Allahabad High Court
Neetu vs State Of U.P. And Another on 21 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On.27.01.2023 Delivered On 21.02.2023 Court No. - 89 Case :- CRIMINAL REVISION No. - 2183 of 2020 Revisionist :- Neetu Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Pankaj Kumar Gupta Counsel for Opposite Party :- G.A.,Aishwarya Pratap Singh,Mithilesh Kumar Mishra,Mohd. Asif Hon'ble Syed Aftab Husain Rizvi,J.
1. This criminal revision has been filed against the order dated 23.01.2020 passed by Additional Sessions Judge court no.5, Aligarh in S.T. No.466 of 2016 (State vs. Jay Kumar alias Jaiky and ors) crime no.244 of 2015 U/s 147 148, 149, 307, 302, 504 & 506 IPC, P.S. Tappal District Aligarh. By the impugned order, the learned court below has allowed the application U/s 319 Cr.P.C. filed by the prosecution and has summoned the revisionist to face trial with co-accused.
2. The opposite party no.2 lodged an FIR on 25.08.2015 alleging therein that on 24.07.2015 at about 11:00 pm the co-villager Jai Kumar alias Jaicky has hurled abuses on Suresh the Tau of the complainant at Hamidpur Tiraha. When the matter came to the notice of the complainant then he with Amar Pal, Shibbu and Pramod holding torch came at Hamidpur Tiraha. The persons present there stated that the matter has been pacified. When the complainant with his companions was returning to his house, on the way Jai Kumar alias Jaicky, Sandeep, Pradeep, Gopal and Ajay with country made pistols opened fire from the roof of their house and they also fired coming down from the roof with intention to kill, causing injuries to Shibbu, Bittu, Pramod. Neetu wife of Jaicky was alighting torch to facilitate the firing by Jaiky and Gopal. On the cries, Shailendra, Sudhir and others came at the spot alighting torches and rescued them. The accused have also threatened with death. Due to death of Amarpal by injury sustained, section 302 IPC was added. After investigation, charge-sheet was submitted against the named accused persons exonerating Neetu the wife of Jai Kumar (revisionist). During trial, after examination of two witnesses Bittu (P.W.-1) and Shiv Kumar alias Shibbu (P.W.-2) an application U/s 319 Cr.P.C. was filed by the prosecution to summon Neetu wife of Jai Kumar. The learned court below by the impugned order, has allowed the aforesaid application.
3. Learned counsel for the revisionist contended that all the allegations made in the first information report as well as the application U/s 319 Cr.P.C. are false and incorrect. According to postmortem report, the injured Amarpal has received single fire arm injury with blackening and scorching indicating that he has been shot from a close range. The entire prosecution story become doubtful as it is alleged that five persons were firing but single fire arm injury has been received. Further the alleged incident is of the night. The role assigned to the revisionist is that she was alighting torch from her roof to facilitate the co-accused in firing upon the victims down the street. In fact, the revisionist accused was not present at the place of occurrence and she has been falsely implicated just to harass and torture her due to enmity. It is next contended that the learned court below has passed the impugned order by misleading and incorrectly appreciating the evidence. The trial court has failed to apply the test as laid down by the Apex Court while recording its satisfaction. The test 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 led to conviction. No such satisfaction has been recorded by the trial court. The learned trial court has failed to record its satisfaction that there exists a possibility that the applicant so summoned in a likelihood would be convicted, therefore, the impugned order stands vitiated and unsustainable in the eye of law. The impugned order is wholly illegal, arbitrary, perverse and has been passed in a mechanical and cryptic manner and without application of judicial mind.
4. The learned AGA and learned counsel for opposite party no.2 contended that the revisionist is named in the FIR. The complainant and other injured witnesses have corroborated the allegations of the FIR. The Investigating Officer without any sufficient and cogent reason has exonerated the revisionist in collusion with accused. During trial, P.W. 1 & P.W. 2 have again corroborated the allegations of the FIR establishing the complicity of the revisionist accused in the incident. There is sufficient and cogent evidence against her. The learned trial court by a detailed and reasoned order has allowed the application U/s 319 Cr.P.C. There is no illegality in the impugned order.
5. The Apex Court in the case of Hardeep Singh Vs. State of Punjab AIR 2014 Supreme Court page 1400 has prescribed the standard of evidence required for exercising powers under section 319 Cr.P.C. The relevant paras 98 and 99 are as follows:
"98. Power under Section 319, Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner."
"99. Thus, we hold that though only a prima face 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."
In the case of Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC page 706 the Apex Court has reiterated the principles laid down in Hardeep Singh's case. The relevant para no. 13 is quoted below:
"13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ''evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The ''evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity."
6. FIR of this case has been lodged against six named accused for offence U/s 147, 148, 149, 307, 504 & 506 IPC. During investigation one of the injured Amarpal died. Hence section 302 IPC has been added. The revisionist is named in the FIR. The allegations of the FIR are that when the complainant and his companions were returning to their village, Jay Kumar alias Jaiky, Sandeep, Pradeep, Gopal and Ajay opened fire on them from the roof of their houses and thereafter coming down the earth with intention to kill them. Amar Pal was shot in the abdomen while Shibbu in the right foot, Pramod in the left leg and complainant in the right toe. It is further alleged that Neetu wife of Jaiky was alighting torch to facilitate the firing. The incident is of night. One person has died in the incident while according to FIR version three persons have suffered gun shot injuries. During trial, complainant Bittu alias Vineet P.W.-1 and Shiv Kumar alias Shibbu P.W.-2 have been examined. They have corroborated the allegations of the FIR and have stated that Neetu the wife of Jaiky was alighting torch to facilitate the firing by the co-accused. Both the witnesses are injured. It is settled law that the testimony of an injured witness is on a high pedestal and cannot be ignored or discarded lightly but for cogent reasons. The learned counsel for the revisionists failed to demonstrate that the evidence collected by Investigating Officer during investigation on the basis of which he has exonerated the revisionist is cogent one. There is no material on record which can be a basis to ignore the a testimony of injured witness at this stage which clearly implicates the revisionist with specific role assigned to her that she was alighting torch to facilitate the firing. It is pertinent to mention that the alleged incident is of the night. The witnesses have constantly stated about her presence at the spot and the role assigned to her. So in the form of statement of injured witness, there is cogent evidence on record. It is made clear that the observation about the testimony of injured witness is for this stage and the trial court will not be influenced by this while appreciating the evidence at final stage. Charge-sheet has been submitted against five accused persons U/s 147, 148, 149, 307, 302, 504 & 506 IPC. So there is also charge of being a member of unlawful assembly and section 147 has also been invoked. In view of this the exoneration of the revisionists can be only for the sound reasons and on the basis of cogent materials which is lacking in the present case.
7. The learned trial court has observed that the allegations are that the accused was also a member of unlawful assembly to attack the victims in prosecution of its common object and the two witnesses have been examined in support of its version and both of them are injured. Although the learned trial court has used word prima-facie evidence available on record but that cannot be a ground to interfere in the impugned order. The learned trial court may not have used the proper words but it is clear that it has analyzed the entire facts, evidence and material on record and being satisfied about the complicity of the revisionist-accused has summoned them. This Court has to judge the correctness, legality and propriety of the impugned order.
8. The other argument of learned counsel for the revisionist in respect of discrepancy and other contradictions in the prosecution case/ evidence are all matter of trial.
9. So applying test as laid down by the Apex Court on the present set of facts, it is clear that there is strong evidence than mere probability of complicity of the accused in the form of the testimony of injured witnesses and it pass the test as laid down by the Apex Court.
10. There is no illegality or infirmity in the impugned order. It needs no interference.
11. Accordingly the revision is devoid of merits and is hereby dismissed.
Order Date :- 21.02.2023
C. MANI