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Allahabad High Court

INDRADEV @ CHHOTU VISHWAKARMAversusSTATE OF U.P. AND 3 OTHERS

Decided

Holding

The High Court held that the trial court did not err and the order dismissing the revisionist’s application for discharge is upheld.

Summary

The revisionist, Indradev Vishwakarma, was charged with an attempt to commit rape under the POCSO Act, alleging the victim was about 14 years old. He contended that the victim was actually a major, that the FIR was lodged after a delay of one and a half months, and that the victim’s statements recorded under Sections 180 and 183 of the B.N.S.S. were contradictory, rendering them unreliable. The trial court rejected his application for discharge under Section 262(2) of the B.N.S.S. and the revisionist sought a criminal revision. The High Court held that at the charge‑framing stage only the material collected by the investigating officer is relevant and defence evidence cannot be considered, and found no illegality in the trial court’s order. Consequently, the revision was dismissed at the admission stage.

Issues considered

  • Whether the trial court erred in rejecting the revisionist’s application for discharge under Section 262(2) B.N.S.S. on the ground of alleged age of the victim, delay in filing the FIR, and contradictions in the victim’s statements.

Legislation cited

Subjects

  • attempt to commit rape
  • POCSO Act
  • age of victim
  • delay in FIR
  • criminal revision
  • Section 262(2) B.N.S.S.
  • admissibility of defence evidence
  • charge framing

Judgment

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL REVISION No. - 2738 of 2026

Indradev @ Chhotu Vishwakarma
                                                             .....Revisionist(s)
                                   Versus
State Of U.P. And 3 Others
                                                                  .....Opposite
                                                                        Party(s)

Counsel for Revisionist(s)                    :   Pawan Kumar Patel
Counsel for Opposite Party(s)                 :   G.A.

Court No. - 86
            HON'BLE SUBHASH CHANDRA SHARMA, J.

Supplementary affidavit filed by learned counsel for the revisionist today is
taken on record.

Heard learned counsel for the revisionist as well as learned A.G.A. for the
State and perused the material on record.

The present criminal revision has been filed with prayer to set aside the
impugned order dated 07.02.2026 passed by the learned Additional Session
Judge/Special Judge (POCSO) Act, Sonbhadra in Session Case No.595/2025
(State vs. Indradev @ Chhotu Vishwakarma) arising out of Case Crime
No.50 of 2025, under Sections 352,351(2) 65(1), 62 B.N.S. 2023 & under
Sections 3/4(2) read with Section 18 POCSO Act and Section 3(2)v of
S.C./S.T. Act, Police Station Shahganj, District Sonbhadra whereby the
application of the revisionist u/s 262(2) B.N.S.S. has been rejected by the
learned trial court.

It is submitted by learned counsel for the revisionist that in this case the
revisionist has falsely been implicated for making an attempt to commit rape
with the victim said to be aged about 14 years though she was major at the
time of alleged incident. The present F.I.R. has been lodged after delay of
one and a half months without any explanation. Further submitted that she
also lodged another case against the present revisionist falsely in which after
trial he was acquitted and in that case she told her age to be major but
learned trial court did not consider this fact. Further submitted that in the
statements of the victim u/s 180 & 183 B.N.S.S. recorded before the I.O. and
learned Magistrate, there are contradictions which make the statements of
the victim unreliable. Learned trial court has also not considered these
contradictions but passed the order dated 07.02.2026 and dismissed the
                                                                                               CRLR No. 2738 of 2026
                                                                     2

                                    application for discharge.

                                    Learned A.G.A. opposed the prayer as aforesaid and contended that in this
                                    case there is allegation of an attempt to commit rape against the revisionist
                                    by the informant. When her statement u/s 180 B.N.S.S. was recorded by the
                                    I.O. she supported the allegation as made in F.I.R. and when her statement
                                    was recorded before the learned Magistrate u/s 183 B.N.S.S. she again
                                    reiterated her statement and asserted the allegation of an attempt to commit
                                    rape by the revisionist with her. Since medical examination was done after
                                    gap that was the reason no any such injury was found on her person but on
                                    her face, arms and left knee small old scratches were found to be present.
                                    Learned court concerned has passed the order in question after taking into
                                    consideration the material collected by the I.O. The statement of the victim
                                    and another witness in other case cannot be admitted at this stage in defence
                                    but such material can be admissible at the stage of defence after conclusion
                                    of prosecution evidence. At this stage, the delay in lodging the F.I.R. cannot
                                    be said to be material. The revisionist has not raised any question regarding
                                    the age of the victim before the learned trial court, therefore, at this stage it
                                    cannot be said that she is major or more than 14 years.

                                    Considering the facts and circumstances of the case, submissions made by
                                    learned counsel for the revisionist as well as learned A.G.A., perusal of
                                    record, the contents of F.I.R., the statement of the victim as recorded by the
                                    I.O. u/s 180 B.N.S.S. and under Section 183 B.N.S.S. by the learned
                                    Magistrate, it transpires that there is allegation of making an attempt to
                                    commit rape with the victim said to be aged about 14 years in field when she
                                    went to graze her goats. She has supported her allegation in F.I.R. when her
                                    statements was recorded u/s 180 & 183 B.N.S.S. before the I.O. as well as
                                    the learned Magistrate also. At the stage of framing of charge the learned
                                    court is expected to make scrutiny of the material collected during the course
                                    of investigation by the I.O. with a view to find out of prima facie case and
                                    not to make scrutiny of such material as during trial. The material of some
                                    other case can only be admitted at the stage of defence on the part of the
                                    revisionist/accused but at the stage of framing of charge no such material can
                                    be accepted. In this way, there appears no any illegality or impropriety in the
                                    order passed by learned trial court dated 07.02.2026 but this revision being
                                    devoid of merit is liable to be dismissed.

                                    Accordingly, this criminal revision is dismissed at the admission stage itself.

                                    May 5, 2026
                                    Ashok Gupta
                                                                                  (Subhash Chandra Sharma,J.)




Digitally signed by :-
ASHOK KUMAR GUPTA
High Court of Judicature at Allahabad


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