Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF ALLAHABAD
RAJEEV MISRA, J.
Rohit Kumar Yadav and Others – Applicants
Versus
State of U.P. and Another - Opposite Parties
Application U/S 482 No. 5669 Of 2021
Decided On : 01-08-2022

Advocates Appeared:
For the Applicants : Rajiv Lochan Shukla, Kuldip Singh Yadav.
For the Opposite Parties : G.A., Jitendra Kumar.

The main legal point established in the judgment is that the summoning of accused under Section 319 Cr.P.C. should be based on evidence establishing more than mere complicity in the crime.

Headnote:
POCSO - Summoning of Accused - Sections 376, 504, 506, 363, 376 (3) I.P.C. and Sections 16/17 POCSO Act - The court discussed the parameters for exercise of jurisdiction under section 319 Cr.P.C. and concluded that the summoning of applicant-1, Rohit Kumar Yadav, under Section 319 Cr.P.C. was justified based on the consistent and categorical statements of the first informant and the prosecutrix. However, the summoning of applicants 2, 3 and 4 was quashed as their complicity in the crime was not established beyond mere complicity.
Fact of the Case:
The case involved an application challenging the summoning of the accused in a POCSO and rape case. The first informant alleged that the accused forcibly dislodged the modesty of the prosecutrix. The Investigating Officer exculpated applicant-1, Rohit Kumar Yadav, but the first informant filed an application under Section 319 Cr.P.C. to summon all accused based on the statements of prosecution witnesses.
Finding of the Court:
The court found that the summoning of applicant-1, Rohit Kumar Yadav, was justified based on consistent and categorical statements of the first informant and the prosecutrix. However, the summoning of applicants 2, 3 and 4 was quashed as their complicity in the crime was not established beyond mere complicity.
Issues: The main issue was whether the summoning of the accused under Section 319 Cr.P.C. was justified based on the evidence presented by the prosecution witnesses.
Ratio Decidendi: The court held that the summoning of applicant-1, Rohit Kumar Yadav, was justified based on the consistent and categorical statements of the first informant and the prosecutrix. However, the summoning of applicants 2, 3 and 4 was quashed as their complicity in the crime was not established beyond mere complicity.
Final Decision: The court partly allowed the application, quashing the summoning of applicants 2, 3 and 4, but maintaining the summoning of applicant-1, Rohit Kumar Yadav.

JUDGMENT :

1. This application under Section 482 Cr.P.C. has been filed challenging order dated 02.02.2021, passed by Additional Sessions Judge/Special Judge, POCSO & Rape Cases, Court No. 8, Kaushambi, in Case No. 83 of 2021, (State Vs. Atul Yadav and Others), arising out of Case Crime No.0120 of 2018, under Sections376 (D), 504, 506, 376 (2) (i) I.P.C. and Sections-3/4 POCSO Act, Police Station-Charwa, District-Kaushambi, whereby application dated 27.01.2020 filed by first informant, opposite party-2, Rakesh Singh Yadav under Section 319 Cr.P.C. has been allowed. Resultantly, applicant-1, Rohit Kumar Yadav has been summoned in aforementioned criminal case under Sections 363, 376 (D), 504, 506, 376 (3) I.P.C. and Sections 16/17 POCSO Act, whereas applicants 2 to 4 namely Tirra @ Atik, Nanake and Dhiru have been summoned under Sections 363, 376 (D), 504, 506 I.P.C. and Sections 16/17 POCSO Act.

2. I have heard Mr. Rajiv Lochan Shukla, the learned counsel for applicants, the learned A.G.A. for State and Mr. Jitendra Kumar, the learned counsel for first informant/opposite party-2.

3. Perused the Record.

4. It transpires from record that in respect of an incident, which is alleged to have occurred on 26.04.2018 at around 9.00 PM., a delayed F.I.R. dated 27.04.2018 was lodged by first informant/opposite party-2, Rakesh Singh and was registered as Case Crime No.0120 of 2018, under Sections-376 (D), 504, 506, 376 (2)(i) I.P.C. and Sections-3/4 POCSO Act, Police Station-Charwa, District-Kaushambi. In the aforesaid F.I.R., two persons, namely, Rohit Kumar Yadav and Atul Yadav have been nominated as named accused.

5. In brief, as per the prosecution story, as unfolded in F.I.R., it is alleged that on 26.04.2018 at around 9.00 PM., Sarita (Daughter of Dhara Singh younger brother of first informant) along with her grand mother went out of their home to attend the call of nature. As the mother of first informant sat down to ease herself, applicant-1 Rohit Kumar Yadav and Atul Yadav dragged the niece of first informant namely Sarita in a partially constructed house and thereafter, serially i.e. one by one forcibly dislodged her modesty by committing rape upon her. The F.I.R. further states that after having committed the aforesaid illegal act named accused threatened the prosecutrix not to disclose anyone about the said incident. Having been freed from the clutches of the accused, the niece of the first informant is said to have narrated the entire event to her grand mother.

6. After registration of above-mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He, accordingly, examined the first informant/opposite party-2, Computer Operator, scribe of F.I.R., Female Police Constable and others as well as the prosecutrix under Section 161 Cr.P.C. Prosecutrix in her aforesaid statement before Investigating Officer has supported the prosecution story as unfolded in the F.I.R. However, she has implicated only the named accused i.e. Rohit Kumar Yadav and Atul Yadav in the crime in question. The names of applicants 2, 3 and 4 are conspicuous by their absence in aforesaid statement of proesecutrix.

7. Prosecutrix was also medically examined. The prosecutrix in her statement before the Doctor has also supported the prosecution story as unfolded in the F.I.R. Here again the prosecutrix remained consistent and nominated the named accused Rohit Kumar Yadav and Atul Yadav in the crime in question i.e. rape upon her. She, however, improved upon the manner of occurrence and stated that five persons kidnapped her and thereafter her modesty was forcibly dislodged by the two named accused. The names of other three accused were not disclosed by her. However, the Doctor, who examined the prosecutrix, did not find any sign on her body establishing the commission of sexual violence. The Doctor further found that her hymen was old torn. Certain samples were, however, collected