Allahabad High Court
Vicky Verma vs State Of U.P. And Another on 24 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 89 Case :- CRIMINAL REVISION No. - 432 of 2023 Revisionist :- Vicky Verma Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sanjay Pathak Counsel for Opposite Party :- G.A. Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the revisionist and Sri Om Prakash, learned AGA appearing for the State.
This criminal revision has been filed against the order dated 04.07.2022 passed by Additional Sessions Judge/ FTC-I Kushinagar in S.T. No.34 of 2021 (State vs. Rajesh Verma) U/s 307, 323, 504 IPC, P.S. Kotwali Padrauna, District Kushinagar. By the impugned order, the learned court below on application of prosecution in exercise of powers U/s 319 Cr.P.C. has summoned the revisionist-accused to face trial with co-accused for offence U/s 307, 323 & 504 IPC.
The opposite party no.2 lodged an FIR on 23.09.2020 alleging therein that due to dispute of placing kiosk on the road side on 16.09.2020 at about 8:30 pm Dhruv Verma, Rajesh Verma, Vicky and Gilli Verma started to assault his son Shemshar Ali alias Mehtab. They all kidnapped him with intention to commit murder. On the way anyhow his son started to cry then all the accused persons abusing him, assaulted him with fists and kicks. Dhurv Verma, Gilli Verma and Vicky Verma caught hold Shamsher Ali alias Mehtab and exhorted Rajesh Verma to inflict knife blow. On this Rajesh Verma inflicted knife blow to Shamsher Ali, the son of the complainant fell down and became unconscious. He was taken to the hospital by ambulance from where he was referred to medical college Gorakhpur where he is under treatment. After investigation, charge-sheet was submitted only against Rajesh Verma for offence U/s 307, 323 & 504 IPC. During trial, the injured Shamsher Ali alias Mehtab has been examined as P.W.-1. Thereafter prosecution moved an application u/s 319 Cr.P.C. to summon Dhruv Verma and Vicky Verma. The learned trial court below by the impugned order, partly allowed the application for accused Vicky Verma and summoned him to face trial with co-accused.
Learned counsel for the revisionist contended that the victim/ injured Shamsher Ali alias Mehtab in his statement U/s 161 Cr.P.C. has stated only about the complicity of Rajesh Verma that he assaulted and inflicted knife blow to him. He has also stated that other accused named in the FIR came to pacify the altercation. The Investigating Officer has also recorded the statement of many other independent witnesses and they have also stated only about the complicity of accused Rajesh Verma. They have also stated that the remaining accused were not involved in the assault, they were only pacifying the dispute. It is next contended that there are major contradictions and discrepancies in the statements of the complainant and injured regarding place of incident and the manner of the incident. During the course of investigating, it was also found that no offence of kidnapping has taken place and charge-sheet was submitted only against one accused Rajesh Verma for offence U/s 307, 323 & 504 IPC. It was a dispute during consumption of liquor between victim and Rajesh Verma. Learned counsel further contended that during trial before examination of complainant, the injured was examined as first witness. In his examination in chief, the witness has specifically assigned the role of causing injuries by knife to Rajesh Verma but he allegedly shown the presence of revisionist which is an improvement. He has stated that the revisionist caught his by waist during the quarrel. This statement is deviation from the statement recorded U/s 161 Cr.P.C. It is also stated that the injured was admitted in hospital on 16.09.2020 and was discharged on 18.09.2020 but the injured in his statement before the court has stated that he remained hospitalized for five days at Medical Collage, Gorakhpur and thereafter for 15 days in a private hospital, this fact is also against the record. The learned counsel further contended that the impugned order is against the weight of evidence available on record. The learned court below erred in law to consider the fact that the examination in chief of injured Shasher Ali as P.W.-1 recorded on 16.08.2022 and cross-examination on 22.06.2022 in which he specifically assigned the role of causing injury by the knife to Rajesh Verma. The learned trial court has also failed to consider that the name of the revisionist were exonerated by the Investigating Officer as per evidence collected by him during the course of investigation. The impugned order is manifestly illegal and without jurisdiction. The Investigating Officer has yet to be examined in the court below. In such circumstance the court below ought to have deferred the disposal of the application U/s 319 Cr.P.C. till the examination of Investigating Officer. The learned trial court has failed to consider the proposition of law laid down in the case of Hardeep Singh vs. State of Punjab and ors (2014) 3 SCC 92 as well as law laid down in the case of S. Mohammed Ispahani vs. Yogendra Chandak and ors (2017) 16 SCC and Brijendra Singh and ors vs. State of Rajasthan (2017) SCC 706. The court below has failed to exercise its jurisdiction diligently and has summoned the revisionist in a casual and cavalier manner, inasmuch as there is strong and cogent evidence against the revisionist which is a pre-condition for summoning a prospective applicant-revisionist. It is also contended that the complainant and witnesses of the FIR in their statements recorded U/s 161 Cr.P.C. and injured has not stated a whisper about the involvement of the revisionist. The learned trial court exceeded his jurisdiction U/s 319 Cr.P.C. Lastly, it is contended that power U/s 319 Cr.P.C. is discretionary and extraordinary power, it is to be exercised by the court sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the court below is of the opinion that some other person may also be guilty of committing that offence.Only where strong and cogent evidence occurs against such person from the evidence led before the court that such power should be exercised not in a casual and cavalier manner. On the aforesaid grounds, the learned counsel prayed to set aside the impugned order.
Learned AGA submitted that the revisionist is named in the FIR and there are specific allegations against him showing his complicity in the incident. The complainant and the injured have also stated about his participation in the incident in their statement recorded U/s 161 Cr.P.C. The injured Shamsher Ali alias Mehtab has been examined as P.W.-1 and in his statement before the trial court. he was again stated about the involvement of the revisionist accused. The learned trial court after considering the entire facts and evidence on record by a reasoned order has summoned him. So there is no illegality in the impugned summoning order.
The revisionist is named as an accused in the FIR. There are allegations that he with other named accused of FIR assaulted Shamsher Ali alias Mehtab the son of the complainant. It is further alleged that on exhortation of three accused named in the FIR co-accused Rajesh Verma inflicted knife blow to the son of the complainant. The complainant and the injured Shamsher Ali alias Mehtab both in their statement U/s 161 Cr.P.C. has corroborated the aforesaid allegations and has implicated the revisionist accused also. Shamsher Ali alias Mehtab has suffered injuries in the incident. He was also got hospitalized. During trial Shamsher Ali alias Mehtab has been examined as P.W.-1, in his deposition before the trial court, has again implicated, the revisionist with specific role and active participation in the incident. The Investigating Officer has exonerated the revisionist-accused on the basis of affidavits and statements of some witnesses in which they have alleged that the revisionist-accused was not present at the place of occurrence. Except the oral statement, no substantive evidence has been collected by the Investigating Officer regarding his presence elsewhere at the time of incident. It is settled law that the testimony of an injured witness has greater evidentiary value and it should not be discarded unless there are cogent reasons. So the material and evidence on the basis of which the Investigating Officer has exonerated the revisionist is very weak in nature. In comparison to it, the testimony of injured witness is of greater value and it cannot be discarded at this stage for the reason that during investigating some of the witnesses has deposed otherwise.
In Rajesh and ors vs.State of Haryana, (2019) 6 SCC 368 wherein informant named 10 persons for attempt to murder of his son and another with specific allegations against all the accused. The Investigating Officer submitted his report U/s 173 (2) Cr.P.C. against four accused only, no challan filed against six accused (appellants). The trial proceeded against four accused only. During trial, P.W.-1 (complainant) and P.W.-2 (injured witness) specifically stated about the overacts by the accused appellants and role played by them. An application for proceeding against them under section 319 Cr.P.C. was allowed by the trial court. The High Court dismissed the revision. The Apex Court held that, "the appellants herein are also named in the FIR, in the deposition before court, P.W. 1 & 2 have specifically stated against appellants and specific roles attributed to them, on the basis of the same, the persons against whom, no charge-sheet is filed can be summoned to face the trial, no error has been committed by the courts below to summon the appellants therein to face the trial in exercise of power U/s 319 Cr.P.C."
So applying the test laid down by the Apex Court on the present set of facts, it is clear that there is strong evidence than mere probability of the revisionist accused in the form of testimony of injured witness. In comparison to it, the evidence on the basis of which the Investigating Officer has exonerated the revisionist accused is of a very weak nature. There is sufficient and cogent evidence on record 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 un-rebutted would led to conviction and it pass the test as laid down by the Apex Court.
The learned trial court with a detailed and reasoned order has allowed the application. The learned trial court has narrated the entire facts, evidence and other material available on record and after analyzing it, has come to the finding that there is sufficient ground to summon the revisionist accused U/s 319 Cr.P.C. There is no illegality or infirmity in the impugned summoning order.
Accordingly the revision is hereby dismissed.
Order Date :- 24.2.2023 C. MANI