Allahabad High Court
Savita Devi vs State Of U.P. & Another on 4 July, 2013
Author: S.C. Agarwal
Bench: S.C. Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- CRIMINAL REVISION No. - 1246 of 2013 Revisionist :- Savita Devi Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- J.H. Khan,Gulrez Khan,W.H. Khan Counsel for Opposite Party :- Govt. Advocate,Shahroz Khan Hon'ble S.C. Agarwal,J.
This revision is directed against order dated 22.4.2013 passed by Special Judge, Siddharth Nagar in S.T. No. 233 of 2011, State Vs. Guru Prasad & others whereby the application 45-kha filed on behalf of the complainant under Section 319 Cr.P.C. was allowed and the revisionist- Smt. Savita Devi was summoned to face trial in respect of offence under Sections 147, 302/149 IPC.
Heard Sri W.H. Khan, Senior Advocate assisted by Sri J.H. Khan, learned counsel for the revisionist, learned AGA for the State as well as Sri Shahroz Khan, learned counsel for the complainant- opposite party no. 2.
In brief, the facts are that according to the FIR of Crime No. 574 of 2011, under Sections 147, 327, 452, 304 IPC, P.S. Itwa, District- Siddarthnagar lodged by the complainant- Bal Kishan, on 8.8.2011 at about 8 a.m., the accused Nand Lal started easing himself in the field of the complainant. Nand Lal used to do the same for the last 3-4 days. When the complainant asked Nand Lal not to defecate in his field, Nand Lal started quarreling. Nand Lal went back to his house and came back to the house of the complainant alongwith Ramdin, Savita (revisionist) and Guru Prasad armed with lathi, danda and sariya. They entered the house of the complainant. Wife of the complainant hid the complainant in a room. Mother of the complainant (deceased) was sitting out side the house. She asked the accused persons as to why they had come. The accused persons assaulted her resulting in serious injury on the neck and she died on spot. During investigation, the revisionist- Smt. Savita was exonerated by the Investigating Officer and charge-sheet was filed against remaining accused persons. During trial, three eye witnesses- Bal Kishan (P.W.-1), Kuldeep (P.W.-3) and Usha Devi (P.W.-4) were examined and on the basis of statements of three eye witnesses, on the application of the complainant, the trial court summoned the revisionist to face trial under Section 319 Cr.P.C. in respect of offences under Sections 147, 302/149 IPC. Hence this revision.
Sri J.H. Khan, Senior Advocate contended that the trial court has allowed the application under Section 319 Cr.P.C. without properly discussing the evidence available on record, which was entirely contradictory to the FIR version. It was also submitted that the eye witnesses' account is contrary to the medical opinion and on the basis of such evidence, no conviction can be recorded and, therefore, the trial court committed illegality in summoning the revisionist under Section 319 Cr.P.C. Sri Khan took the court through the statements of alleged eye witnesses and contended that on autopsy, only two injuries were found on the persons of the deceased. One injury was on the inner side of the lower lip whereas the fatal injury was on left side head, which was attributed by the witnesses to Nand Lal and, therefore, Smt. Savita could not have caused any injury to the deceased. Regarding the claim of the witnesses that accused persons also caused injuries to the complainant, his son and wife, it was contended that there is no mention in the FIR that any injury was caused by the accused persons to the complainant, his wife and son and the wife of the complainant was not ever medically examined at all. The complainant and his son were medically examined after three days and there is no evidence to show that any injury was caused to the complainant or his son by the accused persons including the revisionist, otherwise this fact would have found place in the FIR.
Learned AGA as well as learned counsel for the complainant supported the impugned order and submitted that learned trial court has passed the impugned order after considering the evidence available on record and it would not be proper for this Court to over turn such finding in a criminal revision. It was further submitted that the impugned order does not suffer from any error, illegality or lack of jurisdiction and no ground for interference is made out. It was further contended that the Investigating Officer had exonerated the revisionist simply on the ground that about 15 days prior to the incident, the revisionist had given birth to a child and she could not be in a position to take part in the incident. The revisionist is sitting Pradhan, who had earlier defeated the wife of the complainant in the election of Village Pradhan and her involvement in the crime is fully established by statements of P.W.-1, P.W.-3 and P.W.-4. It was also submitted that injury reports of the complainant and his son clearly established their presence at the time of incident.
I have considered the contentions of learned counsel for the parties and have gone through the evidence available on record as well as the statements of P.W.-1, P.W.-3 and P.W.-4.
As far as FIR is concerned, there is not even a whisper that any injury was caused by the accused persons to the complainant, his wife or son. The wife of the complainant was not even medically examined by any doctor. The injury reports of the complainant and his son revealed that the complainant Bal Kishan and his son Kuldeep were medically examined on 11.8.2011 i.e. after three days from the incident. Only a contusion was found on the top of right shoulder of the complainant and a circular abrasion was found below top of left shoulder of Kuldeep and these injuries are alleged to be three days old. No reason is forthcoming as to why the complainant and his son got himself medically examined after three days and why it was not mentioned in the FIR that accused persons caused injuries to the complainant and his son. Absence of any mention in the FIR clearly establishes that no such injury was caused to the complainant or his son at the time of incident. Injury reports appear to have been got prepared simply to claim that P.W.-1 and P.W.-3 are injured witnesses.
Now we are left with the post-mortem report of the deceased. Following ante-mortem injuries were found on the dead body of Smt. Jhinka Devi :-
(i) Laceration over inner aspect of lower lip size 3 x ½ c.m.
(ii) Bruise over head on left side 5 c.m. above left pinna size 5 x 4 c.m. On cutting the skin hematoma of size 4 x 3 c.m. was seen Regarding caused of death, the complainant stated that all the accused persons came to his house armed with lathi, danda and sariya and started beating him. He hid himself in a kothari. The accused persons bet his mother causing his death. In cross- examination, he admitted that his wife Usha (P.W.-3) was the defeated candidate in the election of pradhan held in the year 2010 and the revisionist Savita won the election. He further stated that his mother suffered injury on her neck and fell down and died but no neck injury was found in the post-mortem report. When the complainant hid himself in a room, he could not have seen as to who assaulted his mother. The head injury was fatal injury. The doctor- Taiyab, who performed autopsy and was examined during trial, stated that injury no. 2 could be caused by a fall on the ground. The complainant further admitted that he had told the Investigating Officer that Nand Lal had caused injuries to his mother by a sariya resulting in her death. Similarly, P.W.-2 Kuldeep son of the complainant initially stated that all the accused persons started beating his grand mother but in the examination in-chief itself, he stated that Nand Lal gave a sariya blow causing death of his grand mother. P.W.-4 Usha Devi claimed that all the accused persons beat her mother in-law.
From the statement of P.W.-1 and P.W.-3, it is amply clear that prima-facie the head injury was caused to the deceased by Nand Lal and no such injury was caused by the revisionist. The allegation that the accused persons caused injuries to the complainant, his wife and son did not find mention in the FIR and appears to be a subsequent development on the basis of legal advise.
Learned Addl. Sessions Judge did not consider the statements of alleged eye witnesses properly. The trial court, by a short order, simply stated that three eye witnesses have spoken about the involvement of the revisionist in the incident and, therefore, evidence is of such a nature, which may result in conviction of the revisionist. The trial court has not even cared to go through the cross examination of the witnesses to prima-facie find out as to whether statements of such witnesses were believable. The revisionist has not been assigned any specific role in the incident. The specific role of causing fatal injury to the deceased has been assigned to Nand Lal, who is said to have caused head injury to the deceased by a sariya. The wife of the complainant as well as revisionist fought election of Village Pradhan, wherein wife of the complainant was defeated and revisionist won the election. There appears to be electoral enmity between the parties. The revisionist gave birth just two weeks prior to the incident. The deceased sustained another injury on inner side of lower lip which could not be said to be fatal and fatal head injury was assigned by P.W.-1 and P.W.-3 to Nand Lal. The revisionist has not been assigned any specific role. In these circumstances, the trial court was not justified in summoning the revisionist under Section 319 Cr.P.C.
It is established law that the powers under Section 319 Cr.P.C. are to be exercised by the trial court very sparingly and in exceptional circumstances and only where the evidence is of such a nature which is likely to result in conviction of the person so summoned.
In Sarabjit Singh & another Vs. State of Punjab and another ; AIR (2009) SC 2792, the Apex Court has held that for the purposes of Section 319 Cr.P.C., the courts are required to apply stringent tests ; one of the tests being where evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
When we consider the facts of the case in light of the decision of the Apex Court noted above, we find that the factum of injuries of complainant and his son is not mentioned in the FIR. The Medical Certificates are three day old. The deceased sustained fatal injury on head, which has been attributed by the witnesses to Nand Lal. The revisionist has not been assigned any specific role except general allegations that all the accused persons beat the deceased. In these circumstances, I find that the complainant or the prosecution has not brought the case within the purview of stringent tests as indicated in the Sarabjeet case (supra) and it cannot be said that any certainty with the case may end in conviction of the revisionist. In these circumstances, summoning the revisionist simply for going through the formalities of a trial would only cause undue harassment of the revisionist and may not end in a desired result in favour of the prosecution. The trial court has not considered the prosecution evidence in proper prospective while disposing of the application under Section 319 Cr.P.C., which has been allowed in a mechanical manner.
In these circumstances, I have come to the conclusion that no sufficient ground existed for summoning the revisionist under Section 319 Cr.P.C. The impugned order is illegal and is liable to be set aside.
The revision is allowed. Impugned order is set aside. The application under Section 319 Cr.P.C. is dismissed.
It is, however, made clear that any observation on the evidence led by the prosecution, have been simply made for the purposes of disposal of this revision and would not be binding on the trial court at the time of final judgment in the case of co-accused and the trial court would be at liberty to form its own opinion regarding credibility of witnesses in respect of the accused persons already facing trial.
Order Date :- 4.7.2013 KU