Allahabad High Court
Manoj Yadav vs State Of U.P. And Another on 19 October, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 80 Case :- CRIMINAL APPEAL No. - 5291 of 2021 Appellant :- Manoj Yadav Respondent :- State of U.P. and Another Counsel for Appellant :- Anurag Dubey,Ajeet Singh Counsel for Respondent :- G.A.,Ashutosh Yadav Hon'ble Om Prakash Tripathi,J.
Heard learned counsel for appellant, learned counsel for opposite party no. 2 and learned A.G.A. for State.
This criminal appeal has been preferred against order dated 25.10.2021 passed by Special Judge, SC/ST Act, Sant Kabir Nagar in S.T. No. 322/2020 (State Vs. Ramachal and others), under Sections 147, 148, 149, 452, 504, 302, 323, 506, 308 I.P.C. and 3(2)(V) SC/ST Act and 7 C.L.A. Act, P.S.- Mahuli, District- Sant Kabir Nagar, by which trial court has summoned the appellant for facing the trial under Section 319 Cr.P.C. along with other accused.
Learned counsel for appellant submitted that appellant was not named in the F.I.R. About 12 days after the incident second application was given by the informant and name of the appellant surfaced during investigation on the basis of statement of witnesses. Informant PW-1 was not present on the spot and was not eye witness. His evidence is not reliable. It is also submitted that at the time of incident appellant was busy in preparation of Aayushman Card for his father and believing the plea of ali bi Investigating Officer has exonerated appellant. Appellant has been falsely implicated in this case due to enmity between Manoj and Kapil. Appellant has been summoned only on the basis of examination-in-chief of PW-1 who is not eye witness.
Learned counsel for appellant placed reliance in the case of Brijendra Singh Vs. State of Rajasthan, (2017) 7 SCC 706, in this case plea of ali bi was found correct by the documentary and other evidence and report of evidence collected by the I.O. is encrypted in the statement of PW-1.
In the case of Sagar Vs. State of U.P. in Criminal Appeal No. 397/2022, under Section 319 Cr.P.C. summoning cannot be done on the ground that some evidence has come against the person. The evidence should be of such nature which would satisfy the court that the said person is involved in the crime.
Learned counsel for opposite party no. 2 objected the submissions made by learned counsel for appellant and submitted that opposite party no. 2 was Ex-Gram Pradhan and deceased was the 19 years son of the informant. F.I.R. has been lodged within two and half hours from the time of occurrence. Apart from deceased there are six other injured who has supported the case of prosecution and present and involvement of the appellant in the said occurrence is corroborated. The role assigned to the appellant was that at the time of the incident he was present on the spot with pistol and was threatening that no body came to intervene in the occurrence for saving the deceased. In the postmortem report, deceased sustained nine injuries. About six ribs fractured and both lungs ruptured. Manoj was also known by the other injured witness. The incident took place on 26.07.2020 at 7:00 p.m. against five named accused charge sheet has been filed and informant came to the knowledge about involvement of Manoj then second application was given. Learned counsel for opposite party no. 2 also placed reliance on Section 6 of Evidence Act about relevancy of the statement of PW-1 and also Section 8 of SC/ST Act with regard to presumption. It is also submitted that at the time of summoning under Section 319 Cr.P.C. evidence should not be appreciated only a case more than prima facie should be present for summoning the accused. Learned counsel for opposite party no. 2 has placed reliance in the case of Krishan Kumar Malik Vs. State of Haryana in Criminal Appeal No. 1252/2011 decided on 04.07.2011, relates to Section 6 of Evidence Act regarding abduction and solitary which relates to evidence of prosecutrix.
In Hardeep Singh vs. State of UP (2014) 3SCC 92 Apex Court has laid down in paragraph nos.105 and 106.
105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary 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.
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.
The test as laid down by the Constitution Bench of this Court for invoking power under Section 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 Cr.P.C. should be exercised. The power cannot be exercised in a casual and cavalier manner. The test to be applied, is one which is more than prima facie case which is applied at the time of framing of charges. Object of engrafting Section 319 Cr.P.C. is not allow a person who deserves to be tried to go scot-free.
In the present case, appellant was not named in the F.I.R. The name of appellant came when second application was moved by informant on the basis of knowledge received by him by the injured witnesses. All the injured witnesses assigned the role to the appellant in the statement under Secton161 Cr.P.C. but the name of appellant was wrongly exonerated by the I.O. From the strong and cogent evidence on record it is prima facie proved that appellant was present at the site of incident with pistol and threatening the others not to intervene and protect the victim. In furtherance of common object so far as PW-1 was not eye witness. Reliability/admissibility of the evidence is not to be judged at this state. Against the appellant there is more than prima facie case exists and trial court has rightly summoned the appellant under Section 319 Cr.P.C. It is a murder of 19 years old young boy and six persons are injured.
On the basis of above discussion, this Court is of the view that there is no illegality, material irregularity in the impugned order and does not require interference by this Court and thus, impugned order is not liable to be set aside on the grounds mentioned in this appeal.
This criminal appeal has no force and is dismissed.
Order Date :- 19.10.2022 Sharad/-