Allahabad High Court
Adesh vs State Of U.P. And Another on 8 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:110828 Reserved on: 24.05.2024 Delivered on: 08.07.2024 Court No. - 64 Case :- CRIMINAL REVISION No. - 5640 of 2023 Revisionist :- Adesh Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Mayank Yadav,Vivek Kumar Singh Counsel for Opposite Party :- G.A.,Raj Kumar Dhama Hon'ble Rajeev Misra,J.
1. Heard Mr. Vivek Kumar Singh, the learned counsel for revisionist, the learned A.G.A, for State-opposite party-1 and Mr. Raj Kumar Dhama, the learned counsel representing first informant opposite party-2.
2. Perused the record.
3. This criminal revision has been filed challenging the order dated 31.07.2023 passed by Sessions Judge, Baghpat in Sessions Trial No 290 of 2022 (State Vs. Balister and others), under Sections 307, 323, 504, 506 IPC, P.S. Chhaprauli, District Baghpat, whereby the application under Section 319 Cr.P.C. filed by the prosecution/first informant (Paper No. 16-B) has been allowed and consequently, the revisionist Adesh, who is a prospective accused (named but not charge sheeted accused), has been summoned by Court below under Sections 307, 323, 504, 506 IPC to face trial in above mentioned Sessions Trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 18.03.2022, a delayed F.I.R. dated 19.3.2022 was lodged by first informant Satish (father of the injured Arun) and was registered as Case Crime No. 0063 of 2022, under Sections 394, 34 IPC, P.S. Chhaparauli, District Baghpat. In the aforesaid F.I.R., 3 persons namely Balister, Yudhishthir and Adesh have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused with a common object came to the shop of the first informant. They first looted Rs. 12,000/- from the cash box of the shop and thereafter, fired gun shot at the first informant Satish and his son Arun. The son of the first informant, who sustained grievous injuries, was admitted to Kailashi Hospital, District Meerut and is undergoing threatment.
6. It is apposite to mention here that before lodging the aforementioned F.I.R., the injured Arun was taken to C.H.C. Baraut, District Baghpat. The Medical Officer, who attended the injured at C.H.C. Baraut, District-Baghpat opined that injured has sustained gun shot on back of his left shoulder. He was, however, referred to District Hospital, Baghpat for X-Ray and Expert opinion by Radiologist/Further Management.
7. Subsequent to above, injured Arun was admitted at Kailashi Super Specialty Hospital, Meerut. After primary treatment, patient i.e. the injured Arun was discharged as he was referred to higher Centre i.e. AIIMS (Trauma Centre). As per Radiological report, which is at page 66 of the paper book, following was detected in the body of the injured:-
"Area of airspace consolidation noted involving upper and lower lobe right lung with cavitatory area within. Patchy areas of ground-glass haziness and consolidation noted involving under lobes of both lungs and lower lobe of right lung. Mid bilateral pleural effusion noted.
Metallic foreign body is noted in left lung at T 5 vertebral levels suggestive of the gun pellets. Metallic foreign body noted in subcutaneous tissues of back at T 5 vertebral body. Fracture left lamina and left transverse process of D5 vertebral body noted. Fracture left 4th and 5th ribs noted.
Fracture left scapula noted.
Lung fields reveal no obvious area of shagginess of lung-pleura interfaces. No obvious pulmonary nodules are appreciated.
No obvious honeycombing is seen.
No obvious area of mosaic perfusion is seen.
No evidence of emphysema is seen.
Trachea, main stem bronchi and its ramifications are normal. The HRCT Thorax of the injured reveals following impression:-
Area of airspace consolidation involving upper and lower lobe right lung with caviatory area within and patchy areas of ground-glass haziness and consolidation involving upper lobes of both lungs and lower lobe of right lung suggestive of Lung contusion. Mild bilateral pleural effusion Mettalic foreign boy in left lung at T5 vertebral levels suggestive of the gun pellets Metallic foreign body in subcutaneous tissues of back at T5 vertebral body Fracture left lamina and left transverse process of D5 vertebral body Fracture left lamina and left transverse process of D5 vertebral body Fracture left 4th and 5th ribs Fracture left scapula."
8. The injured was ultimately operated upon on 21.3.2022 at Jai Prakash Narayan Apex Trauma Centre (AIIMS) New Delhi.
9. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. He recorded the statement of first informant Satish, the injured Arun and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by him during course of investigation and the mitigating circumstance that emerged during the course of investigation, he came to the conclusion that complicity of only two of the named accused namely Balister and Yudhishthir is established in the crime in question. He, accordingly, submitted the police report under Section 173 (2) Cr.P.C., whereby named accused Balister and Yudhishthir were charge sheeted under Sections 307, 323, 504, 506 IPC.
10. Upon submission of aforementioned police report, the concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. took cognizance upon the same. However, as offence complained of is triable exclusively by the Court of Sessions, therefore, in accordance with Section 209 Cr.P.C., the concerned Magistrate committed the case to the Court of Sessions. As a consequence of above, Sessions Trial No. 290 of 2022 (State Vs. Balister and another) under Sections 307, 323, 504, 506 IPC, P.S. Chhaprauli, District Baghpat, came to be registered and is now said to be pending in the Court of Sessions Judge, Baghpat.
11. The concerned Sessions Judge proceeded with trial and in compliance of Section 211 Cr.P.C., he, accordingly, framed charges against the charge sheeted accused. The same was denied by them and they demanded trial. Resultantly, the trial procedure commenced.
12. Prosecution in discharge of it's burden to bring home the charges so framed, adduced PW-1 Satish (father of the injured/first informant) and PW-2 Arun (injured/son of first informant).
13. After the statement-in-chief/examination-in-chief of aforesaid prosecution witnesses was recorded, the prosecution filed an application under Section 319 Cr.P.C. (Paper No.-16-Ba) praying therein that since complicity of named but not charge sheeted accused Adesh is also established in the crime in question as per the depositions of PW-1 and PW-2, therefore, he be also summoned to face trial in aforementioned Sessions trial.
14. Above mentioned application under Section 319 Cr.P.C. filed by the prosecution/first informant was opposed by the charge sheeted accused. They, accordingly, filed their objections to the same, which was registered as (Paper No. 18-B).
15. Court below, thereafter, proceeded to consider the application under Section 319 Cr.P.C. filed by the prosecution. It, accordingly, examined the allegations made in the application and evaluated the same in the light of the material on record as well as the depositions of P.W.-1 and P.W.-2. Having undertaken the aforesaid exercise, Court below came to the conclusion that since complicity of named but not charge sheeted accused Adesh has also emerged in the deposition of P.W.-1 in the crime in question particularly and P.W.-2, therefore, he should also be summoned to face trial. Accordingly, Court below by means of order dated 31.07.2023 allowed the application under Section 319 Cr. P. C. (Paper No. 16 B) filed by the prosecution/first informant and consequently, summoned the prospective accused i.e. the revisionist to face trial in above mentioned Sessions Trial.
16. Thus, feeling aggrieved by the above order dated 31.07.2023 passed by Court below, the revisionist, who has been summoned by Court below to face trial, has approached this Court by means of present criminal revision.
17. Mr. Vivek Kumar Singh, the learned counsel for revisionist in challenge to the order impugned dated 31.07.2023 submits that the order impugned in present criminal revision is manifestly illegal and therefore, the same is liable to be set aside by this Court. In furtherance of aforesaid submission, it is urged by the learned counsel for revisionist that the revisionist is a named accused in the FIR dated 19.03.2022 giving rise to present criminal proceedings. In view of above, the complicity of the revisionist, if any, in the crime in question was thoroughly investigated by the Investigating Officer but no such incriminating material was gathered by him on the basis of which, the complicity of present revisionist in the crime in question could be conclusively concluded. The independent witnesses examined by the Investigating Officer under Section 161 Cr.P.C. during course of investigation i.e. (1) Parag, (2) Jitendra, (3) Ompal, (4) Amit Kumar, (5) Bhalendra, (6) Satyendra, (7) Harendra, (8) Narendra, (9) Rajendra, (10) Suresh and (11) Rajveer have not implicated the revisionist in the crime in question. It is on account of above that the revisionist was rightly exculpated by the Investigating Officer in the police report dated 03.04.2022 submitted by the Investigating Officer in terms of Section 173(2) Cr.P.C.
18. It is then contended that revisionist Adesh is the son of named and charge sheeted accused Balistar. Both the prosecution witnesses examined up to this stage i.e. PW-1 Satish (father of the injured/first informant) and PW-2 Arun (injured/son of first informant) have in their depositions before Court below falsely implicated the revisionist in the crime in question.
19. Learned counsel for revisionist has then drawn a parallel in between the statements of Satish and Arun recorded under Section 161 Cr.P.C., which are on record as Annexures 1 and 2 to the affidavit and their depositions before Court below. He has then drawn a parallel between the same and on basis thereof, he submits that no such new but reliable material has emerged in the depositions of aforesaid witnesses so as to infer the complicity of revisionist in the crime in question.
20. On the above premise, he, therefore, contends that no prima-facie case was made out to summon the revisionist in aforementioned Sessions Trial. As per the material on record, the Court below could not have recorded a satisfaction that a prima-facie case for summoning the prospective accused is made out. As such, the Court below while passing the order impugned has not only committed a jurisdictional error but has also exercised it's jurisdiction with material irregularity inasmuch as, no attempt has been made by Court below to weigh and evaluate the statements of the independent witnesses examined under Section 161 Cr.P.C. which has vitiated the order impugned. Consequently, the same is liable to be set aside by this Court.
21. Per contra, the learned A.G.A, for State-opposite party-1 and Mr. Raj Kumar Dhama, the learned counsel representing first informant opposite party-2 have vehemently opposed the present criminal revision. They submit that order impugned in present criminal revision is perfectly just and legal. No illegality has been committed by Court below in passing the order impugned. Learned A.G.A. has referred to the order impugned. On basis thereof, he contends that both the prosecution witnesses examined up to this stage i.e. PW-1 and PW-2 have also been cross examined on behalf of charge sheeted accused. As such, their depositions before Court below now fall in the realm of legal evidence. Both the prosecution witnesses have remained consistent. No contradiction, embellishment or exaggeration has emerged in the statements of aforementioned witnesses. Both the witnesses have not only supported the FIR but have also detailed the manner of occurrence. As per the depositions of afore-mentioned witnesses, all the three accused have been assigned the role of firing by country made weapons. It has come in evidence that named accused Yudhisthir fired at Arun, whereas Adesh and Balistar fired at first informant Satish. In spite of lengthy cross examination of aforementioned witnesses on behalf of charge sheeted accused, nothing adverse could be culled out from them so as to render them unworthy of credit and therefore, their statements are unworthy of trust. Learned A.G.A. thus concludes that it is not only the mere complicity of the revisionist that has emerged in the crime in question but also strong and cogent evidence has emerged against revisionist as he has actively participated in the commission of the crime in question. On the above conspectus, the learned A.G.A. contends that the order impugned is not liable to be interfered with by this Court. Consequently, the present criminal revision is liable to be dismissed.
22. Mr. Raj Kumar Dhama, the learned counsel representing first informant-opposite party-2 has also opposed the present criminal revision. He has, however, adopted the arguments raised by the learned A.G.A.
23. Having heard Mr. Vivek Kumar Singh, the learned counsel for revisionist, the learned A.G.A. for State-opposite party-1 and Mr. Raj Kumar Dhama, the learned counsel representing first informant opposite party-2 and upon perusal of record, this Court finds that the primary issue, which arises for determination in present revision is: What are the parameters for exercise of jurisdiction under section 319 Cr.P.C.? As a corollary to above, Court will also have to consider;-Whether the order impugned is within the established parameters or not?
20. Parameters regarding exercise of jurisdiction under section 319 Cr.P.C. have been considered time and again by the Supreme Court. The chronology of same is as under:
(i) Dharam Pal and Others Vs. State of Haryana and Another, (2014) 3 SCC 306 (Five Judges Bench)
(ii) Hardeep Singh Vs. State of Punjab and Others, (2014) 3 SCC 92 (Five Judges Bench) Paragraphs 4,5,6,6.5, 7, 11, 55, 56, 57, 85, 92, 105, 106, 116, 117.1 to 117.6.
(iii) Babubhai Bhimabhai Bokhiria and Another Vs. State of Gujarat and Others, (2014) 5 SCC 568 Paragraphs 7, 8, 9, 15, 20, 21 and 22.
(iv) Jogendra Yadav and Others Vs. State of Bihar and Another, (2015) 9 SCc 244 Paragraph 13.
(v). Amrutbhai Shambhubhai Patel Vs. Suman Bhai Kantibhai Patel and Others, (2017) 4 SCC 177,
(vi) Brijendra Singh and Others Vs. State of Rajasthan, (2017) SCC 706 Paragraphs 13, 14 and 15.
(vii) S Mohammed Ispahani Vs. Yogendra Chandak and Others, (2017) 16 SCC 226 Paragraphs 31, 32, 33, 34, 35, 36 and 37.
(viii) Deepu @ Deepak Vs. State of Madhya Pradesh, (2019) 2 SCC 393 Paragraph 7.
(ix) Dev Wati and Others Vs. State of Haryana and Another (2019) 4 SCC 329 Paragraph 8 and 9.
(x) Periyasamai and Others Vs. S.Nallasamy, (2019) 4 SCC 342 Paragraphs 13, 14, 15 and 16.
(xi) Sunil Kumar Gupta and Others Vs. State of Uttar Pradesh and Others, (2019) 4 SCC 556 Paragraphs 13 and 14.
(xii) Labhuji Amratji Thakor Vs. State of Gujarat, (2019) 12 SCC 644 Paragraphs 10, 11 and 12.
(xiii) Rajesh and Others Vs. State of Haryana, (2019) 6 SCC 368 Paragraphs 6.8, 6.9, 6.10, 7 and 8.
(xiv) Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638 Paragraphs 22, 23, 24, 25, 26 and 27
(xv) Shiv Prakash Mishra Vs. State of Uttar Pradesh and Another, (2019) 7 SCC 806 Paragraphs 13, 14, 15, 16 and 17 (xvi) Mani Pushpak Joshi Vs. State of Uttarakhand and Another, (2019) 9 SCC 805 Paragraphs 12, 13, 14, 15 and 16.
(xvi) Sugreev Kumar Vs. State of Punjab and Others, (2019) SCC Online Sc 390 Paragraphs 18, 19, 20, 21, 22 and 23.
(xviii) Saeeda Khatoon Arshi vs. State of Uttar Pradesh and Another, (2020) 2 SCC 323, (xix). Ajay Kumar @ Bittu and Another Vs. State of Uttarakhand and Another, (2021) 4 SCC 301 (xx) Sartaj Singh Vs. State of Haryana and Another, (2021) 5 SCC 337 Paragraphs 14, 15, 16 and 17 (xxi) Manjeet Singh Vs. State of Haryana and Others, 2021 SCC Online SC 632 Paragraphs 34, 35, 36, 37 and 38.
(xxii) Ramesh Chandra Srivastava Vs. The State of U.P. and another, 2021 SCC Online (SC) 741 Supreme Court remanded the matter before Sessions Judge for decision afresh. (xxiii). Sagar Vs. State of U.P., 2022 SCC OnLine 289 (xxiv). Naveen Vs. State of Haryana and Others, (2022) 10 SCC 537 (xxv). Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289 (Five Judges Bench), Paragraphs 7, 37, 38 and 41.
(xxvi). Jhuru and Others Vs. Qarim and Another, (2023) 5 SCC 406, (xxvii). Jitendra Nath Mishra Vs. State of U.P. and Another, 2023 (7) SCC 344, (xxviii). Vikas Rathi Vs. State of U.P., 2023 SCC OnLine SC 211, (xxix) Yashodhan Singh and Another Vs. State of U.P. and Another, (2023) 9 SCC 108, Paragraphs 39, 40, 41, 42 and 43.
(xxx) Sandeep Kumar Vs. State of Haryana, 2023 SCC OnLine SC 888, (xxxi). Aarif and Others Vs. State of Rajasthan and Another, 2023 SCC OnLine SC 1375 (xxxii). Gurdev Singh Bhalla Vs. State of Punjab and Others, (2024) 3 SCC 172 (xxxiii). N. Manogar and Another Vs. Inspector of Police and Others, 2024 SCC OnLine SC 174 (xxxiv). Shankar Vs. State of Uttar Pradesh and Others, 2024 SCC OnLine SC 730.
25. With the aid of above, the Court now proceeds to examine the veracity of impugned order dated 31.07.2023 passed by Sessions Juge, Baghpat in Sessions Trial No 290 of 2022 (State Vs. Balister and others), under Sections 307, 323, 504, 506 IPC, P.S. Chhaprauli, District Baghpat, whereby revisionists have been summoned under Section 319 Cr.P.C. to face trial in above-mentioned Sessions Trial.
26. Before proceeding to do so, it must be noticed that following issues stand settled as per judgements mentioned herein above and, therefore, they are not required to be dealt with.
27. A non-charge sheeted accused can be summoned by the Court of Sessions after the case has been committed to the Court of Sessions under Section 193 Cr.P.C. and for that purpose need not wait for the evidence of the witnesses to be recorded so that non-charge sheeted accused could be summoned under Section 319 Cr.P.C., vide Five Judges Bench Judgment in Dharam Pal (Supra).
28. Ambit and scope of powers under Section 319 Cr.P.C. now stand crystallized by Supreme Court in paragraph-34 of the judgement in Manjeet Singh (supra).
29. A prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness without getting his examination-in-chief recorded, vide Five Judges Bench judgment in Hardeep Singh (Supra).
30. The Court while summoning a prospective accused must come to the conclusion that a prima-facie case for summoning a prospective accused is made out and in this regard, the Court must record it's satisfaction in consonance with the observation made in paragraph 106 of the Five Judges Bench judgment in Hardeep Singh (Supra).
31. Though in view of the law laid down by the Five Judges Bench in Hardeep Singh (Supra) that a prospective accused can be summoned on the basis of statement-in-chief of one prosecution witness but in case, if the statement of the witness, who have deposed before Court below, was also recorded under Section 161 Cr.P.C. then in such a circumstance, the Court must draw a parallel in between the deposition of the witness as well as his statement under Section 161 Cr.P.C. to find out whether something new has emerged in the deposition or not, vide Brijendra Singh (Supra).
32. The Court must consider the plethora of evidence collected by the Investigating Officer during the course of investigation as it is a relevant material, vide Brijendra Singh (Supra).
33. A prospective accused can be summoned only if, an inference of guilt of the accused can be drawn as per the material on record, vide Brijendra Singh (Supra).
34. The power under Section 319 Cr.P.C. is an extraordinary discretionary power, which should be exercised sparingly, vide S Mohammad Ishpahani (Supra).
35. A prospective accused should not be summoned by a Court by exercising it's jurisdiction in a casual and cavalier fashion but diligently, vide S Mohammad Ishpahani (Supra).
36. Court can summon a prospective accused by exercising power under Section 319 Cr.P.C. only when some strong and cogent evidence has emerged against a prospective accused and not merely on the basis of his complicity in the crime in question, vide S Mohammad Ishpahani (Supra).
37. In the judgments referred to above, there is a common thread that the Court can scrutinize the evidence/material on record while exercising power under Section 319 Cr.P.C.
38. The evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist, the said statement is not to be discarded lightly, vide paragraph 37 of the judgement in Manjeet Singh (Supra).
39. An accused who has been summoned by the Court below in exercise of power under section 319 Cr.P.C., cannot claim discharge, vide S. Mohammaed Ispahani (Supra) and Vikas Rathi (Supra).
40. In Sukhpal Singh Khaira (Supra), a subsequent Bench of Supreme Court opined that the law laid down by Constitution Bench in Hardeep Singh (Supra) requires re-consideration as certain questions remain unanswered in the Constitution Bench Judgement and further the parameters regarding exercise of jurisdiction under section 319 Cr.P.C need to be re-laid down.
41. In Rajesh and Others (Supra), it has been held that failure on the part of first informant in not filing a protest petition against the charge-sheet, cannot be treated as an impediment or bar in exercise of jurisdiction under section 319 Cr.P.C.
42. The reference made by a Two Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638, was answered by another Five Judges Bench judgment in Sukhpal Singh Khaira Vs. State of Punjab, (2023) 1 SCC 289. The Court held that "The power under Section 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable.". Thereafter, the Court also laid down the guidelines to be followed while exercising jurisdiction under Section 319 Cr.P.C.
43. A prospective accused is not required to be heard before an order under Section 319 Cr.P.C. is passed against him, vide Yashodhan Singh and Others (Supra).
44. In Sandeep Kumar (Supra), the Court after noticing paragraphs 95 to 106 of the Five Judges Bench judgment in Hardeep Singh (Supra), considered the ingredients of Section 149 IPC and with reference to above, upheld the order of trial Court, on the finding that in case, a person is a member of an unlawful assembly, the ingredients of Section 149 IPC are satisfied and therefore, no material qua the innocence of such an accused is required to be looked into at the stage of deciding an application under Section 319 Cr.P.C.
45. Having noted the settled position, the Court is now required to consider whether on the basis of depositions of PW-1 and PW-2, the revisionist could have been summoned by court below. As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier fashion."
46. Before proceeding to examine and evaluate the depositions of PW-1 and PW-2 before Court below and the other material collected by the Investigating Officer during course of investigation, it may be notice that a Five Judges Bench of the Supreme Court in Hardeep Singh (Supra) has laid down the parameters regarding exercise of jurisdiction under Section 319 Cr.P.C.
47. The Bench has observed that a prospective accused can be summoned on the basis of the statement-in-chief of one prosecution witness alone and the Court need not wait for the entire prosecution evidence to be recorded. In the case in hand, the application under Section 319 Cr.P.C. for summoning the prospective accused i.e. the revisionist was filed after the statement-in-chief/examination-in-chief of PW-1 and PW-2 was recorded and not after the entire prosecution evidence had been recorded. In view of the law laid down by the Apex Court as noted herein above, no illegality can be said to have been committed by Court below in deciding the application under Section 319 Cr.P.C. in the light of depositions of two prosecution witnesses only.
48. It has also been laid down by the Bench in aforementioned judgment that a prospective accused can be summoned only after the Court records it's satisfaction to the effect that a prima-facie case for summoning the prospective accused is made out. What will be the nature of satisfaction that is required to be observed by a Court before summoning a prospective accused is no longer shrouded in obscurity but stands crystallized in paragraph 106 of the aforementioned report. For ready reference, the same is extracted herein under:-
"106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The 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. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."
49. The Court has now to consider as to whether the satisfaction, which is required to be observed, could have been observed on the basis of the depositions of PW-1 Satish (first informant/father of the injured) and PW-2 Arun (injured/son of first informant). Upon evaluation of the depositions of PW-1 and PW-2, this Court finds that the statements of PW-1 and PW-2 were also recorded under Section 161 Cr.P.C. PW-1 Satish in his statement under Section 161 Cr.P.C. has not stated any such fact which may go to detail the manner of occurrence. Similarly PW-2 in his statement under Section 161 Cr.P.C. has partially detailed the manner of occurrence. However, both the witnesses in their depositions before Court below have come out with a clear and categorical case that shots were fired by named accused Adesh and Balistar upon first informant Satish, whereas Yudhisthir fired at Arun (the son of first informant). The prosecution witnesses, who have deposed up to this stage i.e. PW-1 and PW-2, have also been cross examined on behalf of charge sheeted accused but no such statement could be culled out from them so as to discredit their credibility and also the reliability of their depositions. In view of above, the Court finds that it is not only the complicity of all the three named accused that has emerged in the crime in question but also strong and cogent evidence has emerged against them inasmuch as, the role of firing has been assigned to all the three named accused including the revisionist. In view of above, the caution laid down by the Apex Court in S. Mohammad Ishpahani (Supra), is clearly satisfied in the present case.
50. Admittedly, PW-2 Arun is an injured eye witness. This witness in his deposition before Court below has not only supported the FIR but has also detailed the manner of occurrence. This witness was also cross examined on behalf of charge sheeted accused but the defence failed to dislodge the aforesaid witness. As such, his testimony before Court below has come out unscratched from the furnace of cross examination. Since strong and cogent evidence has emerged against the revisionist, in the deposition of aforementioned witness before Court below, which is much more than mere complicity of the revisionist in the crime in question, the parameters laid down by Apex Court in the case of Brijendra Singh (Supra) to the effect that only when an inference regarding the guilt of an accused can be inferred from the material on record only then, the application under Section 319 Cr.P.C. be allowed, is fully attracted.
51. Apart from above, the Apex Court in the case of Manjeet Singh (Supra), has held that the evidence of an injured eye witness has greater evidentiary value and unless compelling reasons exist the said statement is not to be discarded lightly neither in the grounds of revision nor at the time of argument any such material could be pointed out by the learned counsel for revisionist from the record so as to disbelieve PW-2 Arun (the injured eye witness).
52. In view of the discussions made above, the inescapable conclusion is that the revisionist, who is a prospective accused inasmuch as, he was named in the FIR but not charge sheeted. As per the depositions of PW-1 and PW-2 before Court below it is not only the complicity of the revisionist, which has emerged in the crime in question but also strong and cogent evidence has emerged against him inasmuch as, the role of firing by a country made pistol has also been attributed to the present revisionist. Both PW-1 and PW-2 in their depositions before Court below have improved upon their earlier statements recorded under Section 161 Cr.P.C. They have not only supported the FIR but have also detailed the manner of occurrence. In spite of lengthy cross examination of aforementioned prosecution witesses, the defence could not cull out any such fact so as to discredit their credibility/reliability. PW-2 is an injured eye witness and therefore, by virtue of the law laid down by the Apex Court in Manjeet Singh (Supra), the same has greater evidentiary value and cannot be discarded lightly but only when compelling circumstances exist. Learned counsel for revisionist could not point out any such compelling circumstance from the record so as to disbelieve PW-2. As per the depositions of PW-1 and PW-2, strong and cogent evidence has emerged against the revisionist, which is much more than mere complicity of the revisionist, in the crime in question.
53. As a result, the present criminal revision fails and is liable to be dismissed.
54. It is, accordingly, dismissed.
55. Considering the facts and circumstances of the case, the cost is made easy.
Order Date :- 08.07.2024 Vinay