Pawan Kumar Tripathi & Ors. vs State of U.P. & Ors.

Heard learned counsel for the parties.

The order passed under Section 319 Cr.P.C. summoning the petitioners is under challenge.

Learned counsel for the petitioners argues that the names of the petitioners neither find place in the F.I.R nor their names were stated by the prosecutrix in her statement given under Section 161 Cr.P.C.; that the police submitted chargesheet only against the coaccused Puttan, who was named in the F.I.R. He submits that the chargesheet was submitted after the statement of the prosecutrix under Section 164 Cr.P.C. was recorded. Yet the I.O. did not submit any chargesheet against the petitioners.

Subsection (1) Section 319 Cr.P.C. provides as under:

"319. Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed."

The prosecutrix was examined in the court as P.W.3. She in her such statement given in court, stated that accused Puttan, Daddan, Mukesh and Pawan took her forcibly when she had gone out of her house for the call of nature. She stated that Puttan, Daddan, Mukesh and Pawan, all committed rape upon her and thereafter she was taken to the house where Mangleshwar was present, who also committed rape upon her. The allegations of rape against the petitioners were also made by the prosecutrix in her statement dated 6.9.2007 recorded under Section 164 Cr.P.C. In such circumstances, the petitioners were summoned on the basis of the evidence of the prosecutrix.

The cardinal principle of law is that if the evidence against the accused is of such a nature which, if goes unrebutted, is sufficient to base the conviction, the charges have to be framed against the accused person. The standard of evidence required for summoning of the accused persons cannot be higher than the standard of evidence required for framing of the charges.

Since the prosecutrix stated on oath in Court that the petitioners Pawan, Dadanu, Mukesh and Mangleshwar also committed rape upon her and since such evidence finds corroboration from her earlier statement given under section 164 Cr.P.C., hence, the order summoning the petitioner on an application under section 319 Cr.P.C. is perfectly justified and valid. It warrants no interference.

Now, the learned counsel for the petitioners argues that according to the F.I.R, the age of the prosecutrix was only 14 years on the date of the incident. He submits that, thus, she is still a minor if her age stated in the F.I.R. is true. He submits that in such circumstances, it was obligatory for the trial judge to test her capacity of understanding the questions and to reply such questions.

The statement of the prosecutrix recorded in the court on 20102008 reveals that she was 19 years old at the time of her statement in the court. Therefore, there was no need for the trial judge to test her capacity of understanding the questions and to reply those questions.

In view of above, the impugned order warrants no interference. The petition is devoid of merit, as such, it is dismissed.