Ashik Kumar Dixit vs State of Uttar Pradesh and Others

Vinod Prasad, J.—Ashok Kumar Dixit, the unfortunate father of Km. Shikha Dixit, aged about 17 years, who has been subjected to gang rape has invoked the revisional power of this court under Sections 397/401 Cr.P.C. questioning the legality and justifiability of the impugned order dated 19.10.2006 passed by Special Judge, (DAA), Etawah, in Special Case No. 33 of 2004 State v. Kiran Misra and Ors., as well as in connected Special Case No. 73 of 2005, under Sections 363, 366, 376, 120B, 364A I.P.C, Police Station Kotwali, Etawah, District Etawah. vide crime number 357 of 2003 by which the Special Judge has discharged accused Hari Om Verma, Dharmendra Kumar @ Raj Verma, Kiran Misra, Sweta@ Lucky. Bajrang, Devendra Gupta, Anant Kumar Dubey, Sudhakar and Roop Chand, of charges under Sections 363, 366, 376, 120B, 364A I.P.C. at the stage of framing of charge Section 227/228 Cr.P.C. (herein after referred to as the Code). I hasten to add that this, in fact, is the second innings by the informant in this court after the matter has been remanded back by the Apex Court.

Brief Summary of un-eschewable facts gathered from various annexures appended along with the memo of revision and the counter and rejoinder affidavits are that Shikha Dixit, aged about 17 years daughter of informant Ashok Kumar Dixit, a resident of Anand Nagar, nears Deep Talkies, Etawah, went along with her neighbour friend Kiran Misra, wife of Krishna Kumar Misra and Sweta @ Lucky, on 10.10.03 at 7 p.m.on the false pretext of discussion of studies. When Shikh? Dixit did not returned for quite some time informant went to the house of Kiran Misra to inquire about the whereabouts of his daughter he could not find all the three of them there and was informed that all the three had gone to the resident of Hari Om. Accompanied by Budh Prakash his brother-in-law when the informant reached the house of Hari Om then he came to know that his daughter has been abducted by the respondents 2 to 10, the discharged accused persons. Sensing that his daughter can be subjected to illegal acts and can even be done to death that the informant gave an application at the police station Kotwali District Etawah on 16.10.2003 vide annexure No. 1 to the affidavit appended along with this revision but no FIR was formally registered by the police. Another application dated 25.10.2003 to the SSP, Etawah, vide annexure No. 2, and subsequent applications to the higher authorities did not yield any fruitful results and ultimately the informant resorted to political pressure and thereafter his FIR was ordered to be registered by SSP, Etawah and thereafter on his direction the FIR annexure No. 6 was registered on 1.11.2003 at police station Kotwali District Etawah for offences under Sections 363/366 IPC as crime number 357 of 2003 against Kiran Misra, Sweta @ Lucky, Hari Om and Dharmendra Kumar @ Raj Verma.

Lacklustre investigation in an attempt to shield the culprits, as has been alleged by the revisionists, compelled the father to stage various demonstrations and rallies but the police failed to trace out the abductee. However Shikha Dixit returned on 13.12.2003 and was medically examined vide annexure No. 16. Since the police was siding with the accused and had also manufactured victims statement u/s 161 of the code vide annexure No. 15, that the informant moved various applications for transfer of investigation vide annexure Nos. 12 to 14. Subsequently thereto 164 Cr.P.C. statement of Shikha Dixit was recorded on 10.2.2004 vide annexure No. 17.

Another development which took place meanwhile was filing of a Habeas Corpus Writ Petition by the Dharmendra @ Raj Kumar claiming himself to be the husband to the victim being H.C. Writ Petition No. 792 of 2004. How ever the same was dismissed by this court after recording the statement of the victim vide annexure No. 19.

After completion of investigation the police submitted charge sheets in various lots against the accused respondents 2 to 10 in this revision on the basis of which Special Judge (DAA) took cognizance of the offences and summoned the accused respondents 2 to 10 for the aforementioned offences but at the stage of framing of charge, vide impugned order dated 19.10.2006, discharge them. Hence this revision against the order for discharge.

In the first round in this court the impugned order was set aside and the matter was remanded back but the said order passed by this court was set aside by the Apex Court in Criminal Appeal No. 1134 of 2007 arising out of SLP No. 2807 of 2007 on 27.8.2007 on the ground that the said order was passed without notifying the parties and the matter was remanded back to this court to pass afresh order in accordance with law.

After remand now the revision is listed before me after being nominated by Hon''ble The Chief Justice. The order sheet after remand indicates that respondents No. 2 to 10 made every effort to delay the hearing of the revision and it was with difficulty that all the respondents were served who are now being represented by various counsels. Respondents No. 2 and 3 were allowed repeated time to file counter affidavit but in spite of time allowed they have not filed any counter affidavit. However their counsel Sri U.C. Misra has argued the revision on it''s merit on their behalf as well. Counter affidavits filed on behalf of respondents No. 6, 7, 8, 9, and 10, are taken on record along with the rejoinder affidavits to them Respondents No. 4 and 5 are represented by two counsels Sri R.O.V.S Chauhan and Sri Anoop Trivedi but none of them filed any counter affidavit on their behalf and proposed to argued the matter on it''s merit even though the first Counsel on their behalf sought and was allowed time to file counter affidavit on 15.2.2008 and the matter was finally heard on 31.3.2008. Order sheet of this revision, in their respect, shows their scanty respect for the proceeding pending in this court and it was with difficulty, after they were ordered to be arrested, that this revision could be heard on their behalf also. Sufficient time was allowed to them to file counter affidavit which they did not even though on more than one occasion applications were filed on their behalf to with draw non-bailable warrants against them.

On above facts I have heard Sri Manish Tiwari in support of this revision and Sri V.P. Srivastava, learned Senior Counsel assisted by Sri U.C. Misra on behalf of respondents 2, 3, and 8, Sri Anoop Trivedi and Sri Rovs Chauhan advocates on behalf of respondents No. 4, 5, 6, 9 and 10 and Sri D.P. Bahadur advocate on behalf of respondent No. 7 and the learned AGA on behalf of respondent No. 1 State and have perused the record of this revision.

Sri Manish Tiwari, learned Counsel, assailed the impugned order as being wholly without jurisdiction and de-hors the law and ambit of Section 227 and 228 of the Code. He retorted that the impugned order smacks of malafide order in which the trial Judge has scanned the prosecution version and had recorded findings that no offence is made out and discharged the accused without giving any opportunity to the victim of gang rape to substantiate her version. Criticising a young girl aged about 17 years who has been subjected to gang rape without affording her any opportunity to substantiate her version is the most abhorrent injustice meted out to her harangued learned Counsel. He contended that the statement of the victim recorded u/s 164 of the code, if believed, was by itself sufficient to convict the accused with out any further corroboration and the Special Judge went beyond his powers under 227/228 of the code to pass the impugned order discharging the accused. Learned Counsel submitted that at the stage of framing of charge the defence of the accused has not be scanned to stifle the prosecution at it''s very thresh hold. At that stage only this much has to be seen as to whether there is sufficient ground for proceeding or not taking prosecution version alone into consideration. Trial Judge is not required to critically appreciate the prosecution case at that stage as if he judgementing the case finally submitted learned Counsel. He contended that the Special Judge has recorded pre trial findings which he could not have done without recording prosecution evidence and affording chance to the prosecution to substantiate it''s version. Finding out loop holes in the prosecution case at the stage of framing of charge is a procedure unknown to the criminal jurisprudence retorted learned Counsel. The findings regarding marriage etc. recorded by the trial Judge at the stage of framing of charge is wholly absurd as in the Habeas Corpus writ petition this court has not accepted the marriage and victim to be the wife of Dharmendra and had dismissed the writ petition. Delay in recording the statement of the victim for two months is no ground to throw the prosecution version overboard submitted learned Counsel. Pre judging the disputed questions of facts without affording any opportunity to lead evidence is the illegality committed by the Special Judge which has resulted in miscarriage of justice contended learned Counsel. Criticising 164 statement of the victim as to be a manufactured one at a pre trial stage is wholly unwarranted argued Sri Tiwari. Concludingly learned Counsel contended that the impugned order is wholly illegal and totally unwarranted and deserves to be set aside and the instant revision deserves to be allowed and the case be remanded back for fresh consideration in accordance with law.

Refuting Sri Tiwari''s contentions, learned senior Counsel Sri V.P. Srivastava assisted by all other advocates representing respondent accused contended that the impugned order is a well reasoned order and the trial Judge has taken into consideration only the material available on the record of the case without addition or subtraction and has recorded findings sustainable in law. They submitted that victim eloped with her paramour and wandered around places, married with Dharmendra and when caught implicated every body on the charge of gang rape and abduction. They placed reliance on an affidavit sworn on 17.9.2003 and the photographs appended along with the counter affidavit to contend that the whole prosecution story is false. Criticising 164 Cr.P.C. statement of the victim they contended that it is, a manufactured one and was never handed over to the investigating officer and no reliance can be placed on such a statement recorded after two months and given under influence of the informant when she was under his custody. Sri Anoop Trivedi also argued that so far his clients, respondents No. 9 and 10 Sudhkar Dev and Roop Chand are concerned they are the office bearers of Arya Samaj Mandir, where the marriage of the victim was solemnised with Dharmendra and therefore they have been implicated in the case only to take revenge. According to his case Sudhakar Dev is the priest who has performed the rituals of the marriage and is an advocate also at Lucknow. He has a married life of 30 years and has two sons one of them being in North Carolina, US, and second is a student of LLB. So far as Roop Chand is concerned he is a Deputy Secretary in the State Government as well. For respondent No. 4 and 5 Sri Anoop Trivedi contended that they have been falsely implicated in the case because the victim has eloped with respondent No. 5 Dharmendra with whom she has later on married and respondent No. 4 Hari Om being his father has been implicated because of the aforesaid reason. For his this submission Sri Trivedi relied upon affidavits filed by the victim and Dharmendra which he has appended along with the counter affidavit filed on behalf of respondents No. 9 and 10. Both these affidavits are dated 31.10.2003 on which Roop Chand Deepak has ordered Sudhakar Dev accused to perform marriage of victim with Dharmendra which was solemnised on 4.11.2003. Victim is a major and her date of birth is 2.4.85 and she is habitual to rapuit camaliter cognovit (sexual inter course) and hence accused have been rightly discharged contended learned counsels. For respondent No. 6 Bajrang Saksena, Sri R.O.V.S. Chauhan learned Counsel has submitted that he is an advocate and had filed bail application on behalf of accused father and therefore he has been falsely implicated. For Anant Kumar Dubey @ Anand Dubey, respondent No. 7, Sri D.P. Bahadur, advocate contended that the whole prosecution story is false, improbable and unbelievable and FIR is back dated. He contended that the victim lived with her husband accused for two and half months and so far abduction is concerned, because the victim left the house with the permission granted by her father and on her own free will no offence u/s 363 IPC is made out against respondent No. 7. All the counsels for the respondents drawing the curtain of their submissions urged that the impugned order is a well reasoned order and the revision being devoid of merit deserves to be dismissed.

I have pondered over the rival contentions and have perused the affidavit, counter affidavits and rejoinder affidavits. The bone of contentions in this revision revolves round the legal question as what is the scope of analysis of prosecution version at the stage of framing of charge at the very inception of the trial? At that stage only it has to be seen as to whether there is sufficient ground for proceeding or not and it is not required at that stage to scan the prosecution evidence in all it''s pros and cons to stifle the prosecution without affording opportunity to it to substantiate it''s allegations. There is much substance in the contentions of learned Counsel for the revisionist in this respect. At the stage of framing of charge, roving enquiry or a mini trial is unwarranted. Evidence, at this stage can not be marshalled and critically appreciated as if the trial is being finally decided. For scanning of evidences at various stages of the trial there are different standards fixed by various judicial pronouncements. Catena of decisions have crystallised this position that at the stage of framing of charge only a prima facie case on the material contained in the prosecution papers have to be looked into. Defence of accused and the defence papers can not be looked into at this stage unless they bring forth legal impediment in launching the prosecution or continuation thereof such as lack of sanction, or filing of a complaint by a particular authority, or the case falls under one or more heads enumerated in State of Haryana v. Ch. Bahajan Lal''s case 1992 SCC 426 by the Apex Court. Words "sufficient grounds for proceedings" u/s 227 of the Code denotes only prima face material to start the lis. Material on the prosecution case therefore has to (sic) judged only to find out sufficient ground for proceeding and no further. Contradictions, unnaturality, improbability of allegations, reasons for false implications can not be pressed into service at that stage to discharge the accused. All the above facts are subject to critical appreciations after the evidence is led in the trial and opportunity has been offered to the rival sides to lead evidence and plead their cases. Thus the scope of scanning of the evidence at the stage of framing of charge is very narrow. It is not wide enough to embraces in it''s purview the exercise of critical appreciation of evidences as is required under Sections 232 or 234 of the code. Expounding the law on the subject the Apex Court in the decision of State of Orissa Vs. Debendra Nath Padhi, has held as under:

At the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submission of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression "hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.

In Dilawar Balu Kurane Vs. State of Maharashtra, it has been held by the Apex Court as follows:

Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers u/s 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said Section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction u/s 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(under line emphasis supplied).

On the anvil of the above exposition of law, when the facts of the present revision are appreciated, critically, it is conspicuously clear that the Special Judge has transgressed his limits of scanning the evidence than what was required at the stage of framing of charge. He has meticulously detailed all the disputed questions of fact and recorded findings against the prosecution without affording it an opportunity to substantiate it''s allegations. Prima facie there was enough material contained in the police papers to come to a conclusion that there are sufficient ground for proceeding against the accused. Statement of victim u/s 164 of the Code was by itself sufficient to frame charges against the accused. I hasten to add that statement recorded u/s 164 Cr.P.C. is admissible u/s 80 of The Evidence Act even without formal proof. Minimum requirement of law was to afford opportunity to the victim to substantiate her allegations of abduction on gun point and gang rape and consequently negation of that opportunity by the Special Judge, Etawah, by passing the impugned order has resulted into miscarriage of justice. How the statement of a victim of gang rape, in whose favour there is a statutory presumption u/s 114-A Evidence Act, can be held to be cooked up prior to victim''s examination in court. The conclusion arrived at by the trial Judge, is so surreal that it makes the impugned order wholly illegal and untamable. 164 Cr.P.C. statement shows that the chastity of the victim was ravished by Dharmendra, Sudhakar Dev and Roop Chand. Ananad Dubey had even snapped her obscene photos. The Jeep in which she was abducted and was forced to sign on blank papers had fellow accused as co passengers including Bajrang Saksena, Devendra Gupta, Kiran Misra and Shikha Misra. Dharmendra Verma, Hari Om Verma had played role in her abduction on gun point. How such allegations are insufficient even to frame charges? The reasons given by the Special Judge is pre determination of the disputed questions of facts against the settled principle of law enumerated above.

Another illegality which has been committed by the Special Judge is his recording of findings regarding love affair and marriage of the victim with Dharmendra. The findings recorded in the impugned order that the statement of the victim on these aspects of the case is not acceptable is a wholly unplaced conclusion contrary to the statement of the victim herself. When the victim alleged that she was made to go to various places on gun point and was forced to sign on affidavits and other papers on gun point and her chastity was ravished in gang, it was wholly inappropriate for the Special Judge to nip the prosecution into bud with out affording it an opportunity to substantiate these allegations.

Another recorded finding in the impugned order that whosoever was Involved in the incident was made an accused is a pre mature judging of the disputed allegations. Much can further be observed against the impugned order but to shorten the controversy it is suffice to observe that the impugned order is wholly illegal and beyond the scope of Section 227/228 of the Code and is an example of over reaching of jurisdiction to scuttle a prosecution which required opportunity of leading evidence. Material in the police papers unerringly indicated with promiscuity that it was not a case of discharge as even on the face of allegations it could not have been concluded that there was no sufficient ground for proceeding.

The off shoot of the above discussion compels to conclude that the impugned order dated 19.10.2006 passed by Special Judge, Etawah in Special Case No. 33 of 2004 State v. Kiran Misra and Ors., as well as in connected Special Case No. 73 of 2005, under Sections 363, 366, 376, 120B, 364A I.P.C. Police Station Kotwali, Etawah, District Etawah, vide crime number 357 of 2003 suffers from patent error of law and is wholly illegal and therefore can not be sustained.

Resultantly, this revision is allowed. Impugned order is set aside. The case is remanded back to the Special Judge, Etawah to re- hear the prosecution and the accused on the question of framing of charge and then decide the same in accordance with law.