IMPORTANT POINTS
(1) Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where circumstances of case so warrant.
(2) Summoning of additional accused to face trial – It is suggestive role of family which influences mind of child to indirectly implicate appellant.

JUDGMENT :

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by the High Court of Uttarakhand at Nainital on April 3, 2019 whereby, revision against an order of summoning of appellant under Section 319 of the Code of Criminal Procedure, 1973 (for short ‘Code’) remained unsuccessful.

2. An FIR was lodged by Harpreet Singh, father of prosecutrix (aged about 6 years), on April 19, 2017 at 1:23 p.m. about sexual assault on her daughter. The FIR reads as under:

“My daughter xxxx who is 6 years old has been mentally and physically harassed for 4-5 months in her school Aurum the Global School Haldwani. My daughter was very upset mentally for several days and would cry bitterly when asked to go to School. On my asking several times, she told me and my wife that in her School a teacher touched her private parts deliberately. He would take her to the bathroom, close her eyes and then would insert a stick like object in her vagina. This teacher had frightened her and he had instigated her not to talk about this matter to anyone. My daughter even told me that, whenever she went to the bathroom, he would follow her and molest her there. Today, we showed the picture of this teacher to our daughter by the medium of facebook, she recognized him, and as a result we came to know that the name of this teacher is Bablu Bisht. Sir, the owner of the School Ankit Joshi, Principal Gauri Vohra and Class Teacher Nameeta Joshi are equally guilty (at fault) in this case. It is there pleaded of you, to kindly take stern action against the culprits.”

3. After FIR was lodged, the statement of the victim was recorded by the Investigating Officer under Section 161 of the Code on April 19, 2017. Some of the relevant extracts from the statement read as under:

“When father enquired so I told my father about Bablu Uncle’s incident, my mother was also there. Bablu Uncle did these things earlier also - 3 days earlier he did the same thing. Ever since, I came to class first, he has done the same thing thrice.

Question: Do you recall any earlier instance when Bablu Uncle or somebody from house or school did something like this with you?

Answer: Aunty when I study in lkg and ukg then also sometimes Bablu Uncle did these things with me, apart from this nobody else has ever done anything with me.”

4. Later, another statement of the prosecutrix was recorded under Section 161 of the Code on April 22, 2017 wherein, she stated that after she returned from washroom, two Uncles came and picked her away. In response to another question, the child responded that these two persons work outside school. In respect of a question whether she has seen these persons earlier, the answer was that they used to roam in the School. Relevant extract of the statement read as under:

“On showing print photographs, which were taken from school website by the parents of the kid, the girl said yes to the photo of Bablu Bisht and pointed towards one more photograph of another person. When we asked her whether she has told to her madam about this incident, she replied that she has told four times.”

5. It is thereafter, statement of the prosecutrix was recorded under Section 164 of the Code on April 24, 2017 where she deposed, for the first time, that after she returned to her classroom, two men came; one of them wore spectacles and other did not. They took her out from there. She deposed that two men had touched her before also. She also deposed that she has told her parents about the incident and that two persons assaulted her five times earlier secretly in the garden. The appellant is said to be the person who was wearing spectacles. On the basis of the evidence collected by the investigating team, charge sheet was filed against Bablu Bisht alias Balwant Singh. The prosecution has examined Harpreet Singh, father of the prosecutrix as PW-1 who has deposed as under:

“When I asked her what had happened, she did not tell anything. After I took her in confidence and asked her what had