Allahabad High Court
Monu @ Shivendra Singh And 3 Others vs State Of U.P. And Another on 24 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:172355 Court No. - 84 Case :- CRIMINAL APPEAL No. - 3115 of 2023 Appellant :- Monu @ Shivendra Singh And 3 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Ghan Shyam Das,Ashok Kumar Singh,Ram Autar Verma,Sr. Advocate Counsel for Respondent :- G.A.,Ajay Kumar Pandey,Pavan Kumar,Subhash Chandra Maurya Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned counsel for the appellants, learned counsel for the opposite party no. 2 and perused the record.
This is an appeal preferred against the order dated 14.03.2023 passed by the Special Judge, SC/ST Act, Mainpuri in Special Session Trial No. 161 of 2022 (State Vs. Shivam @ J.P. & others) arising out of Case Crime No. 259 of 2022 under Sections 302, 201 IPC and 3(2)5 SC/ST Act, Police Station Bewar, District Mainpuri.
By the impugned order the trial court allowed the application under Section 319 Cr.P.C. moved by the first informant - opposite party no. 2 and summoned the appellants; Monu @ Shivendra Singh, Vishnu, Atul Kumar and Sudeep Kumar to face trial under Sections 302, 201 IPC and 3(2)5 SC/ST Act.
As per facts of the case, on 02.09.2022 at 20.02 hours an FIR, Case Crime No. 259 of 2022 was lodged by the opposite party no. 2, Pooja Devi against Monu @ Shivendra Singh, Vishnu, Atul Kumar and Sudeep Kumar, regarding incident dated 01.09.2022 with the allegation that her husband, Manoj Kumar Jatav had taken a loan of Rs. 1,00,000/- from Mangal Singh. Mangal Singh never demanded his money back. Monu @ Shivendra Singh on the strength of his hooliganism was demanding Rs. 11 lacs in lieu of Rs. 1,00,000/- taken as loan from Mangal Singh by Manoj Kumar and was giving threat either to pay Rs. 11 lacs or to execute the sale deed of his land on highway in his favour. On 01.09.2022 in the noon Monu @ Shivendra Singh along with Vishnu, Atul Kumar and Sudeep Kumar called her husband, Manoj Kumar Jatav near the house of Manoj Kumar Jatav, had a talk with him and went back. In the evening at about 8.30 p.m. on 01.09.2022 her husband Manoj Kumar Jatav received a call on his mobile and after having conversation he went out of the house and since then his whereabouts are not known. After investigation the charge sheet was filed against Shivam @ J.P., Karu @ Subodh Sharma and the four persons named in the present FIR were exonerated by the Investigating Officer.
It is argued by the learned counsel for the appellants that as per FIR, because the husband of the first informant left his home alone at 8.30 p.m., so there was no evidence of last seen regarding missing of Manoj Kumar against the appellants. Next day of lodging missing report of her husband, first informant Pooja Devi moved an application in the police station again that the dead body of her husband is found in the field of Karu, who is the brother of accused Monu @ Shivendra. Thus the appellants are the persons, who committed murder of Manoj Kumar and hide the dead body in the crop. Though, Pooja Devi, Nanak Ram and Mukesh Kumar, both brothers of the deceased Manoj Kumar Jatav gave their statements under Section 161 Cr.P.C. against the present appellants but the Investigating Officer recorded the statements of independent witnesses Pravendra Singh @ Karu s/o Randheer Singh, Satyendra Singh s/o Ahivaran Singh, Umesh Chandra s/o Bansh Lal Sharma, Smt. Anita Devi w/o Hanuman Singh Jatav, Mohan Lal s/o Munna Lal Jatav, Harbhan Singh s/o Ram Dulare and Raghuraj Singh s/o Devi Singh. All of them gave the statements that in the night of 01.09.2022 at 8.30 p.m. the deceased was enjoying liquor with J.P. @ Shivam and Karu @ Subodh Sharma. After that, they heard the sound of two fires but they thought that the persons guarding their crops were cracking the fire works. Later on, Manoj Kumar Jatav was found missing and his dead body was found in the field of Karu. On the basis of statements of these persons, the Investigating Officer filed charge sheet against J.P. @ Shivam and Karu @ Subodh Sharma, whose names were not mentioned in the FIR. After the statements of PW 1 - Pooja Devi, PW 2 Mukesh, the elder brother of the deceased, Manoj Kumar on the application under Section 319 Cr.P.C. moved by the first informant the trial court summoned all the four appellants to face trial under Sections 302, 201 IPC and 3(2)5 SC/ST Act along with J.P. @ Shivam and Karu @ Subodh Sharma, who were already facing trial.
The trial court found that both the witnesses PW-1, first informant and PW-2, brother of the deceased supported the version of the FIR and reiterated that the appellants were indulged in the murder of Manoj Kumar Jatav. On the basis of judgements, Hardae Vs. State of U.P., 2016(2)JIC283(SC) the trial court found that during trial on the basis of documentary evidence the trial court could summon the suspicious persons to face the trial. Such order cannot be said to be illegal. On the basis of judgement, Hardeep Singh Vs. State of Punjab & others, 2014 SCW 667, the trial court found that the power under Section 319 Cr.P.C. is an extraordinary power, which must be used sparingly only in those cases where the circumstances of the cases so warrants. On the basis of the statements of PW 1 and PW 2 referring above two judgements of the Apex Court, the trial court summoned the appellants to face the trial accordingly.
It is argued by the learned counsel for the appellants that the trial court misinterpreted the judgement in Hardae (supra) and Hardeep Singh (supra). The Apex Court further interpreted the law laid down in the judgement Hardeep (supra) and opined that it is the decree of satisfaction that is required for invoking the power under Section 319 Cr.P.C.
Learned counsel for the appellants drew the attention of the court towards the first information report and statements of the first informant and his brother-in-law Mukesh Kumar and argued that in the FIR the first informant has mentioned that all the appellants came in the noon of 01.09.2022 only and in the evening of that date at 8.30 her husband went alone outside the house and since then he was missing. While in her statement before the trial court both these witnesses have improved their statements. PW 1 first informant has now changed the story and stated that it was only in the evening at 8.30 on 01.09.2022 that a phone call of the appellant Monu @ Shivendra Singh came on the mobile of her husband, who did not pick up the call. Rest three appellants; Vishnu, Atul and Sudeep came and took her husband with them because Manoj Kumar did not pick up the phone of Monu and Monu was calling Manoj Kumar and since then he did not come back. Thus, the statement of the first informant as PW 1 is against the version of the FIR because in the FIR the appellants are said to have come to the house of first informant and deceased on 01.09.2022 in the noon and as per the statement of the first informant in the court, three appellants except appellant - Monu are said to have come at the house of first informant in the evening at 8.00 on 01.09.2022 and are said to take away the deceased with them on the call of appellant - Monu. Since then, the whereabouts of Manoj are not known.
PW 2 - Mukesh in his statement in the court has also impressed upon the visit of three appellants except Monu at 8.30 p.m. on 01.09.2022 at the house of the deceased. It is said that all the three appellants took the deceased with them saying that the appellant no. 1 Monu has called him as he (Manoj Kumar) was not picking up the phone of appellant Monu.
Thus, the statements of PW 1 and PW 2 are against the version of the FIR. This evidence cannot be said to be reliable or cogent evidence. Again in the statements of PW 1 and PW 2 it has come that one Kundan had disclosed them that all the four appellants had committed murder of Manoj Kumar Jatav. He himself had seen all the four appellants committing murder of Manoj Kumar Jatav but neither the statement of this Kundan was recorded by the Investigating Officer under Section 161 Cr.P.C. nor he has been arrayed as witness in the charge sheet. Thus, the evidence on record claiming to be insufficient for summoning the appellants under Section 319 Cr.P.C., learned counsel for the appellants prayed to set aside the impugned order.
Learned counsel for the opposite party no. 2 opposed the prayer and submitted that the scope of Section 319 Cr.P.C. is very limited. As the trial court had recorded the statements of PW 1 and PW 2 that court had noted the demeanour of the witnesses, so the decree of satisfaction of the trial court would be considered sufficient. It is further submitted that the ocular evidence is given more weightage than any other evidence. As per judgement Hardeep Singh (supra) the test to be applied for summoning the accused under Section 319 Cr.P.C. is one, which is more than a prima-facie case as exercised at the time of framing of charge but short of satisfaction to an extent that evidence if not rebutted would lead to conviction of the person sought to be added as accused. It is further argued that from the evidence on record it must be proved that the person can be tried together with the accused. The test is not that the evidence must lead such person to be convicted. Thus, it is argued that there is no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused. Thus, at the time of summoning, the evidence on record must not be enough to prove the guilt of accused persons rather there must be a ground to summon them to be tried along with the accused persons.
It is further submitted that more evidence of fact is yet to be produced in the trial court. The trial court shall scrutinize total evidence before it and only then the guilt of summoned persons would be decided by the court finally. Learned counsel for the opposite party no. 2 ends his argument with the version that the trial court has rightly exercised its power on the basis of deposition of the witnesses before it which were in the form of evidence to the effect that the appellants may have committed the offence in question.
It is admitted fact that any person, who is not named in the FIR or a person, though, is named in the FIR but not chargesheeted or any person, who is neither named in the FIR nor chargesheeted or any person who has been discharged, can be summoned under Section 319 Cr.P.C. For this purpose, only examination-in-chief of the witnesses is enough. Such a person under Section 319 Cr.P.C. can be summoned at any time after the trial is commenced and judgement has not been pronounced.
If we go through the judgement supplied by learned counsel for the appellants Brijendra Singh & others Vs. State of Rajasthan, 2017 LawSuit(SC)484 wherein the judgement Hardeep Singh (supra) has also been explained, in Hardeep Singh's case it was held that the word 'evidence' has to be understood in its wider sense both at the stage of trial and even at the stage of inquiry.
The court in Brijendra Singh (supra) further opined that 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. Only where strong and cogent evidence occurs against a person, from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or cavalier manner. The evidence must be stronger than mere probability of his complicity.
The Apex Court explained the word 'evidence' under Section 319 Cr.P.C. as the material brought before the court during trial. The material/evidence collected by Investigating Officer at the stage of inquiry can be utilized for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C.
If we go through the facts of the present case, it is true that as per the version of the FIR, the appellants are said to have visited the house of first informant in the noon and in the statement of the first informant and her brother-in-law as PW 1 and PW 2 in the court it has come that three appellants except appellant - Monu had come to the house of first informant at 8-8.30 p.m. on 01.09.2022 and took Manoj Kumar with them saying that he was not picking up the mobile of Monu @ Shivendra, so Monu was calling him. All the three persons took the deceased along with them. But if we go through the statements of these two persons under Section 161 Cr.P.C. in that statement of the first informant it has come that all the four appellants had come to the house of the deceased in the night of 01.09.2022 and took him with them to have conversation regarding plot. Monu was insisting her husband to execute sale deed of his plot in favour of Monu and was giving threat to pick him up from his house if he (Manoj) does not come on his call. While Mukesh Kumar, the brother of the deceased in his statement under Section 161 Cr.P.C. has stated that all the four appellants had come to the house of first informant. Both in the noon of 01.09.2022 and also in the evening of 01.09.2022 and took him with them to have conversation regarding plot which Monu @ Shivendra Singh wanted to get transferred in his name by executing a sale deed.
In the statements of PW 1 and PW 2 both it has clearly come that it was neither J.P. @ Shivam nor Karu @ Subodh Sharma who committed murder of Manoj Kumar nor the first informant ever disclosed these names to the police among the persons who committed murder of her husband. Thus, from the first information report to the statement of the first informant and her brother-in-law under Section 161 Cr.P.C. and statement of these two persons as PW 1 and PW 2 in the court, there is consistent version that the appellant Monu @ Shivendra was demanding Rs. 11 lacs from deceased - Manoj Kumar Jatav and in lieu of Rs. 11 lacs he was pursuing Manoj Kumar Jatav to execute the sale deed of his plot situated at G.T. Road in his favour. The threat of life was continuously being given by Monu to the deceased Manoj Kumar. All the rest three appellants are said to be with Monu @ Shivendra in fulfilling his demand of Rs. 11 lacs or to get executed the sale deed of the plot of Manoj Kumar Jatav in favour of Monu @ Shivendra.
It is true that there is some contradiction in the version of FIR and the statements of PW 1 and PW 2 on the point whether the appellants came to the house of the deceased in the noon or in the evening of 01.09.2022 but rest allegations against Monu @ Shivendra and other appellants are consistent from the FIR to the statements of Pooja, the first informant and Mukesh Kumar, brother of the deceased under Section 161 Cr.P.C. and the statements in the court.
In the opinion of the court, the FIR cannot be said to be an encyclopedia, the evidence on record to summon the appellants to face trial is found stronger than mere probability of their complicity and the decree of satisfaction is more than which is warranted at the time of framing charge. The trial court on the basis of evidence on record has rightly exercised its power under Section 319 Cr.P.C. and summoned the appellants to face trial under Sections 302, 201 IPC and 3(2)5 SC/ST Act.
The appeal is dismissed and the impugned order dated 14.03.2023 is confirmed.
Order Date :- 24.8.2023 gp