The accused's submission at the stage of framing of charges is limited to the material produced by the prosecution, and the victim's testimony during trial cannot be considered at the stage of discharge application.

JUDGMENT :

1. As per office report dated 27.05.2022, notice was served on opposite party No. 2, as per report of C.J.M. Ghaziabad, but none appeared on his behalf to contest present revision.

2. Revisionist appeared in-person before the Court.

3. Heard the submissions of revisionist learned A.G.A. for the State and perused the record.

4. Instant criminal revision has been preferred against order dated 02.03.2022, passed by learned Special Judge (POCSO Act) Court No. 2/Additional Sessions Judge, District-Ghaziabad in Criminal Case No. 162 of 2017, arising out of Case Crime No. 483 of 2017, under Sections 342, 376, 511, 506 I.P.C. and Section 5/6 POCSO Act, P.S. Modi Nagar, District-Ghaziabad, whereby the learned court rejected the application 14Kh by impugned order wherein the revisionist-accused had prayed for his discharge under Section 227 Cr.P.C. The F.I.R. has not been lodged in the case by parents of the victim but by one Brijendra Kumar Tomar, Fufa of the victim. The case has been concocted against the revisionist by said uncle of victim, the victim was around 8 years of age at the time of incident and presently, she is around 15 years, in fact, she has been used by her said uncle to depose against the revisionist during investigation. But after dismissal of discharge application by impugned order, case was fixed for evidence and the victim in her statement as P.W. 3 recorded on 03.03.2023 by trial court, has deposed that at the time of incident, she was of 9 years of age, the incident occurred on 17.07.2017 at 12:00 hours in the noon. She had not identified the accused person in the court, she also stated that he did nothing against her, he never threatened her with life, her medico-legal examination was conducted at the instance of police. She was confronted with statement under Section 164 Cr.P.C. wherein she acknowledged her signature and photograph. The witness has been declared hostile at the instance of prosecution. He next submitted that learned court below framed charges against him initially under Sections 342, 376, 511, 506 I.P.C. and Section 5/6 POCSO Act on 19.01.2021. This Court vide order dated 07.12.2021 in Application under Section 482 No. 12347 of 2021 set aside order dated 19.01.2021 for framing of charge and directed the learned trial court to pass a speaking order on the application filed on behalf of the accused persons on 12.01.2021. But learned trial court has dismissed the discharge application vide impugned order dated 02.03.2022 without considering the grounds taken in said application. The informant side engaged in Maar Peet with the revisionist and damaged the car of the revisionist and got a false F.I.R. lodged by misusing data of another person, only to save themselves. There are material contradiction in the statement of victim recorded under Section 161 Cr.P.C. and statement under Section 164 Cr.P.C. during investigation. Her medico-legal examination report did not supported the prosecution version. On the plot of revisionist two gates are situated and if one gate is closed children/persons can easily get access into his plot through second gate. The complainant has framed the victim to depose against the applicant during investigation by issuing threat to her, the present case has been lodged at the instance of the complainant only to extort money from the revisionist. Learned trial court while dismissing application for discharge has not applied its judicial mind, no case is made out against the revisionist for which he has been charged by the court below, therefore, the impugned order dated 02.03.2022 is liable to be set aside and revisionist may be discharged of those charges.

5. Per contra, learned A.G.A., Sri Deepak Kapoor, submitted that there are ample evidence collected during investigation against the revisionist on the basis of which charge has been framed against the revisionist and discharge application was dismissed by learned court below by impugned order, the victim has stated