Allahabad High Court
Ishwar vs State Of U.P. And Another on 19 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved On: 08.12.2022 Delivered On:19.12.2022 Court No. - 88 Case :- CRIMINAL REVISION No. - 1793 of 2018 Revisionist :- Ishwar Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Madan Singh Counsel for Opposite Party :- G.A.,Ronak Chaturvedi Hon'ble Syed Aftab Husain Rizvi,J.
1. Heard learned counsel for the revisionist, learned counsel for opposite party no.2 as well as learned AGA for the State.
2. This criminal revision is filed to set aside the order dated 8.03.2018 passed by Additional Sessions Judge, court no.6, Bijnor in S.T. No.192 of 2017 (State vs. Nand Lal and ors) in case crime no.446 of 2016, U/s 323/34, 304/34, 504, 506 IPC, P.S. Dhampur, District Bijnor.
3. In brief the facts are that an FIR crime no. 446 of 2016 was lodged on 08.07.2016 naming the applicants Ishwar, Nand Lal, Keshav and Ghanshyam. The allegations of the FIR is that on 08.07.2016 at 10:30-11:00 am, applicant- Ishwar, Nand Lal, Ghanshyam and Keshav started construction over the disputed land. The complainant and her husband and daughter Tannu prevented them from doing so, then all the four accused persons assaulted the complainant, putting him on earth, they assaulted him with bricks. Her husband received injuries in the stomach and became unconscious. The complainant and her daughter tried to save him then accused-persons assaulted them. They went away from there abusing and extending threats with death. The complainant took her husband to the hospital where he is under treatment. Initially the case was registered under section 323, 504, 506 IPC. Due to the death of injured, Section 304 IPC was added. After investigation, charge-sheet was submitted only against three accused namely Nand Lal, Ghanshyam and Keshav. The Investigating Officer exonerated the other named accused Ishwar. During the course of trial, after examination in chief of P.W.-1 Savita Devi (complainant/ injured) an application U/s 319 Cr.P.C. was moved by the complainant/ prosecution alleging therein that accused Ishwar is named in the FIR and complainant Savita in her statement under section 161 Cr.P.C has assigned the same role to him as the remaining accused. The examination in chief of Savita has been recorded in the court, she is one of the injured witness. The complicity of the accused Ishwar is like other co-accuse persons, hence accused Ishwar be also summoned U/s 319 Cr.P.C. for trial. The learned trial court by the impugned order dated 08.03.2018 has allowed the aforesaid application and has summoned the revisionist accused Ishwar to face trial for offence U/s 304/34, 323/34, 504 & 506 IPC.
4. It is contended by learned counsel for the revisionist that learned trial court has summoned the revisionist only on the basis of statement recorded under section 161 Cr.P.C. as well as examination in chief of the complainant. Without considering the entire facts and circumstances of the case, the statement U/s 161 Cr.P.C. has been relied. Hence the summoning order is illegal and arbitrary on the face of record and is not sustainable in the eyes of law. It is submitted by learned counsel for the revisionist that general allegations have been levelled against all the accused persons. No specific allegations has been levelled against any accused persons during the course of investigation. The Investigating Officer has collected the evidence to the effect that on the date of incident, the location of mobile number of the revisionist was not near the place of incident. The revisionist having two mobile numbers bearing nos. 8273535308 and 9568363773 and the location of these mobile numbers shown at Moradabad. After verification of call detail records, it was found that he was not present at the place of occurrence. The Investigating Officer has recorded the statement of Munesh Kumar (principal of coaching centre) where the revisionist was studying and other independent witnesses namely Monu Kumar, Manjul Kumar, Ranjeet Singh, Munendra Singh, Krishna Kumar, Jitendra etc. under section 161 Cr.P.C. and they have stated that on 08.07.2016 the revisionist was present in the coaching institute from 9:30 am to 12 noon. During the course of investigation, evidence to this effect has come that on the date of incident, the revisionist was not present at the spot and accordingly the Investigating Officer deleted his name. It is further contended that power U/s 319 Cr.P.C. is to be exercised sparingly only when strong and cogent evidence occurs. 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 led to conviction. In the absence of such satisfaction, the court should refrain from exercising power under section 319 Cr.P.C. Learned counsel further contended that P.W.-1 in her statement illegally and falsely given the name of the revisionist as well as the entire family. The learned trial court without any evidence & reasons and without recording the satisfaction has illegally summoned the revisionist. The order is not sustainable in the eye of law. It is also contended that the learned trial court without considering the legal aspect of the matter and without considering the facts and circumstances of the case, has illegally summoned the revisionist to face the trial. Learned counsel placed reliance on the constitutional bench case of Apex Court Hardeep Singh vs. State of Punjab and ors AIR 2014 Supreme Court 1400 SC, the relevant paragraphs are quoted below:
"98. Power under Section 319, Cr.P.C. is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
99. Thus, we hold that though only a prima-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."
Learned counsel also placed reliance on the case law of Brijendra Singh and ors vs. State of Rajasthan (2017) 7 SCC 706. The relevant paragraphs are quoted below:
" 14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants.The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 km. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 CrPC to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that the appellants' plea of alibi was correct.
15. This record was before the trial court. Notwithstanding the same, the trial court went by the depositions of the complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the "evidence" recorded during trial was nothing more than the statements which were already there under Section 161 CrPC recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where a plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty-bourd to look into the same while forming prima facie opinion and to see as to whether much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the revision petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing the agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."
On the aforesaid ground, learned counsel submitted that the impugned order is arbitrary and illegal and is liable to be set aside.
5. Learned AGA and learned counsel appearing for opposite party no.2 submitted that the Investigating Officer in collusion with the accused has wrongly exonerated the revisionist whereas the injured of the present case had specifically named the revisionist as one of the accused who not only participated in causing death of her husband but also caused injuries to her. The Investigating Officer has referred to two mobile numbers 8273535308 and 9568363773. The location of mobile number 8273535308 has been shown at Moradabad, however, as per the verification report of the user of this number, it was informed to the Investigating Officer that this number is registered in the name of Keshav Kumar, the uncle of the revisionist. Thus, even the so called mobile detail record does not establish that the revisionist was at a different location inasmuch as the mobile number on the basis of which the Investigating Officer has come to this conclusion, belongs to Keshav Kumar and not to the revisionist. The entire case diary does not contain any call detail record and only a passing reference has been made by the Investigating Officer with respect to the two mobile numbers. It is further contended that the complicity of the revisionist is consistently established right from the FIR from the statement recorded U/s 161 Cr.P.C. as well as from the statement of injured witness recorded on oath before the trial court. The revisionist has not filed any document in order to substantiate his alleged plea of alibi. Further it is a settled law that plea of alibi can be considered at the state of trial. Learned counsel further contended that the revisionist has equally participated in the commission of the offence, the presence of the revisionist at the place of time and occurrence is clearly established from the statement of the injured witness during the course of trial. Learned counsel contended that P.W.-1 being injured witness, her testimony is on a high pedestal and cannot be taken lightly and ignored. For summoning the accused under section 319 Cr.P.C. the examination in chief of the witness is sufficient and the witness being injured, her testimony cannot be discarded. The learned trial court considering the evidence, on record has rightly summoned the revisionist U/s 319 Cr.P.C. and as such there is no illegality or infirmity in the impugned order. More than, prima-facie evidence is available against the revisionist. The revision lacks merit and deserves to be dismissed. Learned counsel placed reliance on the case law of Manjeet Singh vs. State of Haryana and ors 2021 SCC On Line SC 632. The relevant paragraphs are quoted below:
"35. Applying the law laid down in the aforesaid decisions to the facts of the case on hand we are of the opinion that the Learned trial Court as well as the High Court have materially erred in dismissing the application under Section 319 Cr.P.C. and refusing to summon the private respondents herein to face the trial in exercising the powers under Section 319 Cr.P.C. It is required to be noted that in the FIR No.477 all the private respondents herein who are sought to be arraigned as additional accused were specifically named with specific role attributed to them. It is specifically mentioned that while they were returning back, Mahendra XUV bearing no. HR-40A-4352 was standing on the road which belongs to Sartaj Singh and Sukhpal. Tejpal, Parab Saran Singh, Preet Samrat and Sartaj were standing. Parab Sharan was having lathi in his hand, Tejpal was having a gandsi, Sukhpal was having a danda, Sartaj was having a revolver and Preet Singh was sitting in the jeep. It is specifically mentioned in the FIR that all the aforesaid persons with common intention parked the Mahendra XUV HR-40A-4352 in a manner which blocks the entire road and they were armed with the weapons. Despite the above specific allegations, when the charge-sheet/final report came to be filled only two persons came to be charge-sheeted and the private respondents herein though named in the FIR were put/kept in column no. 2. It is the case on behalf of the private respondents herein that four different DSPs inquired into the matter and thereafter when no evidence was found against them the private respondents herein were put in column no. 2 and therefore the same is to be given much weightage rather than considering/believing the examination-In-chief of the appellant herein. Heavy reliance is placed on the case of Brijendra Singh (Supra). However none of DSPs and/or their reports, if any, are part of the charge-sheet. None of the DSPs are shown as witnesses. None of the DSPs are Investigating Officer. Even on considering the final report/charge-sheet as a whole there does not appear to be any consideration on the specific allegations qua the accused the private respondents herein who are kept in column no. 2. Entire discussion in the charge-sheet/final report is against Sartaj Singh only.
36. So far as the private respondents are concerned only thing which is stated is "During the investigation of the present case, Shri Baljinder Singh, HPS, D.SP Assandh and Shri Kushalpal, HPS, DSP Indri found accused Tejpal Singh, Sukhpal Singh, sons of Gurdev Singh, Parab Sharan Singh and Preet Samrat Singh sons of Mohan Sarup Singh cast Jat Sikh, residents of Bandrala innocent and accordingly Sections 148, 149 and 341 of the IPC were deleted in the case and they were kept in column no. 2, whereas challan against accused Sartaj has been presented in the court."
37. Now thereafter when in the examination-in-chief the appellant herein - victim - injured eye witness has specifically named the private respondents herein with specific role attributed to them, the Learned trial Court as well as the High Court ought to have summoned the private respondents herein to face the trial. At this stage it is required to be noted that so far as the appellant herein is concerned he is an injured eye-witness. As observed by this Court in the cases of State of MP v. Mansingh (2003) 10 SCC 414 (para 9); Abdul Sayeed v. State of MP (2010) 10 SCC 259; State of Uttar Pradesh v. Naresh (2011) 4 SCC 324, the evidence of an injured eye witness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly. As observed hereinabove while exercising the powers under Section 319 Cr.P.C. the Court has not to wait till the cross-examination and on the basis of the examination-in-chief of a witness if a case is made out, a person can be summoned to face the trial under Section 319 Cr.P.C.
38. Now so far as the reasoning given by the High Court while dismissing the revision application and confirming the order passed by the Learned trial Court dismissing the application under Section 319 Cr.P.C. is concerned, the High Court itself has observed that P.W.-1 Manjeet Singh is the injured witness and therefore his presence cannot be doubted as he has received fire arm injuries along with the deceased. However, thereafter the High Court has observed that the statement of Manjeet Singh indicates over implication and that no injury has been attributed to either of the respondents except they were armed with weapons and the concerned injuries are attributed only to Sartaj Singh even for the sake of arguments someone was present with Sartaj Singh it cannot be said that they had any common intention or there was meeting of mind or knew that Sartaj would be firing. The aforesaid reasonings are not sustainable at all. At the stage of exercising the powers under Section 319 Cr.P.C., the Court is not required to appreciate and/or enter on the merits of the allegations of the case. The High Court has lost sight of the fact that the allegations against all the accused persons right from the very beginning were for the offences under Sections 302, 307, 341, 148 & 149 IPC. The High Court has failed to appreciate the fact that for attracting the offence under Section 149 IPC only forming part of unlawful assembly is sufficient and the individual role and/or overt act is immaterial. Therefore, the reasoning given by the High Court that no injury has been attributed to either of the respondents except that they were armed with weapons and therefore, they cannot be added as accused is unsustainable. The Learned trial Court and the High Court have failed to exercise the jurisdiction and/or powers while exercising the powers under Section 319 Cr.P.C.."
He also placed reliance on the case law of Rajesh and ors vs.State of Haryana, (2019) 6 SCC 368 wherein informant named 10 persons for attempt to murder of his son and another with specific allegations against all the accused. The Investigating Officer submitted his report U/s 173 (2) Cr.P.C. against four accused only, no challan filed against six accused (appellants). The trial proceeded against four accused only. During trial, P.W.-1 (complainant) and P.W.-2 (injured witness) specifically stated that overacts by the accused appellants and role played by them. An application for proceeding against them under section 319 Cr.P.C. was allowed by the trial court. The High Court dismissed the revision. The Apex Court held that the appellants herein had also named in the FIR. In the deposition before court, P.W. 1 & 2 have specifically stated against appellants and specific roles attributed to them. On the basis of the same, the persons against whom, no charge-sheet is filed can be summoned to face the trial. No error has been committed by the courts below to summon the appellants therein to face the trial in exercise of power U/s 319 Cr.P.C.
6. It is undisputed that the revisionist was named in the FIR showing his complicity in the incident, one person has died in the incident while the another (complainant) has received injuries. The Investigating Officer has exonerated the revisionist during the investigation, on the basis of evidence that at the relevant time, his presence is not established to be at the place of occurrence as he was present at Moradabad in his coaching institute. The Investigating Officer has recorded the statement of the Manager of the coaching institute and some other witnesses. This fact is un-controverted that the mobile No. 8273535308, the location of which is shown to be at Moradabad is registered in the name of Keshav Kumar and further that the entire case diary does not contain any CDR and only passing reference has been made by the Investigating Officer with respect to the two mobile numbers. The FIR of this case has been lodged by the complainant who has also received injuries in the incident naming the revisionist and attributing the role of taking participation in the incident. In her statement recorded U/s 161 Cr.P.C., she has reiterated the allegations of the FIR but the Investigating Officer on the basis of the material collected during the course of investigation as discussed above has exonerated the revisionist. During the course of trial, complainant has been examined as P.W.-1. Her examination in chief, was recorded in which she has again corroborated the allegations of the FIR showing the complicity of the revisionist in the incident. It is settled law that the testimony of injured witness is of higher value and cannot be ignored. In the case of Hardeep Singh (Supra), the Apex Court held that the power U/s 319 Cr.P.C. can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross examination for, it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence. The Apex Court while dealing the question "what is the degree of satisfaction required for invoking the power U/s 319 Cr.P.C." has answered it "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."
7. So applying the test laid down by the Apex Court on the present set of facts, it is clear that there is strong evidence, than mere probability of the complicity of the accused in the form of testimony of injured witness and it pass the test as laid down by the Apex Court 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 led to conviction. Further the material on the basis of which the revisionist was exonerated by the Investigating Officer is not conclusive in nature and this fact distinguish this case from the case law of Bijendra Singh vs. State of Rajasthan (2017) 7 SCC 706 relied on by the learned counsel for the revisionist. The case law cited by learned counsel for opposite party no.2 fully supports his arguments and applicable in the present set of facts.
8. In the impugned order, the learned trial court has narrated the entire facts and material on record and has critically analyzed all these materials. Learned trial court has recorded its satisfaction about the complicity of the revisionist and, therefore, has summoned him. The order is a detailed and reasoned one which is just and proper. There is no illegality or infirmity in the impugned and it need no interference.
9. Accordingly, the revision is devoid of merits and is hereby dismissed.
Order Date :- 19.12.2022 C. MANI