Patna High Court - Orders
Rajendra Singh & Ors. vs The State Of Bihar on 3 April, 2013
IN THE HIGH COURT OF JUDICATURE AT
PATNA
Criminal Miscellaneous No.40800 of 2011
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1. Rajendra Singh S/O Jai Singh Resident Of Village - Bindagaon , P.S. -
Koilawar , District - Bhojpur , Residing At Chota Govindpur , P.S - Chota
Govindpur , District Jamshedpur , Jharkhand
2. Ravindra Singh S/O Ramswaroop Singh Resident Of Village -
Bindagaon , P.S. - Koilawar , District - Bhojpur , Residing At Chota
Govindpur , P.S - Chota Govindpur , District Jamshedpur , Jharkhand
3. Jai Singh S/O Ram Swaroop Singh Resident Of Village - Bindagaon ,
P.S. - Koilawar , District - Bhojpur , Residing At Chota Govindpur , P.S -
Chota Govindpur , District Jamshedpur , Jharkhand
4. Bharat Bhushan Singh S/O Ravindra Singh Resident Of Village -
Bindagaon , P.S. - Koilawar , District - Bhojpur , Residing At Chota
Govindpur , P.S - Chota Govindpur , District Jamshedpur , Jharkhand
5. Digvijay Singh S/O Ravindra Singh Resident Of Village - Bindagaon ,
P.S. - Koilawar , District - Bhojpur , Residing At Chota Govindpur , P.S -
Chota Govindpur , District Jamshedpur , Jharkhand
.... .... Petitioner/s
Versus
1. The State Of Bihar
2.PradipKumar Singh son of Late Rup Narayan Singh, resident of Bindgaon
P.S.Koilwar District Bhojpur.
.... .... Opposite Party/s
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Appearance:
For the Petitioners : Mr. Rana Pratap Singh, Sr. Adv.
Mr. Kumar Uday Singh, Adv.
Mr. Madanjeet Kumar, Adv.
For the O.P.No.2 : Mr. Bibhakar Tiwary, Adv.
For the State : Mr. Rajesh Kumar, APP.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY.
CAV
4 03-04-2013Heard learned counsel for the petitioners and the State.
In this case petitioners are challenging the order dated 16th November 2011 passed by the 3rd Additional Sessions Judge, Bhojpur, Ara in Sessions Trial No. 202 of 2001 whereby and whereunder the petitioners have been asked to stand trial in 2 Patna High Court Cr.Misc. No.40800 of 2011 2 / 10 the aforesaid case.
An FIR was lodged by one Roop Narayan Singh making allegation that there was a dispute concerning dumping of garbage. The accused side were objecting the dumping and the informant side was giving assurance for removal of the same. On the fateful day, the accused persons came to the P.O. and the petitioners on the exhortation of some of the accused persons, named in the FIR resorted to firing which led to death of two persons and one animal. The Police and the C.I.D. investigated the case and submitted charge sheet in connection with other persons, save and except four persons, the Police after investigation found that petitioners Rajendra Singh, Ravindra Singh and Bharat Bhushan Singh were not involved in the crime whereas T.P.Singh who was named in the FIR could not be identified. Police submitted report that said T.P. Singh is not being identified even on the basis of additional evidence, if any, during investigation. The court took cognizance against the persons who have been shown as accused by the Police in the charge sheet but did not call upon these petitioners to face trial. During the trial, altogether eight witnesses were examined and only Doctor and the I.O. were left to be examined from the prosecution side.
An application under Section 319 Cr.P.C. was filed 3 Patna High Court Cr.Misc. No.40800 of 2011 3 / 10 where attention was drawn to the evidence of P.Ws. 1, 4, 5, 7 and
8. The court found sufficient material for issuing summons to the petitioners to stand the trial.
Counsel for the petitioners has submitted that so far Ravindra Singh is concerned, as per allegation, he was only standing there without any arms was only instigating to commit the crime. So far Rajendra Singh and Bharat Bhushan Singh are concerned, counsel for the petitioners submitted that there were no sufficient materials before the court for forming an opinion for the purpose of calling them to stand trial. In connection with Digvinjay Singh it has been submitted that though the name of T.P. Singh is there in the FIR and specific allegation has been made against him, but no one could identify T.P.Singh and the Police in the Final Form has shown inability to identify T.P.Singh.
It has further been submitted that there cannot be any occasion to claim T.P.Singh to be Digvijay Singh. It has been submitted that the witnesses who have been examined during the trial and have claimed to be eye witnesses but their evidence would shows that they were not present at the P.O. as in their cross-examination they have stated that they did not disclose during the investigation any of the persons, including the Police that they were the eyewitnesses to the occurrence and, as such, for 4 Patna High Court Cr.Misc. No.40800 of 2011 4 / 10 the first time, during the trial claimed to be eye witness is nothing but improvement of story for the purpose of implicating these petitioners.
Counsel for the petitioners also submitted that P.W.1 has admitted the fact that Ravindra Singh and his sons lived at Jamshedpur. He further submitted that materials are not sufficient on the basis of which opinion could be formed lead to probability of their conviction and, therefore, the court ought to have refused to call upon these petitioners to stand trial.
Learned counsel for the petitioners relied on the judgments reported in (2005)12 SCC 431 and (2004)7 SCC 792.
Counsel for the other side has submitted that at the stage of forming opinion for the purpose of Section 319 Cr.P.C. only the prima facie materials are to be seen and it is not required to minutely scrutinize the materials. The court was required to form an opinion about probability of conviction on the basis of materials that has come during the trial.
The issue of summoning the persons to stand the trial on the basis of materials which came during the trial is no longer res integra, as the Hon'ble Supreme Court in the case of Michael Machado v. State of Punjab, reported in (1979)1 SCC 345 has held that the basic requirement for invoking the aforesaid Section 5 Patna High Court Cr.Misc. No.40800 of 2011 5 / 10 is that it should appear to the Court from the evidence collected during the trial or the enquiry that some person who was not arraigned as an accused in that case had also committed an offence for which that person should be tried along with other accused persons already arraigned. The Court further gave the guidelines that the power should not be exercised in a case of some doubt but from the evidence it should also appear to the Court about the involvement of that person in the said crime. In other words, the Court must have reasonable satisfaction from the evidence has already been collected regarding two aspects. First is that other person has committed that offence and second is that in such offence that person should be tried along with the person already arraigned as an accused. The discretionary power should be exercised only to achieve the criminal justice system and the court should not turn against another person whenever it comes across evidence connecting that other accused also with the offence. The Court has given guidelines, the trial has proceeded and the quantum of evidence collected till then and also the amount of time which the court had spent for collecting the evidence. It has been further held that extraordinary power has been conferred on the court under Section 319 of the Code should be exercised very sparingly and in compelling situation, reasons exist for taking 6 Patna High Court Cr.Misc. No.40800 of 2011 6 / 10 cognizance against the other person. This power should not be exercised only on mere suspicion but the court must be hopeful that there is a reasonable prospect of the case as against the newly added accused ending in being convicted of the offence concerned.
This principle has been reiterated in several judgments, including:
(2007)8 SSS 224 (Guriya alias Tabassum Tauquir and others vs. State of Bihar and another. (2008)14 SCC 51 (Kailash v State of Rajasthan and another), (2009)2 SCC 696 (Lal Suraj alias Suraj Singh and another v. State of Jharkhand), 2007)14 SCC 544 ( Mohd. Shafi v. Mohd. Rafiq and another); and (2009)3 SCC 329 (Brindaban Das and others v. State of West Bengal).
In view of the aforesaid judgments, the test provided, the materials that have been collected during the trial are sufficient for probability of conviction, let the present case be decided on the test laid down in the aforesaid casers.
It appears from the record that altogether eight witnesses have been examined out of whom, P.Ws. 1, 4, 5, 7 and 8 7 Patna High Court Cr.Misc. No.40800 of 2011 7 / 10 are relevant for consideration for the purpose of exkercise of power under Section 319 of the Code. P.W.1 in Para-1 has specifically stated that Rajendra Singh (Petitioner No.1), Ravindra Singh (Petitioner No.2), Bharat Bhushan Singh (Petitioner No.4) and T.P.Singh @ Digvijay Singh(Petitioner No. 5) came to the house of the informant where allegation has been made that Ravindra Singh (Petitioner No.2), Jay Singh (dead), Sudhar Singh, all the three exhorted to kill the informant side whereupon Ramesh Singh and Rajendra Singh resorted firing which caused firearm injury to Pancham Singh. Bharat Bhushan Singh fired which hit the cow, T.P. Singh resorted firing which hit Devendra Singh, who ultimately died. Hence, firings led to death of Pancham Singh and Devendra Singh.
Counsel for the petitioners in connection of evidence of this witness has pointed out that he for the first time during trial has claimed to be eye witness and he had never claimed to be the same as in Para-37 he accepted that he had not stated the fact of being eye witness to any person. P.W.3 in Para-2 took the name of Ravindra Singh where allegation has been made that he along with two other accused persons, namely, Jay Singh and Sudhar Singh called other accused persons to kill the informant side whereupon other accused persons Ramesh Singh, Rajendra Singh, T.P.Singh 8 Patna High Court Cr.Misc. No.40800 of 2011 8 / 10 @ Digvijay Singh, Bharat Bhushan Singh, Umesh Singh, Manoj Singh rushed, started firing, led to death of two persons and one animal. This witness has corroborated the statement of P.W.1, took the name of petitioners who were indulged in committing the offence. In Para-19 and 20, as has been pointed out by the counsel for the petitioners, this witness also claimed to be the eye witness but for the first time, during trial, he made this statement. P.W.4 in Para-2 has also corroborated the statements of earlier two witnesses which is not required to be narrated as this witness also stated that Ravindra Singh (Petitioner No.2), exhorted to commit crime whereas the other petitioners, including T.P.Singh who has been claimed to have alias name Digvijay Singh had indulged in resorting to firing. P.W.5 who is the informant has also supported the evidence of the earlier witnesses as mentioned hereinabove in Para-1 & 2 of the deposition. This Court is not required to test the evidence in context of ultimate conclusion for conviction of the petitioners of this case but to test whether there was any reasonable prospect of their conviction. At this stage, the Court is not required to see the proof beyond reasonable doubt but the probability or likelihood of their conviction is test for issuance of summons under section 319 of the Code. Ravindra Singh as has been submitted by the counsel for the petitioner that this 9 Patna High Court Cr.Misc. No.40800 of 2011 9 / 10 petitioner was not armed, rather he was only an instigator of the crime, should not have been called by the court below but from the evidence it appears that he has actively participated in the crime by exhorting other accused persons to kill the informant side which is sufficiently leading to probability of conviction as he was not a mute expectator rather calling upon persons to kill them. So far T.P.Singh is concerned, who could not have been identified by the Police in absence of his identity but during the trial he was identified by the witnesses an his alias name was also given by them and from the evidence of the aforesaid witnesses, it appears that T.P.Singh @ Digvijay Singh was also a party to the committing offences and materials are sufficient to form a just opinion for prima facie case against him. The evidences are sufficient where the court has rightly called upon to stand the trial. So other witnesses are concerned, it is not required to be repeated again save and except that materials as stated hereinabove are sufficient for forming an opinion of likelihood of their conviction, the Court is justified for issuance of notice to the petitioners of this case. The evidence collected during the trial is not of weak character that the persons aforesaid cannot be convicted in the trial, as the Hon'ble Supreme Court in Lal Suraj's case (supra) has opined that it is not so that the material collected may not lead to 10 Patna High Court Cr.Misc. No.40800 of 2011 10 / 10 conviction of the aforesaid persons as the members of petitioners are more than five as alleged each of petitioners actively participated in the commission of the offence. It is also proper to deal with the argument of the petitioners that Ravindra Singh and his sons were living at Jamshedpur cannot be a ground that on the day of offence, they were not present and not actively participated in the offence as alleged. The plea of alibi can be taken by the petitioners at the proper stage by bringing proper evidence and court below will decide the pleas of alibi at the right stage.
This Court does not find any error in the order impugned. Accordingly, this petition is dismissed. The order passed in the present case will not have any bearing on the merit of trial.
Jay/- (Shivaji Pandey, J)