DEEPENDRA Vs. STATE OF U. P.

JUDGEMENT

(1.) Heard learned counsel for the revisionists, learned AGA for the State and learned counsel for opposite party no.2 the first informant.

(2.) This criminal revision has been filed against the order dtd. 20/5/2022 passed by Special Judge (Exclusive Court POCSO Act)/ Additional Sessions Judge, Etah in S.T. No.736 of 2021 (State vs. Himanshu) U/s 323, 504, 354 Kha, 376/511 IPC and 7/8 POCSO Act, P.S. Mirhachi, District Etah. By the impugned order, the learned court below on an application u/s 319 Cr.P.C. has summoned the revisionist Ravi alias Ravindra and Deependra to face trial with co-accused for offence U/s 323, 504, 354 Kha read with Sec. 34, 376/511 IPC and 7/8 POCSO Act. The FIR of this case was lodged on 20/5/2021 by father of the victim alleging therein that on 17/5/2022 her minor daughter aged about 13 years has gone out to throw garbage at the field. In the maize field, Ravi alias Ravindra, Deependra and Himanshu were lying in ambush and they caught his daughter with intention to commit rape. His daughter put resistance then all the three accused assaulted her causing her injuries. They also put her down and tried to disrobe her. On her cries Ram Avtar (the brother of the complainant) and Veer Pratap his nephew came at the spot. Seeing them all the three accused ran away. After investigation, charge sheet was submitted only against Himanshu. During trial, the complainant and victim were examined as P.W.-1 & P.W.-2 and another witness Ram Avtar as P.W.-3. Thereafter, the prosecution moved an application U/s 319 Cr.P.C. to summon the other named accused of the FIR namely Ravi alias Ravindra and Deependra. The learned trial court by the impugned order, has allowed the application.

(3.) Learned counsel for the revisionist contended that during investigation, the Investigation Officer has recorded the statements of some independent witnesses who have totally denied the involvement of the revisionist in the alleged incident. Some of the villagers also submitted their affidavits to SSP stating the true facts of the case and these affidavits are also part of the case diary. After concluding the investigation, the Investigating Officer found that the revisionist were not involved in the alleged incident and omitted their names and charge-sheet was submitted only against main accused Himanshu. It is also contended that at the time of alleged incident the revisionist were not present at the place of incident. They were present at the house of one Ashok from 6:30 pm to 7:30 pm to attend the last rituals of the father of the Ashok and from where they returned to their respective homes. The involvement of the revisionist was not found in the alleged incident. the learned court below on the basis of statements of complainant P.W.-1 (the victim), P.W.-2 and other witness Ram Avtar (P.W.-3) came to the conclusion that the revisionist were also involved in the alleged incident and has summoned them by the impugned order exercising its power U/s 319 Cr.P.C. While passing the impugned order, the learned court below completely failed to take into consideration that no strong and cogent evidence was present against the revisionist and summoned them in a casual and cavalier manner. The learned court below also completely ignored and overlooked the evidence collected during investigation and has not considered them at all at the time of passing the impugned order. The learned counsel placed reliance on the case laws of Brijendra Singh vs. State of Rajasthan 2017 0 Supreme (SC) 411 and vide order dtd. 6/7/2022 of this court passed in criminal revision no.415 of 2022 (Sudhir vs. State of U.P. and another).