Allahabad High Court
Yashodhan Singh And 6 Others vs State Of U.P. And Another on 3 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- CRIMINAL REVISION No. - 4235 of 2022 Revisionist :- Yashodhan Singh And 6 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sanjay Vikram Singh,Rakesh Kumar Singh Counsel for Opposite Party :- G.A.,Kamlendra Singh Jadaun,Onkar Singh Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the applicant, learned counsel for the opposite party no.2 and perused the record.
The revision has been filed against the order dated 23.09.2022 passed by the Additional Session Judge, Court No.1 Hathras Junction in Session Trial No.348 of 2018 (State Vs. Rajan Singh and others), under Sections 147, 148, 149, 302, 504, 506, 307, 34 I.P.C, whereby the application under Section 319 Cr.P.C. of the opposite party no.2 was allowed and all the seven revisionists were summoned to face trial under Sections 147, 148, 302/149, 504, 506, 307/149 IPC.
It is argued by the learned counsel for the revisionists that FIR was lodged against 11 persons on 09.06.2018 with the allegation that all the named 11 accused persons who were having enmity with opposite party no.2 came to his house in the evening at about 8 PM on 09.06.218 and in furtherance of their common object, herald abuses and when they were resisted all of them started firing with their guns, rifles and pistols. As a result two brothers of the first informant Pratap Singh and Netrapal are said to have put to death and the first informant is said to have sustained fire arms injury. The brother of the first informant Devendra Singh, nephew Himanshu and sister-in-law (bhabhi) Hemlata are said to have witnessed the incident. It is further submitted that out of these 11 persons charge-sheet was submitted against four accused persons and against rest seven accused persons investigation remained continued. On 09.09.2018 the rest seven accused persons were exonerated by the investigating officer. Sections 147, 148, 149 and 452 IPC were also deleted from the earlier charge-sheet. After the statement of PW1 and PW2 first informant moved an application under Section 319 Cr.P.C. which was allowed vide order dated 23.9.2022 and all the seven accused persons exonerated earlier by the investigating were summoned by the court concerned to face trial under Sections 147, 148, 302/149, 504, 506, 307/ 149 IPC.
The said summoning order on the application under Section 319 Cr.P.C. is under challenge in the present revision. It is submitted by the learned counsel for the revisionists that on the date of incident i.e. on 09.06.2018 revisionist no.1 Yashodhan was under treatment staying at house no.47/11 Dharmvihar, Bahadurgarh, District Chajjar, Hariyana. In this regard, the attention of the Court is drawn towards the statement of Harimohan Dhakare, in whose house Yashodhan is said to have stayed for his treatment, statements of Krishan Prasad, Praveen Kumar Singh and also of doctor Sanjay, who is said to have treated the revisionist Yashodhan on 09.06.2018 at 3 PM, while the incident is dated 09.06.2018 at 8 PM.
With regard to revisionists Sandeep Singh and Pushpendra Singh, the attention of the Court is drawn towards the statements of Indrajeet Singh, Smt. Beena Devi, Subodh Kumar, Maheshpal Singh, Vijay Singh and Sanjay Singh, who have stated that on 09.06.2018 at about 8 PM shop of Indrajeet, namely, 'Sriram Sweets & Fast Food' at Ramghat Road, Aligarh was inaugurated and revisionists Pushpendra Singh and Sandeep Singh were present in that programme at about 8:30 PM. It is alleged that CCTV cameras are installed at the shop and at that time Sandeep Singh had gone for loading/ unloading the laguage.
Regarding Shilendra Singh, the attention of the Court is drawn towards the statement of Dharmvir Singh, Dilip, Smt. Sashi Prabh, Vipul Agarwal, Smt. Chandrawati, Smt. Mamta, Smt. Supriti, Kavya Vashnay and Premlata, in their statements it has come that on 09.06.2018 from 7 PM to 9 PM, Shilendra Singh was present at his house. At about 9 PM on that fateful day, he had come to the shop of Kavya Vashney to purchase some household stuff. At his shop, CCTV Cameras are said to have installed. Rest witnesses have stated that the father-in-law of Shilendra had expired so they had gone to express their condolences at his home and during this period of 7 PM to 9 PM on 09.06.2018 Shivendra was present at his house.
Regarding Sarvendra Singh, it is claimed that from the call detail record of revisionist Sarvendra Singh, on 09.06.2018, his location was found at Mandsaur, which is 686 km away from the spot.
Regarding revisionist Ashok, it is argued that as per statements of Rajan Lal, Murari Lal, Jai Pal, Satya Prakash Baghel, Girraj Baghel, Nem Singh Baghel, Sovran Singh Baghel, Jugendra Singh, Sonu Kumar Baghel, Banni Singh Baghel, revisionist Ashok was present at the temple in kirtan programme on 09.06.2018 from 6 PM till 10 PM. He was called by the police on the same night and Ashok had gone to the police station direct from the temple and he was sent back by the police finding his involvement in the crime to be false.
Regarding revisionist Pawan, it is claimed that he is the son of Yogendra Singh and in his family there is only one mobile phone which is used by all the family members. As per call detail record of this mobile, the location of that mobile phone was found of Mahu Indore, M.P. On the basis of above statements under Section 161 Cr.P.C. and also on the basis of call detail record, all the seven revisionists are claimed to be falsely implicated and it is claimed that at the time of incident there were not present on the spot and the court concerned without discussing this evidence mere on the basis of the statements of PW1 and PW2 has passed the impugned order. Admittedly, there is enmity of the election of Village Pradhan between the parties. Due to this enmity only, the revisionists have been falsely implicated. It is further submitted that in the FIR no source of light has been mentioned, nor such any source of light has been taken into possession by the investigating officer though inquest also could not be done on the same night as it was dark enough so the inquest was conducted next day. In absence of any source of light the accused persons/ revisionists cannot be said to be recognized by the opposite party no.2/ witnesses.
Learned counsel for the opposite party no.2 has supported the impugned order and submitted that all the revisionists/ accused persons and the opposite party no.2 are the native of the same village so it was not difficult for them to recognize each other at 8 PM in the month of June when sun sets very late. It is further argued that a plea of alibi is taken by the revisionists which is not proved. PW1 is the opposite party no.2 and he is the injured person so his presence on the spot cannot be denied. Both the witnesses PW1 and PW2 have fully supported the prosecution version. No adverse fact has come in their statements and at this stage the Court has to see as if only on the basis of examination in chief of the accused persons/ revisionists could be convicted or not. Hence, the prayer is made to reject the revision.
Learned counsel for the revisionists has drawn the attention of the Court towards the judgment in Brijendra Singh & Ors. Vs. State of Rajasthan, 2017 0 Supreme (SC)411, wherein the Apex Court held that where a person is named in the FIR but he has not been chargesheeted the power of the court under 319 Cr.P.C. is discretionary and extraordinary which is not to be exercised in a casual or cavalier manner. For the court stronger evidence than mere probability of persons complicity is required.
Further the attention of the Court is drawn towards the judgment in Naveen Versus State of Haryana & Others, 2022 0 Supreme (SC) 1107, wherein the Apex Court held that Section 319 Cr.P.C. is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction.
Learned counsel for the opposite party no.2 has drawn the attention of the Court towards the judgment in Sartaj Singh Versus State of Haryana and Another Etc, 2021 0 Supreme (SC) 147, wherein the Apex Court held that the Court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned and Court need not wait till the cross-examination of such a witness, a person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C., provided from the evidence, (may be on the basis of the evidence collected in the form of statement made in the examination-in-chief of the witness concerned) such person can be tried along with the accused already facing trial.
Thus, it is clear from the above judgments of the Apex Court that the power under Section 319 Cr.P.C. is discretionary and extraordinary which should be exercised sparingly and the crucial test in this regard is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted would lead to conviction this power can be exercised even on the basis of the statement made in the examination-in-chief of the witness and the Court may not wait till the cross examination of such witness.
In the case in hand, the presence of all the seven revisionists is challenged at the place of occurrence on the date of incident regarding revisionist no.1 Yashodhan by recording the statement of doctor his presence is shown in Bahadurgarh, Haryana. Regarding presence of revisionists Pushpendra Singh and Sandeep Singh, it is said that they were present at an inaugural programme in Aligarh, while admittedly in the CCTV footage, revisionist Sandeep Singh is not shown there. Regarding revisionist Shilendra Singh, it is said that he was present at his house from 7 PM to 9 PM on the date of incident. Revisionist Sarvendra Singh is said to be present at Mansore on the basis of his call detail record. Revisionist Ashok is said to be present in the temple kirtan and revisionist Pawan is said to be present in Indore M.P. on the basis of his call detail record while admittedly the number regarding which his call detail record is summoned, was in the use of all his family members and not only of Pawan. As per the prosecution, the statements of opposite party no.2, the injured and one eye witness are on record as PW1 and PW2 and it is said that in their cross examinations nothing incriminatory has come.
Record indicates that FIR is prompt, recorded after one hour and 45 minutes of the incident, at the police station 16 kms away from the spot.
Both the parties hail from the same village so it was not hard for them to recognize each other at 8 PM in the month of June. Inquest was found impossible as it was dark after 9:45 P.M. when the police came after the lodging of FIR while incident took place at 8 P.M. when it may be brighter then 9:45 P.M. when the FIR was lodged and police came for inquest.
Enmity is a double edged weapon which can lead the applicants to commit the offence and could also get them falsely implicated.
The plea of alibi of all the revisionists is still to be proved before the trial court by way of adducing oral and documentary evidence. While the statement of injured and eye witness have already been recorded, supporting the prosecution version. The importance of statements of injured as well as eye witness cannot be ignored until this evidence is belied by some more reliable evidence in reply of the prosecution evidence. The defence is still to produce its evidence before the court.
Thus, the order passed on the basis of statements of PW1 and PW2 who are injured and eye witnesses of the incident the summoning of the revisionists cannot be said to be against law. In my opinion, the order passed by the trial court is well explained and in compliance of provisions of law. There is no illegality, irregularity and improprietary in the impugned order.
The revision lacks merit and, hence, it is, accordingly, dismissed.
Order Date :- 3.1.2023 Radhika