Allahabad High Court
Bhoori Singh @ Mahavir And Another vs State Of U.P. And Another on 1 August, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:129183 Reserved On : 28.07.2025 Delivered On : 01.08.2025 Court No. - 80 Case :- APPLICATION U/S 482 No. - 32819 of 2024 Applicant :- Bhoori Singh @ Mahavir And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Daga,Vipul Kumar Singh Counsel for Opposite Party :- Rajrshi Gupta, Rizwan Ahamad,G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Amit Daga, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and Mr. Dilip Kumar, the learned Senior counsel assisted by Mr. Rizwan Ahamad, the learned counsel representing first informant-opposite party-2.
2. Perused the record.
3. Applicants-Bhoori Singh @ Mahavir and Ratan Singh, who were initially prospective accused (i.e. named in the F.I.R. but exculpated) have now been summoned by Court below in exercise of jurisdiction under Section 319 Cr.P.C. to stand their trial before Court below, have approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:-
"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to allow instant application by quashing the order dated 04.09.2024, passed by learned Additional Sessions Judge, Court No. 01, Mathura in Session Trial No. 31 of 2024, 'State of U.P. Vs. Ramveer', under Sections 302 & 328 I.P.C., Police Station-Baldeo, District-Mathura (arising out of Case Crime No. 103 of 2021, registered at Police Station-Baldeo, District-Mathura), whereby Learned Trial Court allowed informant's application being Paper No. 15-Ka, moved under Section 319 Cr. P.C. and summoned the accused applicants for the offence punishable under Sections 302 & 328 I.P.C. to face the proceedings of aforesaid trial exercising powers under Section 319 Cr. P.C. as well as the entire proceedings of the aforesaid session trial going on against applicants, in furtherance of aforesaid order dated 04.09.2024, presently pending before the Court of learned Additional Sessions Judge, Court No. 01, Mathura, so that justice be done, otherwise the accused applicants will suffer irreparable loss and hard injury, which cannot be compensated in any terms.
May further be pleased to stay the effect and operation of the order dated 04.09.2024, passed by learned Additional Sessions Judge, Court No. 01, Mathura in Session Trial No. 31 of 2024, 'State of U.P. Vs. Ramveer', under Sections 302 & 328 I.P.C., Police Station-Baldeo, District-Mathura (arising out of Case Crime No. 103 of 2021, registered at Police Station-Baldeo, District-Mathura), during the pendency of instant application (under Section 482 Cr.P.C.) before this Hon'ble Court.
And/or pass such other and further order as this Hon'ble Court may deem fit and proper in the present circumstances of the case, otherwise the accused applicants will suffer irreparable loss and hard injury, which cannot be compensated in any terms."
4. Record shows that in respect of an incident, which is alleged to have occurred on 20.04.2021, a delayed FIR dated 21.04.2021 was lodged by first informant-opposite party-2 Bheem Singh and was registered as Case Crime No. 0103 of 2021, under Sections 328, 302 IPC, Police Station-Baldeo, District-Mathura. In the aforesaid FIR, four persons namely (1) Pappu, (2) Bhoori Singh @ Mahavir, (3) Ratan Singh and (4) Ramveer were nominated as named accused.
5. The prosecution story as unfolded in the FIR is to the effect that on 20.04.2021 at around 11:00 p.m., Ravindra Singh (brother of first informant-opposite party-2 Bheem Singh) had gone out for canvassing. Pappu son of Nanda Singh, Bhoori Singh @ Mahavir and Ratan Singh Sons of Maharaj Singh and Ramveer Singh Son of Mahesh Chandra came to the brother of first informant and requested him to accompany them for canvassing. Ravindra Singh is alleged to have accompanied aforesaid persons. In conspiracy, aforementioned persons offered liquor forcibly to Ravindra Singh (brother of first informant-opposite party-2) and that the liquor was containing some stupefying/poisonous substance. The brother of first informant-opposite party-2 requested aforesaid persons to allow him to go home but they forcibly detained him. In the morning, first informant is alleged to have received information regarding the death of his brother Ravindra Singh and when he went to the hut of Pappu, he saw that aforementioned persons were attempting to hide the dead body of Ravindra Singh (deceased/brother of first informant).
6. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. He first reached the place of occurrence and thereafter, recovered the dead body of deceased. Accordingly, a recovery memo dated 21.04.2021 in respect of same, was prepared.
7. Subsequent to above, steps were undertaken by the Investigating Officer for getting the inquest (Panchnama) of the body of deceased conducted, which was conducted on the same day i.e. 21.04.2021. In the opinion of witness of inquest (Panch witnesses) the nature of death of deceased could not be categorized i.e. whether it is homicidal or suicidal. They, however, concurred in their opinion that the death of deceased has occurred in suspicious circumstances and therefore, in order to ascertain the exact cause of death of deceased, post mortem of the body of deceased be got done.
8. Thereafter on the same day i.e. 21.04.2021, post-mortem of the body of deceased was conducted. The Autopsy Surgeon, who conducted autopsy on the body of deceased, did not find any external ante-mortem injury on the body of deceased. As such, the cause of death of deceased could not be ascertained. Accordingly, the viscera was preserved.
9. It appears that thereafter, the viscera of deceased was dispatched for chemical examination to the scientific laboratory. The Deputy Director FSL Laboratory, Agra prepared the viscera report dated 07.05.2021 of the deceased. As per the said report, Ethyl Alcohol and a foreign chemical compound Aluminum Phosphate were found in the body parts of deceased, sent for chemical-examination.
10. During course of investigation, Investigating Officer examined the first informant and other witnesses under Section 161 Cr.P.C. The statement of the first informant/opposite party-2, Bheem Singh was also recorded under Section 164 Cr.P.C. Apart from above, the second statement (Bayan-Majid) of some of the witnesses were recorded under Section 161 Cr.P.C.
11 On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that complicity of only one of the named accused i.e. Ramveer is established in the crime in question. He, accordingly, submitted the charge sheet/police report dated 05.12.2023 in terms of Section 173 (2) Cr.P.C., whereby aforementioned named accused Ramveer was charge-sheeted under Sections 328, 302 IPC, whereas the other three named accused i.e. (1) Pappu, (2) Bhoori Singh @ Mahavir and (3) Ratain Singh were exculpated.
12. Subsequently, Investigating Officer submitted the final report/police report dtged 20.11.2023 also in terms of Section 173 (2) Cr.P.C. in favour of applicants Bhoori Singh @ Mahavir Singh and Ratan Singh. As such, the applicants stood exculpated in the crime in question.
13. Perusal of the aforementioned final report/police report, copy of which is on record at page 334 of the paper book, will go to show that applicants were exculpated by the Investigating Officer on the grounds that C.D.R. and location of Mobile Phones of deceased and applicants were obtained, in the enquiry it was revealed that three Mobile Towers of different Companies are situate in the vicinity, except for above, there is no Mobile Tower of any Company within a radius of 7-8 K.M., it is thus evident that the deceased and applicants were within the range of one tower, however, merely on the basis of above, it cannot be inferred that the deceased and applicants were together in the same village/place of occurrence, as per the C.D.R. report, no communication was found to have taken place between the deceased and the accused, as such it is not apparent that the deceased was called by accused, as per the evidence collected upto this stage it is not established that the deceased and accused were together and they consumed liquor nor there is any evidence to show that the deceased was put to death after he was made to drink liquor, as per the statements of witnesses the accused were in the Company of witnesses for canvassing.
14. After submission of charge sheet/police report dated 05.12.2023, cognizance was taken upon same by the Jurisdictional Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. Accordingly, concerned Magistrate summoned the charge sheeted accused, Ramveer. He, thereafter complied with the procedure contemplated under Section 207 Cr.P.C. (i.e. supply of documents to accused) However, as offence complained of is triable exclusively by the Court of Sessions, therefore, concerned Sessions Judge in line with Section 209 Cr.P.C., committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 31 of 2024 (State of U.P. Vs. Ramveer), under Sections 302, 328 I.P.C., Police Station-Baldeo, District-Mathura came to be registered. On date, the aforesaid Sessions Trial is said to be pending in the Court of Additional Sessions Judge, Court No.-1, Mathura.
15. Concerned Sessions Judge proceeded with the trial. He, therefore, in compliance of Section 228 Cr.P.C., framed charges against charge sheeted accused Ramveer, who denied the same, pleaded innocence and demanded trial. Resultantly, the trial procedure commenced.
16. Prosecution in discharge of it's burden to bring home the charges so framed against charge-sheeted accused, adduced first informant-opposite party-2 Bheem Singh as PW-1 and an independent witness Netrapal as PW-2.
17. It is apposite to mention here that one of the named accused Arjun @ Pappu died during the pendency of trial.
18. After the statement-in-chief and examination-in-chief of aforementioned witnesses was recorded before Court below, prosecution/first informant/opposite party-2 Bheem Singh filed an application dated 15.07.2024 under Section 319 Cr.P.C. with the prayer that since complicity of named accused Bhoori Singh @ Mahavir and Ratan Singh i.e. applicants hereinhas also emerged in the crime in question as per the depositions of PW-1 and PW-2, therefore, they be also summoned to stand their trial in aforementioned Sessions Trial. This application came to be registered as (Paper No. 15-Ka).
19. Court below examined the aforementioned application (Paper No. 15-Ka) filed by first informant-opposite party-2 under Section 319 Cr.P.C. It, accordingly, evaluated and examined the prayer made in aforementioned application in the light of material on record. Having undertaken the aforesaid exercise, Court below came to the conclusion that prima-faice, the complicity of prospective accused stands emerged in the crime in question as per the evidence on record. Accordingly, Court below, vide order dated 04.09.2024, allowed the aforesaid application. Resultatnly, applicants have now been summoned by Court below to face trial in aforementioned Sessions Trial.
20. Perusal of order dated 04.09.2024 passed by Court below will go to show that Court below has allowed the aforementioned application under Section 319 Cr.P.C. (Paper No. 15-Ka) filed by the first informant on the following findings:-
(i). Bheem Singh is the first informant. This witness in his statement under Section 161 Cr.P.C. has fully supported the prosecution story as unfolded in the FIR.
(ii). As per CD Parcha No. 17, Netrapal Singh, an independent witness, in his statement under Section 161 Cr.P.C. has also supported the prosecution story.
(iii). Apart from above, the following independent witnesses i.e. (1) Sanjay Singh Son of Bachchu Singh, (2) Manvendra Singh Son of Nem Singh, (3) Shashipal Son of Dwarika Prasad, (4) Amar Singh Son of Dhooriya, (5) Languriya Son of Hubbalal, (6) Dalveer Son of Jagan Singh, (7) Ishwarchandra Son of Sovaran Singh, (8) Smt. Pista Devi Wife of Ravindra Singh, (9) Jitendra Pal Son of Lal Singh, (1) Rajkumar Son of Bachchu Singh, (11) Vikram Singh Son of Mathura Prasad, (12) Panna Lal Son of Durg Singh, (13) Dwarika Prasad Son of Durg Singh, (14) Badam Singh Son of Uttar Singh and (15) Rajveer Son of Chob Singh examined under Section 161 Cr.P.C. by the Investigating Officer have also supported the prosecution story.
(iv). PW-1 Bhim Singh in his deposition before Court below has narrated the events occurring prior to his going to the place where the dead body of deceased was seen by him i.e. the hut of Pappu and subsequent thereto, all the accused persons i.e. Bhoori Singh, Ratain Singh, Ramveer and Pappu were seen by first informant, who were attempting to take away the dead body of Ravindra Singh (deceased) for hiding it.
(v). PW-2 Netrapal Singh in his statement under Section 161 Cr.P.C. has also supported the prosecution story. According to this witness, on 20.04.2021, he was returning from his field at Gadhi Asha. As he along with his father Dwarika Prasad and Vikram reached near the hut of Pappu, they saw Bhoori Singh and Ratan Singh sons of Maharaj Singh, Ramveer Singh and Ravindra Singh sons of Mahesh, in the light of electric bulb fixed on the wooden pole. The accused persons were requesting Ravindra to take liquor, which was being refused by Ravindra Singh. At this juncture, they exchanged 'Hello' (Ram-Ram) to each other. This witnesses has further stated that he requested Ravindra Singh to go to the village, on which, Ratan Singh replied that he shall drop Ravindra Singh and they were requested to leave. Ravindra Singh is said to have stated that it is now late in the night and therefore, I am leaving. However, the accused persons stated that something more is to be talked about elections. Ravindra is said to have uttered that after taking the liquor offered by them, he is feeling giddy.
(vi). On the basis of depositions of PW-1 and PW-2, Court below concluded that the allegations made in the FIR that accused persons namely Mahavir, Ratan Singh, Ramvir and Pappu in conspiracy have caused the death of Ravindra Singh by administering him liquor, which was mixed with poisonous substance stand substantiated in the depositions of aforementioned witnesses, who had stated the same story in their previous statements recorded under Section 161 Cr.P.C.
(vii). As per the post mortem report and the viscera report of deceased, it is apparent that the cause of death of deceased is Ethyl Alcohol and Aluminium Phosphide.
(viii). Court below then referred to the Five Judges Bench judgment of Supreme Court in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92, wherein the Apex Court has observed that the evidence required for summoning an accused should be greater then what is required at the time of taking cognizance and further the said evidence may prima-facie lead to the conviction of a prospective accused.
(ix). Court below further referred to the judgment of Supreme Court in Labhuji Amritji Thakur Vs. State of Gujarat, (2019) 12SCC 664 wherein the Court has reiterated the earlier Five Judges Bench judgment in Hardeep Singh (Supra).
(x). Reference was then made to the judgment of Supreme Court in Sartaj Singh Vs. State of Haryana (2021) 5SCC 337, wherein the Court observed that power under Section 319 Cr.P.C. is a discretionary power. Secondly, such power should be exercised only when strong and cogent evidence has emerged against prospective accused. Since power under Section 319 Cr.P.C. is an extraordinary discretionary power, as such, the same should be exercised with caution and only where the circumstances of a case warrant exercise of discretion in the light of above and something more than a prima-facie case is made out, and the degree of satisfaction for above should be one, which is more than that is required at the time of taking cognizance but short of the fact that if the said evidence remains unrebutted, it may lead to the conviction of an accused.
(xi). Court below then referred to the judgment of Supreme Court in Mohd. Shafi Vs. Mohammad Rafique and others, (2007) 14 SCC 544, wherein it has been held that a prospective accused should be summoned only when, there is such evidence on record, which may lead to the conviction of an accused.
21. Thus, feeling aggrieved by the above order dated 04.09.2024 passed by the First Additional Sessions Judge, Mathura, applicants have now approached this Court by means of present application under Section 482 Cr.P.C.
22. Mr. Amit Daga, the learned counsel for applicants contends that the order impugned in present application is manifestly illegal and in excess of jurisdiction. Consequently, the same is liable to be quashed by this Court.
23. Elaborating his aforesaid submission, the learned counsel for applicants referred to the deposition of PW-1, Bheem Singh. With reference to the4 same, he submitted that his deposition comprises of two parts. The first part relates to the incident, which has taken place prior to the death of deceased and the second part is when this witness reached the place, where the dead body of deceased was lying. In respect of the statement of this witness relating to the first part of the incident, the learned counsel for applicants would submit that since PW-1 is not an eye witness of the circumstance preceding the death of deceased, therefore, his deposition before Court below to that extent is unworthy of reliance as it is based upon here-say evidence. Since first informant-opposite party-2 i.e. PW-1 Bheem Singh is not an eye witness of the first part of occurrence, therefore, his statement is unworthy of credit and trustworthiness to that extent.
24. So far as the second part of the occurrence is concerned i.e. when the first informant-opposite party-2 upon information reached the hut of Pappu and saw the accused persons along with the dead body of deceased, who were attempting to take away the same and hiding, the same is sought to be castigated on the ground that the person, who gave the information as well as the time at which, aforesaid information was given in the deposition of PW-1 is conspicuous by it's absence to first informant. Therefore, on the basis of such deposition of PW-1, no criminality can be inferred against present applicants, who are prospective accused i.e. named in the FIR but not charge sheeted. According to the learned counsel for applicants, the link in the chain of circumstance is absent. In short, the submission is that there is no link evidence. In view of above, the deposition of this witness is unworthy of acceptance so far as the second part of the incident is concerned.
25. In challenge to the order impugned, Mr. Amit Daga, the learned counsel for applicants would next submit that as per the deposition of PW-2 the only evidence that has come against prospective accused/applicants in the deposition of aforesaid witness is that of last seen. Referring to the judgment of Supreme Court in Jaswant Gir Vs. State of Punjab, (2005) 12SCC 438 and Jabir Vs. State of Uttrakhand, (2023) SCC OnLine 32, the learned counsel for applicants would contends that there can be no conviction on the basis of last seen. As such, the deposition of PW-2 is wholly irrelevant to infer the complicity of the applicants in the crime in question.
26. It was also contended by the learned counsel for applicants that as per the statement of aforesaid witness P.W.-2 has not witnessed the occurrence relating to the mixing of any stupefying or poisonous substance in the liquor consumed by deceased. As such, there is no evidence with regard to administering of Aluminium Phosphide to the deceased by the accused persons.
27. According to the learned counsel for applicants, apart from above, no strong motive to cause the death of deceased has emerged against applicants as per the depositions of PW-1 and PW-2 so as to infer something more than mere complicity of applicants in the crime in question, who are prospective accused i.e. named in the FIR but exculpated.
28. Learned counsel for applicants with reference to the record vehemently urged that since the statements of the witnesses examined under Section 161 Cr.P.C. was recorded belatedly, therefore, no credence can be attached to the same. To buttress his submission, he relied upon the following judgements of Supreme Court:
i. Ganesh Bhavan Patel Vs. State of Maharashtra, (1978) 4 SCC 371.
ii. Shahid Khan Vs. State of Rajasthan, (2016) 4 SCC 96 iii. Goutam Joardar Vs. State of West Bengal, (2022) 17 SCC 549
29. It was lastly contended by the learned counsel for applicants that present case is a case of false and malicious prosecution. It has come in evidence that there is enmity and rivalry between the applicants and the first informant. It is on account of above that applicants have been flasely implicated. There is no such evidence on record on the basis of which the complicity of applicants can be said to be apparent. No motive to commit the crime has emerged either. The same gain importance in the light of the fact that death of deceased occurred on account of consuming Aluminium Phosphate. Since the said chemical compound has a very pungent smell, therefore, the same could not have been administered by mixing it with liquor. In such circumstance, the very prosecution story is unworthy of acceptance. As such, the impugned order is liable to be quashed by this Court. In support of above, he has relied upon the judgement of Supreme Court in Jaipal Vs. State of Haryana, (2013) 1 SCC 169.
30. On the edifice of aforesaid submissions, it was thus urged by the learned counsel for applicants that the order impugned is liable to be set aside and the application be allowed.
31. Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed the present application. He submits that order impugned in present application is perfectly just and legal. Court below has rightly summoned the applicants to stand their trial in above-mentioned Sessions Trial.
32. According to the learned A.G.A., PW-1 Bhoori Singh, opposite party-2 is the first informant as he had lodged the FIR giving rise to present criminal proceedings. It has been categorically averred in the FIR that upon receipt of information regarding whereabouts of his brother Ravindra Singh (deceased), he went to the place of occurrence i.e. the hut of Pappu, where he saw that the accused persons i.e. Pappu, Bhoori Singh, Ratan Singh and Ramvir were attempting to take away the dead body of deceased for hiding the same but seeing the first informant, they ran away.
33. Aforesaid recital occurring in FIR was duly supported by the first informant Bhoori Singh, firstly in his statement under Section 161 Cr.P.C. and thereafter in his deposition before Court below as PW-1. He has fully supported the prosecution story as unfolded in the FIR. In fact, this witness in his deposition before Court below has further detailed that when he was 20 meters away from the hut of Pappu, he saw that accused persons were attempting to take away the dead body of deceased for hiding it. This statement has further been explained by the witness as there is a clear recital in his deposition that while Bhoori Singh and Ratan Singh were holding the hands of deceased, Ramvir and Pappu had caught hold of the legs of deceased.
34. It was thus urged by the learned A.G.A. that all the 4 accused persons mentioned in the FIR were seen with the body of deceased. He, therefore, submits that the death of deceased was in the special knowledge of all the accused. By reason of above and the provisions existing in Section 106 of the Indian Evidence Act, the burden will shift upon the accused persons to explain as to how the death of deceased occurred. As such, something more than mere complicity of accused has emerged in the crime in question. In view of above, no illegality or infirmity can be attached to the order impugned.
35. It was next contended by the learned A.G.A. that PW-2 Netrapal is an independent witness. This witness in his deposition before Court below has clearly stated that after threshing his wheat crop, he was returning home along with others. As he reached the hut of Pappu, he saw the accused persons and Ravindra Singh sitting together and drinking liquor. This witness has also stated that Ravindra Singh had further stated that after consuming the liquor offered to him, he was feeling giddy. This clearly denotes that the liquor was mixed with some stupefying substance/poisonous substance.
36. In the light of above, the learned A.G.A. submits that irrespective of the submissions urged by the learned counsel for applicants two important circumstances have emerged, which have not been explained by the learned counsel for applicants. Firstly, when the deceased was alive, he was last seen in the company of accused persons by an independent witness i.e. PW-2. Upon information given by PW-2, search was made regarding the whereabouts of Ravindra Singh. In this endevour, PW-1 went to the hut of Pappu, where he saw the accused persons along with the dead body of deceased.
37. On the above conspectus, the learned A.G.A. thus submitted that something more than mere complicity of applicants, who are prospective accused i.e. named in the FIR but exculpated, has emerged in the crime in question. In view of above, the order impugned cannot be said to be illegal, perverse or erroneous. No jurisdictional error has been committed by Court below either. As such, no interference is warranted by this Court in present application.
38. Mr. Dilip Kumar, the learned Senior counsel assisted by Mr. Rizwan Ahamad, the learned counsel representing first informant-opposite party-2 has also opposed the present application. He has, however, adopted the submissions urged by the learned A.G.A. in opposition to this application. Apart from above, it is contended by the learned Senior counsel that as per the deposition of PW-1, the accused persons named in the FIR were seen with the dead body of deceased and they ran away as they saw the first informant. Secondly, as per the deposition of PW-2, the deceased was last seen in the company of accused persons.
39. According to the learned Senior counsel, the credibility and reliability of PW-1 qua the prosecution story that all the accused persons were seen with the dead body of deceased in an attempt to take away the same to hide it and further the accused persons ran away after they saw the first informant is a statement, which exposes something more than mere complicity of prospective accused i.e. the applicants in the crime in question. Secondly, the veracity of the later part of the deposition of PW-1 as noted above cannot be examined by this Court at this intermediate stage of proceedings as this Court is not required to hold a mini trial at the stage of Section 319 Cr.P.C. to find out the innocence of the accused-applicants. It was then contended that as per the deposition of PW-2, the deceased was last seen in the company of accused persons. On this information given by PW-2 Netrapal to the first informant Bhim Singh, he reached the place, where Ravindra Singh was last seen and he saw the accused persons with the dead body of deceased.
40. The aforementioned circumstances are linked to each other and therefore, the burden is upon the accused including the prospective accused i.e. the present applicants to dislodge the veracity of the aforesaid recital occurring in the depositions of PW-1 and PW-2. The said exercise can be undertaken by applicants only during the course of trial.
41. On the cumulative strength of above-noted submissions, it was thus urged by the learned Senior counsel that no illegality or infirmity can be attached to the order impugned. Court below has not committed any error much less a jurisdictional error in summoning the prospective accused i.e. the applicants to stand their trial. As such, the present application is liable to be dismissed by this Court.
42. Having heard Mr. Amit Daga, the learned counsel for applicants, the learned A.G.A. for State-opposite party-1, Mr. Dilip Kumar, the learned Senior counsel assisted by Mr. Rizwan Ahamad, the learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that the issue, which arises for determination in present application is: whether in view of the falacy in the prosecution case qua the present applicants yet the order impugned summoning the applicants as additional accused on the basis of depositions of P.W.-1, Bheem Singh and P.W.-2, Netrapal an independent witnesse can be set-aside even when the complicity of applicants in the crime in question stands emerged as per the deposition of aforesaid witnesses or whether the court while examining the veracity of an order passed by court below in exercise of jurisdiction under Section 319 Cr.P.C. can hold a mini trial to flush out the innocence of prospective accused.
43. This Court is now required to consider whether on the basis of depositions of P.W.-1 Bhim Singh (first informant) and P.W.-2 Netrapal Singh (independent witness), the applicants could have been summoned by court below. As an ancillary issue, Court will also have to consider as to whether court below has exercised it's jurisdiction "diligently" or as termed by Apex Court in a "casual and cavalier fashion".
44. Court below has returned clear and categorical findings that the prospective accused i.e. the applicants herein are named in the FIR. Furthermore, the first informant in his statement under Section 161 Cr.P.C. has clearly supported the prosecution story as unfolded in the FIR. Similarly, Netrapal, who is an independent witness, has also supported the prosecution story to the extent that the deceased was last seen in the company of accused persons including present applicants. No reason is discernible from the case diary as to why the second statement of some of the witnesses was recorded subsequent to their previous statement under Section 161 Cr.P.C., wherein they have supported the FIR. As per the depositions of PW-1 and PW-2, it is not merely the complicity of the accused including the present applicants, which has emerged in the crime in question but much more strong and cogent evidence has emerged against applicants. The medical evidence clearly proves the prosecution story inasmuch as, Ethyl Alcohal and Aluminum Phosphide was found in the body parts of deceased sent for chemical examination. As such, when aforesaid circumstances are taken together, no exception can be carved out in the case of present accused. Accordingly, they were summoned by Court below to stand their trial.
45. Apart from above, as per the depositions of PW-1 and PW-2, two incriminating circumstances have emerged. As per deposition of PW-2, Ravindra Singh (deceased) was last seen in the company of accused persons, where he was drinking liquor. PW-2 has further stated that in his presence Ravindra Singh uttered that he is feeling giddy after consuming the liquor offered by the accused persons. As such, the possibility of the liquor mixed with some stupefying/poisonous substance cannot be ruled out. This witness has further deposed that he had disclosed aforesaid information i.e. presence of Ravindra Singh along with accused persons in the hut of Pappu to the first informant Bheem Singh. Secondly, as Ravindra Singh had not returned home, therefore, first informant PW-1 made a search regarding his whereabouts and also went to the hut of Pappu. PW-1 in his deposition before Court below has clearly stated that when he was 20 meters away from the hut of Pappu, he saw the accused persons with the dead body of deceased. While accused Bhoori Singh and Ratan Singh were holding the hands of deceased, Ramvir and Pappu had caught hold of the legs of deceased in an attempt to take away the dead body of deceased for the purpose of hiding it. The accused person are alleged to have ran away after seeing the first informant Bhoori Singh
46. It is thus apparent that Ravindra Singh was last seen in the company of the accused persons including the present applicants. Further, the accused persons including the present applicants were seen along with the dead body of deceased Ravindra Singh by the first informant. As such, the death of deceased is a fact which is in the special knowledge of the accused persons including the present applicants. Therefore, by reason of Section 106 of the Evidence Act, the burden is upon the accused persons to explain the circumstances leading to the death of deceased. In view of above, something more than mere complicity of applicants in the crime in question stands emerged.
47. It is by now well settled that Court, while dealing with an application under Section 319 Cr.P.C. cannot conduct a mini trial (vide Yashodhan Singh and Others Vs. State of Uttar Pradesh and Another, (2023) 9 SCC 108). Therefore, the veracity of the statement of PW-2 as to whether the deceased was last seen in the company of the accused persons or the veracity of the statement of PW-1 that the accused persons were seen with the dead body of deceased in the hut of Pappu and were attempting to take away the dead body for the purpose of hiding it and further the accused persons ran away after seeing the first informant cannot be examined at this stage.
48. In view of above, the issue relating to the motive for committing the crime in question or there being an incomplete chain of circumstances leading to the death of deceased up to this stage and there being no evidence on record to show that the applicants mixed Aluminium Phosphate in the alcohol consumed by deceased are of no importance as the said issues will not and cannot create a dent in the impugned order.
49. Similarly when the complicity of prospective accused emerged in the depositions of witnesses but the facts and circumstances of the case were otherwise came up for consideration before the Supreme Court in Akhilesh V. State of Uttar Pradesh and Others, 2025 SCC OnLine SC 727. Paragraph 11 of the said report is relevant for the present controversy. Accordingly, the same is extracted herein-below:
"11. In the present case, respondent nos. 2 and 3 were named in the FIR but they were not named in the chargesheet as accused. After recording the depositions of PW-1 and PW-2 which inspired the confidence of the Trial Court, these respondents were summoned to face trial under Section 319 CrPC. The learned counsel for respondent nos. 2 and 3 would argue that credibility of PW-1 is in doubt since PW-1 was not present at the spot at all and thus, was not an eyewitness to the Incident. Further, doubts have been raised on the credibility of PW-2 stating that he is a close relative of the deceased. However, we are of the view that this Court, at this stage, cannot go into these details as these are the issues that would be determined during the trial."
50. The Apex Court in the case of Shiv Baran Vs. State of U.P. and Another 2025 SCC Online SC 1457, has again observed that the Court while considering the veracity of an order passed in exercise of jurisdiction under section 319 Cr.P.C. is not required to record the satisfaction which is short of the standard necessary for passing a judgement after trial. Paragraphs 22, 23, 24 and 25 of the aforesaid report are relevant for the controversy in hand. Accordingly, the same are reproduced herein below:
"22. The evidence from all three alleged eyewitnesses, although prima facie, suggests the complicity of Rajendra (Respondent No. 2); a specific role being assigned to him, indicating that he was present at the scene of the occurrence, armed with a stick. The High Court tried to apply the same standard in deciding this application as is ordinarily used at the end of the trial in determining the conviction or otherwise of the accused. Whereas it ought to have considered that the standard of satisfaction required is short of the standard necessary for passing a final judgment after trial.
23. Rajendra, although not charge sheeted, was named in the FIR, and the evidence thus far, leads, prima facie, to reveal his role. Therefore, at this stage, there is sufficient material to put him on trial; whether he will ultimately be convicted or not is left to be determined by a full-fledged inquiry at the end of the trial. It would be premature to comment anything on his conviction. The first informant categorically mentioned him as the one who came along with the others, with a common intent, abusing and beating, causing the death of his brother, apart from causing serious injuries to the others.
24. In our considered view, the High Court proceeded to conduct a mini trial solely relying upon the affidavits submitted before the Superintendent of Police qua the innocence of Respondent No. 2. It erred in giving a categorical finding on the merits of PW1, the injured eyewitness not to have named Respondent No. 2, which we find is based on erroneous assumption and contrary to the factual position emerging from the record. The High Court erred in observing that witnesses have stated nothing about the motive of the crime; that the depositions are silent on the aspect of common intention; absence of the manner or sequence of occurrence of the incident; or that it cannot be inferred who is the aggressor. All these questions, amongst others, are relevant or not is a matter to be considered at the stage of final adjudication.
25. It is a settled law that the power under Section 319 CrPC must be exercised sparingly. However, where the evidence reveals the complicity of the prospective accused, it becomes obligatory for the authority to exercise the power provided under the said Section."
51. Thus when the order impugned is examined in the light of aforesaid observations made by the Apex Court, it is apparent that none of the grounds urged by the learned counsel for revisionists in support of present criminal revision are cogent enough to set aside the order impugned in present criminal revision.
52. In view of the discussion made above, since something more than mere complicity of applicants has emerged in the crime in question, therefore, the issues raised by Mr. Amit Daga, the learned counsel for applicants (prospective accused) are nothing else but fanciful doubts, which do not dislodge the order impugned.
53. As a result, the present application fails and is liable to be dismissed.
54. It is, accordingly, dismissed.
Order Date :- 01.08.2025/Vinay