Allahabad High Court
Sudhir Kumar vs State Of U.P. & Another on 30 March, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 20.03.2018 Judgment delivered on 30.03.2018 Case :- CRIMINAL REVISION No. - 3073 of 2008 Revisionist :- Sudhir Kumar Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Manvendra Dixit,Ashok Kumar Tripathi (Now Counsel for Opposite Party :- Govt. Advocate,K.P.Srivastava,P.K.Srivastava Hon'ble Dinesh Kumar Singh-I,J.
1. This criminal revision has been directed against order dated 18/10/2008 passed by the Additional Sessions Judge (FTC) Court No. 15, Bulandshahar in Session Trial Number 1418 of 2008, State vs Ravindra, PS, Aagauta, District Bulandshahar on application No. 26 B moved by ADGC, Bulandshahar under section 319 Cr. P.C., whereby the said application has been allowed and the accused-revisionist has been summoned to face trial under section 307/34 IPC.
2. The prosecution version in the F.I.R., as narrated by the first informant is that on 09/10/2007 at about 12.30 hours, the grandson of the first informant Kuldeep was going home. On the way Ravindra started abusing him and fired upon him by a pistol which hit his stomach. On his raising alarm, many people reached the spot and the accused fled from there. The F.I.R. was lodged by him by reaching the police station with injured Kuldeep. The police had submitted charge sheet against Ravindra only. The story of the F.I.R. has been verbatim stated by the first informant, Jagpal Singh before Investigating Officer. The injured Kuldeep stated before Investigating Officer that when he was returning home, near the house of Chandra Pal on the way, Ravindra had made a fire upon him. In medical examination report only one fire injury of entry 1 cm × 1 cm has been recorded which corroborates the version of the first information report. Thereafter, during trial, in the statement made by injured Kuldeep as PW 1 he stated that he knew accused Ravindra and Sudhir (accused- revisionist). Both belonged to his village. On 09/10/2007 he was returning home. When he reached near house of Chandra Pal at about 1 PM, Ravindra was standing on the roof. Accused-revisionist exhorted Ravindra to fire upon him, in pursuance of which Ravindra had made fire upon him by a pistol with an intention to kill, by which he fell conscious. A report of this occurrence had been registered by someone in the name of his grandfather. When the next day he told his uncle Upendra about this occurrence, he sent a telegram to SHO, Aagauta. In cross-examination this witness has stated that his uncle Upendra had asked him as to who had fired upon him, then he had told him, first of all, the names of those persons to him. When he was asked as to whether it was written in the telegram or not that Sudhir had told Ravindra that he should fire upon him, he responded that he does not know about this but he had definitely apprised his uncle about this. He had never gone to the police station. It was wrong to say that because he had not taken name of Sudhir in his statement recorded under section 161 Cr.P.C. on 09/10/2007, therefore under legal advice he was stating that his statement was not recorded by police. Further, he stated that at the time when Ravindra had fired upon him, he was about 9 feet away from him. The first informant, Jagpal Singh stated as PW 2 before Court that he had not lodged any F.I.R. and turned hostile. The telegram which is reported to have been sent to the SHO, Aagauta has also been annexed, which is alleged to have been sent by Upendra Malik, in which it is mentioned that about 11 months back he was told by the villagers that his grandson was fired upon by Ravindra about 12.00 or12.30 in the noon, but he did not have much knowledge about this occurrence. The uncle of the injured, Upendra Malik gave an application addressed to SHO, Aagauta, stating therein that in October, 2007, his nephew Kuldeep Malik was fired upon at about 1.00 PM with an intention to kill. He along with some others had taken him to police station. His condition was critical. The police referred him immediately to District hospital, Bulandshahar and from there he was referred to All India Institute of Medical Sciences Delhi, and from there he was taken to Safdarjang hospital and after being operated there, the bullet was removed. He was still admitted in the hospital. On way he had apprised him that he was going with Shiv Kumar, when he reached in front of the house of Chandra Pal Singh, Ravindra fired upon from the roof of his house and at that time Sudhir was also with him, by which Kuldeep fell down, report be registered and necessary action be taken.
3. On the basis of above evidence, the learned lower Court, after hearing the arguments of both the sides, has mentioned in the impugned judgment and order that in the present case, on F.I.R. of Jaipal, which was written by Rishi Pal, a case crime no. 217 of 2007 was registered against accused Ravindra Singh under section 307 IPC at PS, Aagauta on 9/10/2007. After investigation charge sheet was submitted under section 307 IPC by the Investigating Officer against accused Ravindra. Charge was framed against him on 14/10/2008. Thereafter on 12/08/2008, injured Kuldeep Singh Malik was examined, who in his examination in chief stated that he knew accused Ravindra and Sudhir. Both were of his village. On 9/10/2008 he was coming from home towards 'gher' and as soon as he reached near the house of Chandra Pal, at about 1.00 PM, Ravindra and Sudhir were standing on the roof of Ravindra. Sudhir had spoken to Ravindra to fire upon the injured, at which Ravindra fired upon him with a pistol, which hit him and he turned unconscious. Therefore Ravindra had fired upon the injured Kuldeep only at the instance of Sudhir with an intention to kill. The said witness was cross-examined also. Besides this the uncle of the injured, Upendra Malik had sent to the SHO, Aagauta a telegram on 10/10/2007 apart from the papers of the treatment of Kuldeep. On the basis of these documentary evidence as well as oral evidence the lower Court has found the evidence on record to be sufficient to summon the accused revisionist under section 307 read with 34 IPC to face trial with the co-accused and consequently allowed the said application.
4. The learned counsel for the revisionist Sri Ashok Kumar Tripathi has contended that the first informant, grandfather of the injured, who had lodged the F.I.R., has turned hostile by saying that he had not lodged the F.I.R. and that he had heard from some villagers that his grandson was fired upon by Ravindra. He did not know much about the said occurrence. He did not take the name of the accused-revisionist to be involved in this occurrence. Further, it is contended that the accused Ravindra has been held guilty after trial. The accused-revisionist has been sought to be falsely implicated due to previous enmity with the complainant side. Even the prosecution story which is being alleged by the uncle of the injured in the telegram sent by him, is not getting support from the statement of the injured, because in the telegram it has not been stated that at the instance of Sudhir, accused Ravindra had made fire upon the accused, rather it was mentioned in the said telegram that he was only standing with Ravindra. It is further contended that the improvement has been made in the prosecution version with malafide intention to falsely implicate the accused- revisionist. The said modification in the version of the prosecution stands belied because in the injury memo, the injured is found to have suffered a firearm injury, in which blackening and tattooing is found which is possible only when a fire arm injury is made from a close range from 2 to 3 feet. Therefore, the modified version of the prosecution that the injured was fired upon from the roof of the house of the accused also stands belied. It is further stated that the learned lower Court has not made a proper appreciation of the evidence on record and has summoned the accused- revisionist in a casual manner to face the trial. The law to summon the accused under section 319 Cr. P.C. has been interpreted in a Catena of Cases, in which it has been clearly laid down that the evidence to summon an accused under the said section should be so strong that in case the same is left unrebutted, there would be fair chance of conviction of the accused to be summoned. In the case at hand no such strong piece of evidence has come on record against the accused-revisionist.
5. On the other hand, from the side of the learned counsel for the opposite party No. 2 Sri P.K. Srivastava, it has been argued that section 319 Cr. P.C. lays down that if in a course of trial, 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. Drawing attention to this provision it was argued that the revisionist- accused has sufficient evidence against him on record in the form of statement of the injured having deposed against him, assigning role of exhortation, because at his exhortation only, the co-accused had fired upon the injured. It was also emphasised that the F.I.R. was not lodged by the grandfather of the injured, therefore his turning hostile does not adversely affect the case of prosecution. In fact, some other person had lodged the said F.I.R. in the name of grandfather of the injured. It was also emphasised that the telegram sent by the uncle of the injured immediately after the occurrence, does disclose the name of the accused- revisionist being involved in commission of the present crime, in which it is clearly mentioned that at the time of the co-accused making fire upon the injured, the accused-revisionist was standing by his side. He has placed reliance upon Ram Pal Singh vs. State of U.P. & Ors, 2009 (4) SCC 423 and Hardeep Singh vs. State of Punjab and others, 2014 (1) ADJ 727 (SC). Both the rulings have been gone through by me thoroughly. The principle of summoning the person as accused under section 319 Cr.P.C is laid down in Hardeep Singh's case (supra) which shall be referred at appropriate place.
6. After having heard the arguments of both the sides and having perused the evidence cited above, this Court is of the view that the impugned order deserves to be set aside because in the estimation of this Court, the evidence which has come on record against the accused- revisionist is not of such a strong nature that if the same is left unrebutted, the accused could be convicted.
7. It would not be out of place to refer here the interpretation made by the Hon'ble Apex Court in Hardeep Singh vs. State of Punjab and others, 2014 (1) ADJ 727 (SC) of section 319 Criminal Procedure Code, which is a leading case on the point as to when a person may be summoned as an accused to face trial with the co-accused; what kind of evidence should come on record to summon such a person to face trial. The relevant paragraphs of the said judgment are reproduced herein below:
"71. It is, therefore, clear that the word "evidence" in Section 319 Cr.P.C. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation.
80. In view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under 319 Cr.P.C. The ''evidence' is thus, limited to the evidence recorded during trial.
Q.(ii) Does the word ''evidence' in Section 319 Cr.P.C. means as arising in Examination-in-Chief or also together with Cross- Examination?
83. As held in Mohd. Shafi (Supra) and Harbhajan Singh (Supra), all that is required for the exercise of the power under 319 Cr.P.C. is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. The pre-requisite for the exercise of this power is similar to the prima facie view which the magistrate must come to in order to take cognizance of the offence. Therefore, no straight-jacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the Magistrate/Court is convinced even on the basis of evidence appearing in Examination-in-Chief, it can exercise the power under 319 Cr.P.C. and can proceed against such other person(s). It is essential to note that the Section also uses the words ''such person could be tried' instead of should be tried. Hence, what is required is not to have a mini-trial at this stage by having examination and cross-examination and thereafter rendering a decision on the overt act of such person sought to be added. In fact, it is this mini-trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all, for in light of sub-section 4 of Section 319 Cr.P.C., the person would be entitled to a fresh trial where he would have all the rights including the right to cross examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. Therefore, even on the basis of Examination- in-Chief, the Court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by Cross Examination, undoubtedly in itself, is an evidence.
84. Further, in our opinion, there does not seem to be any logic behind waiting till the cross-examination of the witness is over. It is to be kept in mind that at the t ime of exercise of power under 319 Cr.P.C., the person sought to be arraigned as an accused, is in no way participating in the trial. Even if the cross-examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross examine the witness(s) prior to passing of an order under 319 Cr.P.C., as such a procedure is not contemplated by the Cr.P.C. Secondly, invariably the State would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness(s) is obliterating the role of persons already facing trial. More so, 319 Cr.P.C. enables the court to record evidence in absence of the accused in the circumstances mentioned therein.
98. Power under 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."
8. Now, it may further clarified by this Court as to why this Court finds that there is no sufficient evidence on record to summon the accused- revisionist in the present case to face trial under the aforesaid section. It is apparent from the evidence on record that the first informant, the grandfather of the injured, who had written the F.I.R., has turned hostile. In the F.I.R. no mention is made that at the exhortation of the accused- revisionist the co-accused had made fire upon the injured. Similarly, in the statements given under section 161 Cr.P.C. by both the first informant as well as the injured, there is not an iota of evidence that the fire was made upon the injured at the instance of accused-revisionist. Even in the so-called telegram allegedly sent by uncle of the injured to the SHO, it has not been mentioned that the present accused-revisionist had instigated the co-accused to fire upon the injured. It is for the first time that the injured himself has taken name of the present accused-revisionist during his statement before Court as PW 1 that he modified the prosecution story that it was at the instance of the present accused- revisionist that the co-accused had fired upon the injured. Therefore, there is strong force in the argument of the learned counsel for the revisionist that this was an afterthought, may be on account of enmity, that the injured has taken name of the present accused - revisionist at a belated stage to have instigated the co-accused to fire upon the injured. The learned lower Court has not made proper appreciation of the evidence on record against the accused- revisionist. Whatever evidence has come on record against the accused-revisionist does not appear to be sufficient to result in his conviction, if left unrebutted. Therefore the impugned order deserves to be set aside, and is accordingly set aside. Revision is allowed Order Date: 30.03.2018 AU/h