Allahabad High Court
Ram Janam Yadav And 2 Others vs State Of U.P. And Anothers on 24 March, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 76 Case :- CRIMINAL REVISION No. - 782 of 2021 Revisionist :- Ram Janam Yadav And 2 Others Opposite Party :- State Of U.P. And Anothers Counsel for Revisionist :- Ajatshatru Pandey,Gopal Swarup Chaturvedi(Senior Adv.) Counsel for Opposite Party :- G.A.,P.K. Singh,Shyam Sunder Yadav Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Gopal Swaroop Chaturvedi, learned Senior Counsel assisted by Sri Ajatshatru Pandey, learned counsel for the revisionists, Sri Amrendra Nath Singh, learned Senior Counsel assisted by Sri P. K. Singh, learned counsel for the opposite party no. 2 and Sri G. P. Singh, learned A.G.A. for the State and perused the record.
The instant revision has been preferred against the order dated 08.03.2021 passed by Sessions Judge, Azamgarh in Session Trial No.226 of 2019 (State vs. Shaillendra and others) arising out of Case Crime No. 249 of 2018, under Sections 302 & 307 of IPC, Police Station Sidhari, District Azamgarh whereby court below has summoned the accused revisionists to face trial along with co-accused by allowing the application under section 319 Cr.P.C.
As per F.I.R., lodged by Devraj Yadav/opposite party no. 2, it has been stated that on 02.12.2018, there was a ceremony of house warming (grih pravesh) in the house of Ram Pyare in which his son Pravesh, his friend Dhanpal had also gone. Right then, some heated argument took place between Pravesh, Dhanpal on the one hand and Surendra Yadav and Shailedra Yadav on the other. From the side of Surendra and Shailendra, the village pradhan Gopal Yadav and his brother Ram Janam Yadav (revisionist No. 1), Mahendra (revisionist no. 2) and Shiv Janam Yadav (revisionist no. 3) also reached on the spot. In the mean time, pradhan Gopal Yadav (co-accused) started making firing by his licensed pistol by which his son received injuries in his finger of the left hand and Dhanpal received injuries in his head and chest. The occurrence took place at about 08:00PM, this occurrence was witnessed by Anil, Ashish and Rahul and Vipin, etc. After having given effect to this occurrence, the pradhan and other companions fled from the occurrence place. The injured were taken to the hospital on motor-cycles where in the district hospital Azamgarh, Dhanpal was declared dead. In the post mortem report, the deceased is found to have sustained as many as seven fire arm wounds which included four entry and three exit wounds.
Submission of the learned counsel for the revisionist is that after investigation the charge sheet was submitted by the investigating officer against the other accused named in the F.I.R. and not against the accused revisionists present before the Court. Because their involvement was not found in this occurrence. He has drawn attention towards the statement of informant recorded before the trial court in which he stated that on 02.12.2018 at about 08:30PM, house warming ceremony was going on in the house of one villager Ram Pyare and the same was to be followed by dinner in which his many close relatives and other ladies and gents were invited. From the family of this witness, he and his son Pravesh and Pravesh's friend Dhanpal were also present. In the said ceremony this witness was sitting there already. At that place co-accused Shailendra Yadav and Surendra Yadav were also present. Gopal Yadav (co-accused) of his village and his brother Ram Janam Yadav were also present. On something, heated argument took place between Pravesh and Dhanpal with Shailendra Yadav and Surendra Yadav and when the incident took serious turn, Ram Janam Yadav (revisionist no. 1) went home and returned with a licensed pistol of Gopal and he was being accompanied by Mahendra (revisoinist no. 2) and Shiv Janam Yadav (revisionist no. 3) right then, Ram Janam Yadav gave pistol to Gopal and said when this pistol would come in use, and that even after getting defeated in Pradhani Election these people were not behaving properly and became high handed and when Ram Janam said these words, Shiv Janam Yadav (revisionist no. 3) and Mahendra (revisionist no. 2) had surrounded Dhanpal and Pravesh and Gopal (co-accused) made fire, with an intention to kill, upon Dhanpal and Pravesh by his licenced gun and the bullet hit Dhanpal's chest and head while the informant's son received injury in the finger of his left hand. After having drawn attention to this evidence, it is argued by the learned counsel for the revisionists that there is modification made in the statement given by PW1 from the version given in the F.I.R. because there was no such mention made in the F.I.R. that when dispute took serious turn Ram Janam went home and brought pistol from there, therefore, the said statement should not be taken to be correct because these three accused- revisionists were not present at the place of occurrence and they were not found to be there at the date and time of the occurrence by the police as well and accordingly they have been exonerated.
It is further argued that the revisionist no. 1 is posted as Child Development Project Officer in Allahabad and at the time of alleged occurrence he was posted in Jaunpur and on 17.12.2018, an application was moved by Indrajeet Yadav, (father of the revisionists) regarding alibi of the revisionist no. 1 with all the documents. On the date of occurrence he was present in Jaunpur and after departmental meeting, he had taken Roadways Bus Ticket at 08:03 PM from Jaunpur Roadways Bus Stand to Azamgarh which is evident from the C.C.T.V. footage of the Jaunpur Roadways Bus Stand Crossing and CDR of mobile of revisionist no. 1 being No. 7897114522 also indicates that he was in Jaunpur at 08:30 hours on 02.12.2018. The distance between Jaunpur Bus Stand to Azamgarh Bus Stand is 65 Kms., so the bus reached at Azamgarh Bus Stand at 10:40 PM on 02.12.2018 in which the revisionist no. 1 was travelling and from Azamgarh Bus Stand, the distance of the village of the revisionist no. 1 is about 7 Kms., and the alleged occurrence is said to have taken place on 02.12.2018, at about 08:30 PM and at that time the revisionist no. 1 was present at Jaunpur Bus Stand which is evident from the bus ticket issued by conductor. Further it is argued that on 02.12.2018, a departmental meeting of Integrated Child Development Service (ICDS) was held in District Office, Jaunpur which was started at 11:00 AM and finished at 07:00 PM. As per the mobile number of revisionist no. 1, it is evident from CDR that location of the said mobile was found on 02.12.2018 from 15:30 hours to 21:01:27 hours at Chhangan Lal Shankar, village & Post Gaurabadshahpur, Jaunpur and from this location, the distance of the Roadway Bus Stand, Azamgarh is about 50 Kms, so it was very much clear that at the time of alleged occurrence i.e. at 08:30 hours on 02.12.2018, the revisionist no. 1 was travelling in a Roadways Bus and was not present at the scene of occurrence. It is next argued by him that earlier when opposite party no. 2 had moved an application for further investigation, he had mentioned therein that Roadways Ticket given by the revisionist no. 1 to the investigating officer was a forged ticket, the said application is part of the case diary. Thereafter, an application was moved by the second investigating officer before Assistant Regional Manager, U.P.S.R.T.C., Azamgarh Depot on 04.05.2019 with a prayer to confirm whether the ticket given to the revisionist no. 1 by the bus conductor was genuine or not. In fact, the number of Roadways Bus on the Ticket issued to the revisionist no. 1 was wrongly printed as UP50T-8769 in place of Bus No. UP35T-8769, which was mentioned due to some error in ETM machine. It is further argued that revisionist no. 2 (Mahendra Yadav), whose mobile number is 9999311327, location of the said mobile number was found in Delhi as per CDR, on 02.12.2018 at 22:28 hours. He was present in the house of Sukhpal Singh Yadav on 02.12.2018 at 10:11:56 hours, therefore, the investigating officer moved an application for details of C.C.T.V. footage of house of Sukhpal Singh Yadav and the said C.C.T.V. footage was perused by the investigating officer and it was found that the revisionist no. 2 was present in front of the house of Sukhpal Singh Yadav on 02.12.2018, at 22:18:59 hours. Next it is argued that mobile number of the revisionist no. 3 is 9350111493 and as per CDR , the location of the said mobile number was found in Delhi on 02.12.2018 at 20:30:18 hours. Revisionist no. 3 was in Ghaziabad at 05:56 PM on 02.12.2018 as per C.C.T.V. footage of Rupali Petrol Pump Industrial Area, Ghaziabad where he was taking fuel in his bike. After perusal of the entire evidence there is not an iota of evidence against the revisionists to connect them with the present crime and accordingly, the police had exonerated them. These facts have not been taken into consideration by the court below and the revisionists have been summoned on an application moved under Section 319 Cr.P.C.
From the side of opposite party no. 2, it is vehemently argued that there is no infirmity in the impugned order because there was injured eye witness Pravesh whose statement has been read out by him and who has stated that on 02.12.2018 at 08:30PM, this occurrence took place in the house of Ram Pyare Yadav as house warming ceremony was going on in his house, in which he (Pravesh), his friend Dhanpal had participated. The father of the this witness i.e. informant Dev Raj Yadav was already present there. In this ceremony, the deceased Dhanpal, Dhanpal's Bhabhi Kamla Devi, Ashish, Anil, Rahul and Vipin and many other persons were present. Right there, co-accused Shailendra Yadav, co-accused Surendra Yadav, co-accused Gopal Yadav and his brother Ram Janam Yadav (revisionist no. 1) were also present. In this occurrence, Gopal Yadav, Ram Janam Yadav, Shiv Janam Yadav, Mahendra Yadav, Shailendra Yadav and Surendrea Yadav were involved. He has seen the said occurrence with his own eyes. The accused persons namely Gopal, Ram Janam Yadav, Shailendra and Surendra were already present in the said function and they had already conspired to pick up a raw and to kill the deceased. During the function Surendra Yadav and Shailendra Yadav had given a push to deceased Dhanpal which led to heated argument between Dhanpal and Pravesh on the one hand and Shailendra Yadav and Surendra Yadav on the other hand. In the meantime, Ram Janam Yadav went to his house and returned with licensed gun andMahendra and Shiv Jaman Yadav had also accompanied him. The said heated argument intensified and they all reached near a Chauraha and thereafter Shiv Janam Yadav (revisionist no. 3) and Mahendra (revisionist no. 2) had surrounded this witness and the deceased Dhanpal. Thereafter, Ram Janam Yadav gave pistol to Gopal (co-accused) and told him that "?? ??? ??? ??? ?????, ?? ???? ?? ????? ???? ?? ??? ?? ??? ?? ?? ???? ??? ?????" on this, co-accused Gopal opened fire upon Dhanpal and this witness (Pravesh) due to which he had received injury in his left hand's finger and Dhanpal received injury on his head, chest and abdomen and thereafter he fell down on the ground. It is further argued that there is eye witness account which cannot be discarded lightly, his presence is taken to be true and if he says that the accused revisionist were involved in the aforesaid crime, there is no reason why their names should have been exonerated by the investigating officer. Further it is argued that against the investigating officer also, an application was moved for further investigation, therefore, whatever evidence has been gathered in that regard by the investigating officer, needs to be discarded.
After having heard, this Court is of the view that accused revisionists' are named in the F.I.R. and the main thrust of the argument of the learned counsel for the revisionists is that the revisionists were not present at the scene of occurrence because plea of alibi has been taken for each of them that they were not present on the basis of evidence, which have been mentioned above appears to be a wrong argument. As regards, CDR details, of presence of phone would not be conclusive proof that the person whom the said phone belonged would also be present on the location of the phone, therefore, plea of alibi is considered to be a very weak plea. As against the statement of eye witness, the plea of alibi should be ignored and it appears that the trial court has rightly summoned the accused revisionists in view of the law laid down the Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 in paragraph nos. 105 and 106 has held as under:
"105. 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."
"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."
In view of the above law, it is apparent that for invoking provisions of section 319 Cr.P.C. there must be evidence much stronger than the evidence of prima-facie nature. The evidence should be so strong on record that if the same is left unrebutted, it would result in conviction of the accused. The evidence should not be merely of the kind which raises doubt prima-facie only that there could be involvement of the accused because that kind of evidence would be sufficient only to frame charge. The evidence which has come in the present case if tested on the touchstone of above position of law, I find that in the present case, there is sufficient evidence on record against the accused-applicant on the basis of which, the applicant has been summoned to face trial rightly and this Court does not find any justifiable ground to interfere with the said order of the court below and the same is upheld.
The revision deserves to be dismissed and is accordingly dismissed.
Order Date :- 24.3.2021 VPS