Madhya Pradesh High Court
Laxminarayan vs The State Of Madhya Pradesh on 6 March, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 6th OF MARCH, 2024
CRIMINAL REVISION NO. 2228 OF 2021
BETWEEN:-
LAXMINARAYAN, S/O. SHRI PUNNARAM, AGED
ABOUT 60 YEARS, R/O. VILLAGE KAITH KA PURA, P.S.
KAILARAS, DISTRICT MORENA (M.P.)
....APPLICANT
(BY SHRI ROHAN HARNE - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION KAILARAS,DISTRICT
MORENA, (M.P.)
2. GORELAL KUSHWAH, S/O. SHRI PANCHAM
SINGH KUSHWAH, R/O. VILLAGE GARMORA,
TAHSIL KAILARAS, DISTRICT MORENA (M.P.)
.....RESPONDENTS
(SHRI ALOK AGNIHOTRI - GOVERNMENT ADVOCATE FOR RESPONDENT
NO.1/STATE)
(SHRI RAKESH KUMAR SHARMA - ADVOCATE AND SHRI AMBUJ JAIN -
ADVOCATE FOR THE RESPONDENT NO.2)
&
CRIMINAL REVISION NO. 2150 OF 2021
BETWEEN:-
BEJNATH KUSHWAH, S/O. SHRI PUNNARAM
KUSHWAH, AGED ABOUT 55 YEARS, OCCUPATION
M.L.A., R/O. VILLAGE KAITH KA PURA, P.S.
KAILARAS, DISTRICT MORENA (M.P.)
2
....APPLICANT
(BY SHRI SHASHANK SHEKHAR - SENIOR ADVOCATE WITH SHRI
BHOOPESH TIWARI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
S.H.O. POLICE STATION KAILARAS, DISTRICT
MORENA, (M.P.)
2. GORELAL KUSHWAH, S/O. SHRI PANCHAM
SINGH KUSHWAH, AGED ABOUT 43 YEARS, R/O.
VILLAGE GARMORA, TAHSIL KAILARAS,
DISTRICT MORENA (M.P.)
.....RESPONDENTS
(SHRI ALOK AGNIHOTRI - GOVERNMENT ADVOCATE FOR RESPONDENT
NO.1/STATE)
(SHRI RAKESH KUMAR SHARMA - ADVOCATE AND SHRI AMBUJ JAIN -
ADVOCATE FOR THE RESPONDENT NO.2)
&
CRIMINAL REVISION NO. 2184 OF 2021
BETWEEN:-
1. SMT. TRIVENI KUSHWAH, W/O. SHRI LAKHAN
KUSHWAH, AGED ABOUT 42 YEARS, R/O.
VILLAGE KAITH KA PURA, P.S. KAILARAS,
DISTRICT MORENA (M.P.)
2. SMT. REEMA @ RENU KUSHWAH, W/O. SHRI
VEERU KUSHWAH, AGED ABOUT 20 YEARS,
R/O. KAITH KA PURA, P.S. KAILARAS,
DISTRICT MORENA (M.P.)
....APPLICANTS
(BY SHRI YASH SHARMA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION KAILARAS, DISTRICT
MORENA, (M.P.)
2. GORELAL KUSHWAH, S/O. SHRI PANCHAM
SINGH KUSHWAH, AGED ABOUT 44 YEARS, R/O.
3
VILLAGE GARMORA, TAHSIL KAILARAS,
DISTRICT MORENA (M.P.)
.....RESPONDENTS
(SHRI ALOK AGNIHOTRI - GOVERNMENT ADVOCATE FOR RESPONDENT
NO.1/STATE)
(SHRI RAKESH KUMAR SHARMA - ADVOCATE AND SHRI AMBUJ JAIN -
ADVOCATE FOR THE RESPONDENT NO.2)
&
CRIMINAL REVISION NO. 2340 OF 2021
BETWEEN:-
1. DARSHANLAL KUSHWAH, S/O. SHRI
PUNNARAM KUSHWAH, AGED ABOUT 55
YEARS, R/O. VILLAGE KAITH KA PURA, P.S.
KAILARAS, DISTRICT MORENA (M.P.)
2. LAKHAN KUSHWAH, S/O. SHRI PUNNARAM
KUSHWAH, AGED ABOUT 45 YEARS, R/O.
VILLAGE KAITH KA PURA, P.S. KAILARAS,
DISTRICT MORENA (M.P.)
3. BADAN SINGH KUSHWAH, S/O. SHRI KEDAR
SINGH KUSHWAH, AGED ABOUT 35 YEARS, R/O.
VILLAGE KAITH KA PURA, P.S. KAILARAS,
DISTRICT MORENA (M.P.)
....APPLICANTS
(BY SHRI YASH SHARMA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION KAILARAS, DISTRICT
MORENA, (M.P.)
2. GORELAL KUSHWAH, S/O. SHRI PANCHAM
SINGH KUSHWAH, AGED ABOUT 44 YEARS, R/O.
VILLAGE GARMORA, TAHSIL KAILARAS,
DISTRICT MORENA (M.P.)
.....RESPONDENTS
(SHRI ALOK AGNIHOTRI - GOVERNMENT ADVOCATE FOR RESPONDENT
NO.1/STATE)
(SHRI RAKESH KUMAR SHARMA - ADVOCATE AND SHRI AMBUJ JAIN -
ADVOCATE FOR THE RESPONDENT NO.2)
4
............................................................................................................................................
Reserved on : 15.02.2024
Pronounced on : 06.03.2024
............................................................................................................................................
These revisions having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
ORDER
Since all the revisions involve common question of facts and law, therefore, they have been heard analogously and decided by this common order. However, for the sake of convenience, facts of Cr.R. No.2228/2021 are being taken up.
2. The instant criminal revision has been filed by the applicant under Section 397 read with Section 401 of Cr.P.C. questioning the validity of order dated 31.08.2021 passed by First Additional Sessions Judge, Sabalgarh, District Morena in Sessions Trial No.83/2016 whereby the trial Court taking cognizance against the applicant and other accused on an application moved by the State under Section 319 of Cr.P.C. in Crime No.465/2015 registered at Police Station Kailaras, District Morena has directed that applicant and other accused persons should also be made accused in the alleged crime and they be also tried for the offence under Section 302/34.
3. The order dated 31.08.2021 passed by the trial Court is being challenged mainly on the ground that the trial Court has failed to appreciate that during the course of enquiry, there was nothing against the present applicant so as to make him an accused in the alleged crime. According to the applicant, none of the witnesses in their statement recorded by the police and not even in the FIR has stated anything against him showing his involvement in the alleged crime. Even in the 5 marg intimation which was given by daughter of the deceased, she has not shown involvement of the present applicant in the alleged crime but despite that, only on the basis of statement of Golu, the son of the deceased, aged about 8 years, which was recorded in the Court whereunder he has taken the name of present applicant first time showing his involvement in the crime, the trial Court allowing the application of 319 of Cr.P.C. has directed to implicate the applicant as an accused. According to the applicant, only on the basis of statement of Golu, the trial Court has exercised its discretion without considering the fact that Golu while developing the story has taken his name first time before the Court whereas in his earlier statement, he has not said anything against the present applicant and as such, under such circumstances, exercising discretion by the trial Court under Section 319 is improper. It is also alleged by the applicant that during trial, a private complaint was filed by Bharti, the daughter of the deceased before the JMFC, Sabalgarh, District Morena, against the present applicant and other co-accused persons and after appreciating the same, the Magistrate disbelieved the story and rejected the said complaint vide order dated 20.08.2016. Against the said order, criminal revision i.e. Cr.R. No. 147/2016 was also filed by daughter of the deceased which too got rejected by Second Additional Sessions Judge, Sabalgarh, District Morena vide order dated 07.12.2016.
4. Counsel for the applicant has submitted that the trial Court though has believed the statement of the witness Golu which was recorded during the course of enquiry but was not included in the charge-sheet and as such, statement recorded under Section 161 of Cr.P.C. is inadmissible in the eyes of law. According to counsel for the applicant, the trial Court issued arrest warrant against the present applicant which 6 is contrary to law. He has relied upon a judgment reported in case of 2008 Part I SCC (Cr.) 259 Indar Mohan Goswami and other Vs. State of Uttranchal and others. It is also stated by counsel for the applicant that the power under Section 319 has to be exercised sparingly and only in the cases where the circumstances of the case so warrant but in the present case, the trial Court has arbitrarily exercised the said discretion and, therefore, it is liable to be set aside. He has also placed reliance upon a decision reported in 2019 (12) SCC 644 (Labhuji Amratji Thakor and others Vs. State of Gujarat and another).
5. Opposing the submissions of learned counsel for the applicant in all possible manner, learned counsel for the respondents has submitted that the trial Court has rightly exercised the power under Section 319 of Cr.P.C. He has submitted that the police deliberately did not record the statement of witnesses in time and investigation of the case was also not up to the mark and as such, complaint was made to the police authorities in this regard. As per counsel for the respondents, the statement of Golu (PW-8) was very specific, naming the present applicant and other accused persons specifying their involvement in the alleged crime. He has further submitted that the trial Court has rightly considered the factual aspect of the case and there was no reason for the trial Court to disbelieve the statement of Golu (PW-8). The application filed by the sister of Golu (PW-8) though rejected by the trial Court but that rejection order has further been assailed before a higher forum. According to counsel for the respondents, the impugned order does not suffer from any perversity, illegality and as such, no interference is warranted. He has relied upon the judgements reported in AIR 2001 SC 282 (State of Rajasthan Vs. Hanuman), AIR 2011 SC 3147 (Gosu Jairami Reddy and another Vs. State of A.P.), AIR 2014 SC 1400 7 (Hardeep Singh Vs. State of Punjab and Others) and AIR 2016 SC 1615 (Hardei Vs. State of U.P.).
6. Considering the rival submissions of the counsel for the parties and perusal of record, it is clear that in the charge-sheet no role of present applicant has been assigned. As per the facts, a case under Section 302 of IPC got registered on a marg intimation given to the police on 10.12.2015 by Gorelal about the death of his sister namely Angoori. His niece namely Bharti informed him on phone that her father Hari Singh (husband of the deceased) has killed his wife/deceased and also called him to the village. Thereafter, the police while investigating the matter has recorded the statement of the witnesses and found that it was Hari Singh, who in a quarrel of husband and wife, not only physically assaulted her wife but pushed her in the well and as such, she died on account of injuries sustained over her head.
7. On perusal of charge-sheet, I find that in the statement of none of the witnesses, there is any material which indicates that present applicant was involved in the alleged crime and on the contrary, all the witnesses have stated that it was Hari Singh, husband of the deceased, who killed his wife. Golu, the son of deceased has also given his statement on 25.02.2016, but he has also not taken the name of any other person except Hari Singh. Even in the Court, none of the witnesses, except Golu (PW-8), in their statement has stated that it was the present applicant who along with Hari Singh had jointly assaulted the deceased and murdered her. The report was also made to the Station House Officer, Police Station Kailaras, in which it is stated that Hari Singh was in the habit of making allegations against his wife as he always doubted her character.
88. An application was moved under Section 193 of CrPC on behalf of Gorelal before the trial Court requesting therein to issue direction for enquiry as the accused Baijnath, Darshanlal, Laxminarayan, Lakhan, Punnaram, Badansingh, Triveni, and Renu, all of them have doubted upon the character of deceased and as such, with a common intention to kill her, at about 11:00 a.m. on 10.12.2015, they assaulted the deceased with lathi, farsa and kulhadi and after killing her, threw her body into the well. In the application, it was also mentioned that daughters of the deceased namely Bharti and Arti and her sons Kuldeep and Golu have tried to save the deceased but they failed. Bharti intimated her maternal uncle Gorelal over mobile and narrated the incident and requested him to come to the village. The accused persons after getting the body of deceased from well, tried to burn it, but they failed as the police came on the spot and took the body to the hospital where post-mortem was done and as such, report was made to the Police Station Kailaras. An application was also given to Collector Morena on 17.12.2015 requesting therein to arrest the real culprits which was forwarded to Superintendent of Police Morena but even after direction of the Collector, police did not register the FIR against the accused persons. An application was also submitted by the daugher of deceased to the Inspector General of Police, Bhopal on which, the Additional Superintendent of Police Morena conducted an enquiry wherein he recorded the statement of the daughters of the deceased namely, Bharti and Arti and sons namely Kuldeep and Golu. In the application filed under Section 193 of CrPC, it is also mentioned that Station House Officer intentionally has not taken note of the report of Superintendent of Police Morena, who after hiding the statements of the witnesses, submitted the charge-sheet only against Hari Singh. Although, the said 9 application got rejected by the trial Court vide order dated 19.07.2016 taking note of the fact that neither the report of Superintendent of Police nor the statement of witnesses recorded therein is made a part of the charge-sheet. Thereafter, statement of witnesses was filed along with the charge-sheet wherein they had stated only against Hari Singh, but not against any other person. The Court, thereafter rejected the application holding that the persons who are claimed to be narrated in the array of the accused cannot be made accused unless prima facie any material is produced against them in the charge-sheet. The Court has found that in the charge-sheet there was nothing against the persons against whom allegations have been made and they were requested to be included as accused.
9. The statement of Golu (PW-8) was also recorded in the Court who in his statement has narrated a story altogether different than that of his statement given under Section 161 of CrPC whereas the other witnesses recorded by the prosecution, did not allege anything against the present applicant or other persons except Hari Singh, but Golu has taken the name of present applicant saying that he also helped Hari Singh to kill his mother. The Court thereafter issued arrest warrant against the present applicant and allowed the application of 319 of CrPC. This Court has also perused the statement of the witnesses, especially the statement of Golu (PW-8) and Gorelal (PW-7). Gorelal who is the brother of the deceased also narrated a story different from the marg intimation given to the police after the incident. In the marg intimation it has been informed that the daughter of the deceased Bharti has informed Gorelal over the phone that her mother has been killed and requested him to come to the Village. Gorelal in his statement has also not taken the name of any other person except Hari Singh and also stated that it was Hari 10 Singh, who killed his sister, but in the statement made before the Court he has narrated a different story saying that Bharti called him and informed that his mother was killed by Hari Singh and his family members i.e. Baijnath, Darshanlal, Laxminarayan, Triveni, Lakhan, Badansingh and Renu and the same thing was also narrated by Golu before the Court. Although, in the statement of Golu, he has stated that police had recorded his statement on the next date of incident and has also admitted that after death of his mother, a panchayat was organized in the village. He has also admitted that after the death of his mother, he is residing with his maternal uncle Gorelal. However, in the statement, Gorelal has denied the fact that in the panchayat meeting organized after the death of deceased, he has demanded Rs.20 lacs from Hari Singh and his family members.
10. However, as per counsel for the applicant, when there was nothing in the charge-sheet and even the story of the incident was something else but only in the Court when statement got changed involving other family members of Hari Singh, then the same cannot be said to be a material evidence for including the name of present applicant by exercising power under Section 319 of CrPC.
11. According to this Court, the judgments cited by counsel for the respondents are on a different footing. Like in a case of Gosu Jairami Reddy (supra), the Supreme Court has considered the credibility of the eye witnesses and also the fact that every witness listed in the charge- sheet need not be examined and once deposition of eye witness examined during trial is accepted as trustworthy, then non-examination of all other witnesses would become inconsequential, but here in this case, there were other eye witnesses examined in the case and they have not supported the case of prosecution and only one eye witness namely 11 Golu (PW-8) has changed the statement and narrated a new story in the Court and the Court relying upon that new story, without taking into account the circumstances which otherwise indicate the reason for changing the statement, has passed the impugned order.
12. Likewise, in the case of Hardeep Singh (supra), the Supreme Court has observed that when a suspect is neither made an accused nor sent to face the trial, then the Court exercising the power provided under Section 319 of CrPC can make him an accused. But here in this case, the present applicant was not the suspect in the charge-sheet neither the prosecution has collected any material against him nor has anyone made him suspect whereas on the basis of statement of Golu, a completely new story was introduced in the trial and under such a situation, the Court has to consider the surrounding circumstances and should test the reliability of Golu (PW-8) and also his statement but that was not done by the Court.
13. In the case of Hanuman (supra), again the Supreme Court has considered the validity of statement of an eye witness and observed that if an eye witness has stated something, even then the case of prosecution cannot be doubted but here the present case is altogether different as the eye witnesses giving a new dimension to the case had narrated a different story which has not supported the case of prosecution.
14. Similarly, in the case of Hardei (supra), the Supreme Court has considered the power to add new accused under Section 319 of CrPC and also the material on the basis of which a new person can be added as an accused.
15. So far as the case of Labhuji Amratji Thakor (supra) on which learned counsel for the applicant has placed reliance is concerned, in the 12 said case an application under Section 319 of CrPC was moved by prosecution before the trial Court stating therein that in the statement of victim she has taken the name of the accused persons who had taken the victim to Morbi in the jeep and a prayer was made to proceed against those persons and initiate legal proceedings against them, but the trial Court rejected the application saying that it was mala fide intention of the victim and that rejection had travelled up to the Supreme Court wherein the Supreme Court has held that there was no evidence on record on the basis of which it can be prima facie found that the above persons had also committed the offence and further observed that the High Court does not take into account the judgment of Constitutional Bench of Supreme Court passed in the case of Hardeep Singh (supra) wherein the Supreme Court has observed as under:-
"7. The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under CrPC indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. The presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty.
8. Alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his burden upon an onus being cast upon him under the law to prove himself to be innocent. These competing theories have been kept in mind by the legislature. The entire effort, therefore, is not to allow the real perpetrator 13 of an offence to get away unpunished. This is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of Section 319 CrPC.
9. It is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the abovementioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is the subject-matter of trial.
10. In order to answer the aforesaid questions posed, it will be appropriate to refer to Section 351 of the Criminal Procedure Code, 1898 (hereinafter referred to as "the old Code"), where an analogous provision existed, empowering the court to summon any person other than the accused if he is found to be connected with the commission of the offence. However, when the new CrPC was being drafted, regard was had to the 41st Report of the Law Commission where in Paras 24.80 and 24.81 recommendations were made to make this provision more comprehensive. The said recommendations read:
"24.80.Section 351 limited to offenders in courts.--It happens sometimes, though not very often, that a Magistrate hearing a case against certain accused finds from the evidence that some person, other than the accused before him, is also concerned in that very offence or in a connected offence. It is only proper that the Magistrate should have the power to call and join him in the proceedings. Section 351 provides for such a situation, but only if that person happens to be attending the court. He can then be detained and proceeded against. There is no express provision in Section 351 for summoning such a person if he is not present in court. Such a provision would make Section 351 fairly comprehensive, and we think it proper to expressly provide for that situation.
24.81.How is cognizance taken?--Section 351 assumes that the Magistrate proceeding under it has the power of taking cognizance of the new case. It does not, however, say in what manner cognizance is taken by the Magistrate. The modes of taking cognizance are mentioned in Section 190, and are, apparently, exhaustive. The question is, whether against the newly added accused, cognizance will be supposed to have been taken on the Magistrate's own information under Section 190(1)(c), or only in the manner in which cognizance was first taken of the offence against the accused. ... The question is important, because the methods of inquiry and trial in the two cases differ. About the true position under the existing 14 law, there has been difference of opinion, and we think it should be made clear. It seems to us that the main purpose of this particular provision is, that the whole case against all known suspects should be proceeded with expeditiously, and convenience requires that cognizance against the newly added accused should be taken in the same manner against the other accused. We, therefore, propose to recast Section 351 making it comprehensive and providing that there will be no difference in the mode of taking cognizance if a new person is added as an accused during the proceedings. It is, of course, necessary (as is already provided) that in such a situation the evidence must he reheard in the presence of the newly added accused."
11. Section 319 CrPC as it exists today, is quoted hereunder:
"319.Power to proceed against other persons appearing to be guilty of offence.--
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the court, although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the court proceeds against any person under sub-section (1) then--
(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced."
(emphasis supplied)
12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.
15It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?
The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of CrPC and the judgments that have been relied on for the said purpose. The controversy centres around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised.
13. It would be necessary to put on record that the power conferred under Section 319 CrPC is only on the court.
This has to be understood in the context that Section 319 CrPC empowers only the court to proceed against such person. The word "court" in our hierarchy of criminal courts has been defined under Section 6 CrPC, which includes the Courts of Session, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Session is defined in Section 9 CrPC and the Courts of the Judicial Magistrates have been defined under Section 11 thereof. The Courts of the Metropolitan Magistrates have been defined under Section 16 CrPC. The courts which can try offences committed under the Penal Code, 1860 or any offence under any other law, have been specified under Section 26 CrPC read with the First Schedule. The Explanatory Note (2) under the heading of "Classification of offences" under the First Schedule specifies the expression "Magistrate of First Class" and "any Magistrate" to include Metropolitan Magistrates who are empowered to try the offences under the said Schedule but excludes Executive Magistrates.
(emphasis supplied)"
From the aforesaid view of the Supreme Court and observation made therein, it is clear that in the present case also the trial Court has not considered the fact that when investigation was being done, the prosecution case was altogether different and none of the witnesses had stated anything against the present applicant and for the first time, in the statement made before the Court, the name of the present applicant has been taken, does not mean that the Court can exercise power under Section 319 of CrPC without considering the surrounding circumstances. As has been observed by the Supreme Court, the power 16 of 319 of CrPC cannot be exercised mechanically to issue process against the applicant, who is to be added in the array of accused. The Court has to consider the substance of the evidence which has come before it. Even Gorelal had not intimated the police about the involvement of accused persons but has narrated a new story before the Court and refused the fact about the meeting of the panchayat whereas Golu (PW-8) in his statement has admitted about the meeting of panchayat and also informed the Court that his statement was recorded by the police on the next day. There is no doubt that the Court has power to add new person as accused whose name is not there in the FIR but it does not mean that any person can be added as an accused if any witness has taken his/her name in his statement. It was the duty of the trial Court to first consider as to what are the other surrounding circumstances compelling the Court to exercise the power provided under Section 319 of the CrPC against the accused. That apart, even the injuries over the body of the deceased do not corroborate with the weapon with which the present applicant was armed. There was no injury of Farsa and Kulhari whereas the injuries which have been found over the body of the deceased came from marpeet that took place between husband and wife and also due to throwing of the body into the well. It is also pertinent to mention here that even at the time of framing the charges no such objection was raised before the Court that there were other persons against whom even charge could be framed. To setup a new case completely contrary to the case of prosecution, there must be some material and statement of one witness is not enough to exercise power provided under Section 319 of CrPC. Thus, in my opinion, the trial Court has not properly exercised the power under Section 319 of CrPC, but acted mechanically in the matter and as such, the order passed by the 17 trial Court on 31.08.2021 allowing the application of 319 of CrPC relying upon the statement of Golu (PW-8) is neither proper nor sustainable in the eyes of law in light of the view expressed by the Supreme Court observing as to in what manner the said power can be exercised and, therefore, the impugned order dated 31.08.2021 is hereby set aside.
15. In view of the aforesaid discussion, these revisions are allowed.
(SANJAY DWIVEDI) JUDGE rao Digitally signed by SATYA SAI RAO Date: 2024.03.07 16:50:27 +05'30'