Allahabad High Court
Rajesh Gond vs State Of U.P. And Another on 27 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 89 Case :- CRIMINAL REVISION No. - 1856 of 2022 Revisionist :- Rajesh Gond Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Arvind Singh Sengar Counsel for Opposite Party :- G.A.,Ajeet Kumar Singh Hon'ble Syed Aftab Husain Rizvi,J.
Heard learned counsel for the revisionist learned AGA for the State and learned counsel for opposite party no.2.
This criminal revision has been filed against the order dated 23.12.2021 passed by Additional Sessions Judge Court no.3 Ballia in S.T. No.297 of 2017 (State vs. Gulab Gond) crime no.745 of 2017, U/s 307, 34 IPC, P.S. Ubhaon, District Ballia. By the impugned order, the learned court below on an application of prosecution in exercise of powers U/s 319 Cr.P.C. has summoned the revisionist accused to face trial.
With regard to incident dated 17.06.2017 at about 9:00 pm, an FIR was lodged by first informant Preetam on the same date at 20:30 O'clock alleging therein that the complainant is resident of village Jam Basnai P.S. Rasra, District Ballia. He had come at his nanihal village Babhnauli in connection with marriage of his maternal uncle Sunil to be held on 18.06.2017. Today on 17.06.2017 at about 9:00 pm, he with his maternal uncle Sonu alias Rohit was going on a motorcycle. When they reached near the Pt. Deen Dayal Upadhyaya Inter-college, and was talking with a vendor then a motorcycle on which three persons were riding came from the side of Shahpur Afgah road. Two persons came down from the motorcycle and reached near them, one of them asked his maternal uncle whether his name is Sonu, he replied that his name is Rohit, on this he said that he tease his sister and opened fire on him. The other person also opened fire on his maternal uncle and both of them riding the motorcycle ran away from the spot. The maternal uncle of the complainant fell down, due to darkness the complainant could not identify the assailants. The injured was taken to Sier Hospital from where he was referred to District Mau. It is further alleged that the complainant has dispute about the landed property with neighbour Gulab Gond and he suspect his hand in this incident. During investigation the names of Guddu Gond and Rajesh Gond came into light. After investigation, charge sheet was submitted against Gulab Gond and Guddu Gond. The revisionist Rajesh Gond was exonerated. The trial commenced before the sessions court and after examination of four prosecution witnesses, an application U/s 319 Cr.P.C. was moved to summon the revisionist Rajesh Gond for trial. The learned court below by the impugned order has allowed the application and summoned the revisionist accused for trial.
Learned counsel for the revisionist contended that the revisionist is not named in the FIR. The complainant in his statement has reiterated the version of the FIR and has not named the revisionist accused. He has also stated that due to darkness he could not identify the assailants. The name of the revisionist came at the first time in the statement of injured after 22 days of the incident and 15 days after discharge from the hospital. It is further contended that the complainant P.W.-1 in his statement has specifically stated that he identify the family members of Gulab Gond. It is further contended that there are major contradictions and discrepancies in the oral evidence produced before the trial court. Further the Investigating Officer during trial has collected the evidence about the fact that revisionist was not present at the place of occurrence. At the time of incident, he was at Bombay, the CCTV footage of the mall from where he was shopping was produced before the Investigating Officer, the photo of this CCTV footage was get identified by Investigating Officer from the injured and her mother and they have identified the revisionist accused in it. The CDR of the mobile of the revisionist also shows his presence at some other place and not at the place of occurrence at the time of incident. From the aforesaid evidence, the Investigating Officer has submitted final report against the revisionist but during trial on the basis of statement of injured Rohit Kumar alias Sonu, the learned trial court has passed the impugned summoning order, While his testimony is not worth reliable. The incident is of the night and it has come in the evidence that there was darkness at the time of incident due to which the complainant was not able to identify the assailants. The FIR was lodged only on the basis of suspicion. It is further contended that regarding motive of the incident there are different versions put by the prosecution. So the evidence produced by the prosecution is not cogent and sufficient. Lastly it is contended that the Apex Court in a catena of decisions has held that the power U/s 319 Cr.P.C. is an extra-ordinary power which should be exercised sparingly and not in a routine manner. There must be sufficient and cogent reasons. Learned counsel placed reliance on the case of Hardeep Singh Vs. State of Punjab AIR 2014 Supreme Court page 1400,Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC page 706 and Smt. Neelam Devi and two others vs. State of U.P. and another decided on 28.01.2023 by this Court.
Learned counsel appearing for opposite party no.2 contended that FIR has been lodged by Preetam, the maternal nephew of the injured. He is resident of another village so he could not identify the assailants by their names. But the injured in his statement U/s 161 Cr.P.C. has clearly stated about the complicity of the revisionist accused, he has also assigned the role of firing to the revisionist accused. In his statement before the trial court he has reiterated his statement recorded U/s 161 Cr.P.C. and stated about the active participation of the revisionist in the incident. It is further contended that CCTV footage and CDR does not contain the certificate required under section 65 of IT Act. It is a matter of trial, it cannot be appreciated at this stage. Sonu alias Rohit has suffered gun shot injuries in the incident, he was hospitalized, after discharge his statement was recorded by the Investigating Officer in which he has has clearly implicated the revisionist accused. So there is sufficient and cogent evidence on record on the basis of which the learned trial court has exercised his powers U/s 319 Cr.P.C. and has summoned the revisionist accused. There is no illegality in the impugned summoning order.
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."
The FIR of this case has been lodged against unknown persons U/s 307, 120B IPC. Gulab Gond is named in the FIR on the basis of suspicion with the allegations that he may be involved in the incident as there is enmity with him. The complainant Preetam in his statement U/s 161 Cr.P.C. has narrated the same facts as alleged in the FIR, he has not named the assailants who have opened fire. In the FIR no eye witness is named. The Investigation Officer has recorded the statement of injured Rohit, after 21 days of the incident and in this statement, the name of the assailants including revisionist has come into light. Regarding the alleged incident, the witness Mansha Ram Gupta in his statement U/s 161 Cr.P.C. has stated that at about 9:00 pm Rohit with Preetam came at his house and asked him to carry his thela but he refused and went inside of his house. Meanwhile he heard the sound of firing. When he came out, he saw the motorcycle lying on the spot. He could not identify anyone. Rohit alias Sonu has suffered gun shot injury and he was lying there. His brother Ashish Kumar on getting information came there and took him to the hospital. Ashish in his statement recorded U/s 161 Cr.P.C. claims himself to be an eye witness. During the trial, the complainant Preetam has reiterated the version as stated in his statement U/s 161 Cr.P.C. P.w. 2 Rohit alias Sonu the injured has implicated the revisionist Rajesh Gond and has stated that with intention to kill him, he opened fire. P.W.-3 Usha Devi is not an eye witness, she is mother of the injured. Ashish Kumar (P.W.-4) claims himself to be an eye witness and he has also implicated the revisionist. It also appears that during investigation the revisionist has moved an application to Superintendent of Police Ballia alleging therein that since last 10-15 years he is living at Bombay and engaged in construction work. He has come to know that in the investigation of this case, his name has also come in the light. While the real fact is that on 17.06.2017 the date of the incident, he was at Bombay and he was engaged in shopping at Korum Mall Metro Shoes, Thane. He has also used his credit card for shopping. He has collected the CCTV footage. He has also withdrawn the money from the ATM of SBI adjacent to Kesar Mill at Thane. The Investigating Officer may obtain the CCTV footage of ATM booth. His mobile bearing no.8652101111 and his location can be traced from this. The CCTV footage is attached with this application. The Investigating Officer made it part of the case diary. The CCTV footage was displayed on CD player of the laptop and Usha Devi the mother and Ashish the brother of injured- Rohit has identified Rajesh Kumar Gond in this CCTV footage. The Investigating Officer has mentioned these facts in the case diary. He has further mentioned that a letter was written to get the call details of mobile number of Rajesh Kumar Gond but the surveillance cell informed that as the incident is more two years old, it cannot be retrieved. Neither the CCTV footage of ATM Thane of SBI can be obtained. The Investigating Officer has also recorded the statement of some other witnesses and they have denied the presence of the revisionist at the place of occurrence at the time of incident.
The revisionist is neither named in the FIR nor the first informant who is also an eye witness has named anyone in his statement recorded U/s 161 Cr.P.C. It has also come in the evidence that at the time of incident it was darkness. The revisionist has been implicated by Rohit Kumar the injured in his statement recorded U/s 161 Cr.P.C., after 21 days of the incident. The revisionist has provided the evidence about the alibi to the Investigating Officer during the investigation in the form of CCTV footage of Korum Mall, Thane. The Investigating Officer has displayed this CCTV footage before the Usha Devi the mother and Ashish the brother of the injured Rohit and they have identified the revisionist Rajesh Kumar Gond in this CCTV footage.
The case of Brijendra Singh vs. State of Rajasthan (2017) 7 SCC 706 (Supra), the Apex Court while reiterating the principles laid down in Hardeep Singh case has made the following observations:
"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 chargesheet 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.
14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct.
15. This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."
The facts of the case in hand are almost identical to Brijendra Singh case (Supra). The CCTV footage of Koram Mall, Thane establishes the presence of the revisionist at a different place faraway from the place of occurrence at the relevant point of time. The two prosecution witnesses the mother and brother of injured have duly identified the revisionist in the CCTV footage. So this piece of evidence which is part of investigation fully contradict the testimony of the witnesses regarding complicity of the revisionist in the incident. The learned trial court has failed to appreciate the matters collected during the course of investigation regarding the presence of the accused at a place faraway from the place of occurrence. So the impugned order has been passed in a cavalier manner and it does not fulfill the test as laid down by the Apex Court. The learned trial court has relied on the statement of Usha Devi (P.W.-3) and Ashish Kumar (P.W.-4) while these witnesses have verified the identity of the revisionist accused in the CCTV footage of Korum Mall, Thane. For exercising the powers U/s 319 Cr.P.C. there must be strong and cogent evidence showing the complicity of the accused which is more than that of prima-facie case.
Considering the entire facts, evidence and material on record, it appears that there is no strong and cogent reasons to summon the revisionists-accused to face trial in exercise of powers U/s 319 Cr.P.C. While deciding the application U/s 319 Cr.P.C. the learned trial court has failed to appreciate the entire facts, evidence and other material available on record. The court below has also failed to record the degree of satisfaction which is required to summon an accused U/s 319 Cr.P.C. The degree of satisfaction is not one of prima-facie case. Consequently, trial court has failed to exercise its power in accordance with parameters laid down by the Apex court in a catena of decisions. The impugned order is not sustainable in the eye of law and is liable to be set aside.
In view of the above discussion, the impugned order suffers from material illegality and is not sustainable in the eye of law.
The revision is allowed and the impugned order dated 23.12.2021is hereby set aside.
Order Date :- 27.2.2023 C. MANI