into depression.
4. Learned counsel for the applicant submits that showing an incident to had taken place on 03.11.2019, medical was conducted on 25.11.2019 and, thereafter, on the basis of a 'Majeed Bayan' (further statement) available along with (Annexure-5) charge-sheet, new sections namely 354, 326 IPC and 7/8 of POCSO Act have been added, in which learned court below has asked the applicant vide impugned order dated 30.11.2020 to appear and obtain bail under the provisions of Section 326 IPC and 7/8 of POCSO Act, for which purpose bailable warrants to the tune of Rs.10,000/- has been issued against the applicant.
5. Applicant's contention is that, once statement of the prosecutorix was recorded under Section 164 Cr.P.C. on 07.11.2019, then it was expected and natural that she should have narrated, if any incident had taken place against her on 03.11.2019. It is submitted that this lapse has been sought to be fulfilled by taking a 'Majeed Bayan' (further statement), which is not admissible in evidence and, therefore, applicant cannot be forced to face trial under the provisions of Section 326 IPC and 7/8 of POCSO Act.
6. It is also submitted by Mr. Chahar that if another incident had taken place, then complainant was free to lodge another FIR under Section 154 Cr.P.C. and that another incident could not have been tagged with the present case on the basis of a 'Majeed Bayan' (further statement).
7. Sri Vikas Goswami, learned AGA in his turn, submits that there is sufficient material on record to prosecute the present applicant under Section 326 IPC and 7/8 of POCSO Act. Reading statements given by the prosecutorix under Section 161 Cr.P.C. as were recorded on 01.11.2019, it is pointed out that she categorically stated that Sahil on several occasions had intercepted her and threatened that he will kill her family members; many a times, he had tried to throttle her with a view to kill her. She also categorically mentioned that there was another friend, who use to accompany Sahil, but his name is not known to her. She further deposed on 01.11.2019 itself that she was depressed due to the acts of Sahil and was under treatment. She further deposed that on 09.09.2019, a gunshot was fired at her place with a view to kill them.
8. It is further submitted that as far as 164 Cr.P.C. statements of the victim are concerned, she has categorically admitted that Sahil was studying with her in coaching. He use to threaten her for making friends with him. One of his friends had fired a gunshot with 'Tamancha' (countrymade pistol) so to extract a confession for love on the part of the victim. Thereafter, she has admitted that a gunshot was fired towards her house. She has also admitted that she was under continuous fear and had gone into depression. When read with 'Majeed Bayan' (further statement) reveals that, in 'Majeed Bayan' (further statement), victim has categorically mentioned that, when her statement was recorded in the court before the Magistrate because of anxiety, she could not reveal that Sahil had tried to outrage her modesty and had hit her left ear with a fisted blow, as a result of which, she had suffered loss of hearing in her left ear, for which medical was made.
9. When these documents are taken into consideration, and it is seen that there is continuity of stalking an attempt to outrage modesty tempered with colours of violence, then the submission made by learned counsel for the applicant that a separate FIR should have been lodged under Section 154 Cr.P.C. or at least a complaint should have been given in writing for an incident, which took place on 03.11.2019 is not made out, inasmuch as, it is an admitted fact that the present applicant was a coaching-mate of the victim. He was continuously following her, stalking her and was trying to force her to enter into a friendship, for which purpose, he was continuously stalking the victim. If there is any minor omission in the statements under Section 164 Cr.P.C., then that will not be such a fatal blow so to quash the charge-sheet, inasmuch as, applicant has failed to make out any ground given under sub para-7 of para 102 of the judgment rendered by Supreme Court in case of State of Haryana and others Vs. Bhajan Lal and others; 1992 SCC (Cri.) 426, therefore, Application fails and is dismissed.
Order Date :- 29.7.2021 Ashutosh