AJAY KUMAR @ BITTU v. THE STATE OF UTTARAKHAND INSC 41

Leave granted.

This appeal has been filed against the judgment of the High Court of Uttarakhand dated 27.09.2019, by which judgment High Court had dismissed the Criminal Revision filed by the appellants. The Criminal Revision was filed by the appellants against the order dated 17.08.2019 passed by Additional District Judge, Laksar, by which the appellants were summoned by the Court under Section 319 Cr.P.C.

Brief facts of the case necessary to be noted for deciding this appeal are:- i. The appellant was made an accused in FIR No.175/2015 at Police Station Kotwali, Laksar, Haridwar, under Section 147, 148, 149, 323, 324, 307, 452, 504 and 506 IPC along with six other accused. An FIR No.176/2016 was also registered in the same Police Station under Section 147, 148, 149, 307, 452, 504, 506 IPC in which the complainant with other accused were arrayed. The Police after carrying out the investigation submitted a chargesheet exonerating the appellants. Investigation officer after investigation expunged the names of Bittoo and Jyoti, the appellants from the list of accused from the chargesheet. ii. The Trial began in case No.228 of 2016 in which informant Pahal Singh was examined as PW-1. In his Statement, Pahal Singh implicated all accused including the appellants but no specific role was assigned to the appellants. Statement was also recorded by PW-2, Monu, in which he implicated the appellants. An application under Section 319 Cr.P.C. was filed by the informant before the Session Judge praying that appellant be also summoned in the case. Learned Session Judge after noticing in detail the statements made by PW-1 and PW-2 made in the Court rejected the application by order dated 21.06.2018. Against the order dated 21.06.2018, Pahal Singh, the informant, filed the Criminal Revision No.304 of 2018 before the High Court. iii. The High Court relying on the judgment of this Court reported in Rajesh and others versus State of Haryana, (2019) 6 SCC 368, allowed the Revision and directed the application under Section 319 Cr.P.C. to be considered afresh. Following is the operative portion of the order passed by the High Court in paragraph 7; “7. After having considered the aforesaid ratio and also the reasons which have been assigned by the Additional Sessions Judge, Laksar, Haridwar, this Court is of the view that the revision deserves to be allowed and the same is consequently allowed. The order dated 21.06.2018 passed by the learned Additional Sessions Judge, Laksar, District Haridwar in Sessions Trial No.228 of 2016, State v. Chandra Pal and others is quashed. The matter is remitted back to the Additional Sessions Judge, Laksar, District Haridwar, to reconsider the application paper No.53 (ka/1) in the light of ratio as propounded by the Hon’ble Apex Courts Judgment in Rajesh’ case (Supra).” iv. After the Order of the High Court dated 11.07.2019 in the Criminal Revision, Learned Session Judge again considered the application under Section 319 Cr.P.C. Learned Session Judge referring to the observations made by the High Court in paragraph 5 as well as the judgment of this Court in Rajesh and others versus State of Haryana(Supra) allowed the application and summoned the appellants by Order dated 17.08.2019. The Trial Court issued a bailable warrant against the appellants on 05.09.2019 and after bailable warrant being served when they did not appear on 18.09.2019, Non-Bailable warrant was issued to the appellants and a Notice under Section 446 Cr.P.C. was issued as to why the amount of sureties being not realised from two sureties Arun Kumar and Chandra Pal. The appellants filed Criminal Revision before the High Court against the order dated 17.08.2019 of the Additional Session Judge summoning them. v. The High Court dismissed the Revision noticing a subsequent order dated 18.09.2019 by which notice has been issued under Section 446 Cr.P.C. The High Court took the view that the Revision was filed on 23.09.2019 but the order passed by the Court on 18.09.2019 has not been brought on record, hence, there is concealment of not placing the order on record. The High Court further observed that since the proceeding in pursuance to allowing the application under Section 319 Cr.P.C. has already been initiated, in which the revisionists have already invoked the jurisdiction of the Revisional Court in which order dated 18.09.2019 has been passed, the Revision is to be dismissed. Aggrieved by the order of the High Court dated 27.09.2019, this appeal has been filed.

HELD: As far as the offences punishable under section 363 and 366 IPC are concerned, P.W.1 Phoolchand (Father of the girl) who is her guardian has not supported the prosecution story and he has turned hostile. He did not say that accused had taken his daughter from his lawful guardianship. He told that the girl was aged eighteen years. Not only this, P.W.3 Ranjeet Singh (real brother of the victim) has stated in his cross-examination that his age was twenty five years. He had two younger sisters Seema and Pushpa (victim). Seema was three years younger to him and Pushpa was two years younger to Seema. In other words age of the victim (Pushpa) was twenty years in the year 2004 which means on the day of the incident age of the girl was eighteen years. On perusal of cross-examination of P.W.2 Pushpa also it is clear that she has admitted that her elder brother was aged thirty years who was a married man. She further told that they are three siblings. She further stated that her elder sister is three years younger to her elder brother and she (P.W.2) is two years younger to her elder sister as such the statement given by the girl in her cross-examination further corroborates the fact that on the day of the incident she was aged eighteen years. As such, this Court is of the view that the allegation of kidnapping of minor girl made by the prosecution does not stand proved on the record.

After re-appreciating the entire evidence on record, for the reasons as discussed above, this Court is of the view that charge of none of offences punishable under section 363, 366 and 376 IPC is not proved against the accused Bittu @ Vikram Singh. In the opinion of this Court the trial court has erred in law in convicting the accused Bittu @ Vikram Singh under section 363, 366 and 376 IPC. Therefore, the appeal is allowed. Impugned judgment and order dated 21.02.2008 passed by Additional Sessions Judge/I Fast Track Court, in Sessions Trial No. 34 of 2003 convicting accused/appellant Bittu @ Vikram Singh under section 363, 366 and 376 IPC is hereby set aside. The accused/appellant Bittu @ Vikram Singh is acquitted from the charge of offences punishable under section 363, 366 and 376 IPC. He is on bail. He need not surrender. Lower court record be sent back.