Court No. - 28 Case :- U/S 482/378/407 No. - 518 of 2010 Petitioner :- Zubaida Khatoon Respondent :- State Of U.P. & Ors. Petitioner Counsel :- Anil Kumar Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Alok K. Singh,J.
Heard the learned counsel for the petitioner and learned A.G.A. and perused
the material on record.
Learned court below while rejecting the application under Section 319 Cr.P.C.
vide impugned order dated 22.01.2010 has mentioned that in the F.I.R. the
names of Smt. Panna alias Janno and Smt. Hasina are not mentioned. The
only thing mentioned in the F.I.R. is that besides the named accused two
bhurkhaposh women were also present. But no identification was ever got
done. There were two substantive statements before the learned court below.
The first statement was that of first informant who is not an eye witness and
has named these two persons on the basis of what her daughter (victim) has
told her. About victim’s statement the learned lower court observed that in the
normal circumstances it would be difficult to believe that the girl was raped
by a brother in presence of his sisters. Therefore the learned trial court did not
find the complicity of these two ladies in the alleged offence. Time and again
the Hon’ble Apex Court has laid down that unless there are reasonable
prospects of conviction an order under Section 319 Cr.P.C. should not be
passed. It has also been observed by Hon’ble the Apex Court that at the stage
of framing of charges the test is that of prima facie case but in respect of
Section 319 Cr.P.C. there should exist a strong suspicion which was found
lacking in the present case by the learned trial court and therefore it rejected
the application and rightly so.
In view of the above, there does not appear to be any flaw in the order.
Therefore I regret in not finding any substance to invoke the inherent powers
of this Court in this case. The petition is dismissed.
Order Date :- 4.2.2010
PAL/