Ram Charan And 4 Others vs State Of U.P. And Anr.
2014 Latest Caselaw 4112 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 14
 

 
Case :- CRIMINAL REVISION No. - 2091 of 2014
 

 
Revisionist :- Ram Charan And 4 Others
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Vijay Singh Sengar
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

This revision has been preferred against the judgment and order dated 25.04.2014 passed by the learned Sessions Judge, Auraiya in Sessions Trial No. 58 of 2013 arising out of Case Crime No. 499 of 2012, under sections 302, 201 IPC, whereby the accused-revisionists Ram Charan, Smt Sukh Devi, Shailendra and Smt Pushpa, have been summoned under section 319 Cr.P.C.

Brief facts of the case are that the complainant Vansh Lal filed a written report that his daughter Rakhi Devi was married to Jitendra Kumar eleven years ago and she had two children, but Rakhi's husband used to torture her and used to say that she belongs to very poor family. Rakhi was frustrated due to the behaviour of her husband. On 25/26.09.2012 Rakhi died due to her husband's torture or she has been murdered by her husband along with his companion. An FIR was lodged against Jitendra Kumar.

On 30.09.2012 at about 8.10 a.m. the dead body of the deceased was recovered in a bag. The postmortem was conducted on the same day at 3.15 p.m. According to the post mortem report Rakhi died due to the injuries sustained on her head before her death. A viscera was preserved. Jitendra Kumar was charge sheeted under section 302, 201 IPC. The prosecution examined PW-1, Vansh Lal, PW-2 Hani alias Himalaya, PW-3 Girish Chandra.

In 2014 (1) JIC 539 (SC) Hardeep Singh vs. State of Punjab, it has been laid down that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193, Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319, Cr.P.C., significantly use two expressions that has to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under section 398, Cr.P.C. are species of the inquiry contemplated by Section 319, Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the Court after the trial commences, for the exercise of power under section 319, Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the charge sheet. In view of the above position the word 'evidence' in Section 319, Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. It has also been said that the Court need not wait for the cross-examination of the witnesses.

In the aforesaid law laid down by the Hon'ble Apex Court, it has been stated that : A person not named in the FIR or a person though named in the FIR but has not been charge sheeted or a person who has been discharged can be summoned under Section 319, Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398, Cr.P.C. has to be complied with before he can be summoned afresh.

The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the Court to give full effect to the words used by the Legislature so as to encompass any situation which the Court may have to tackle while proceeding to try and offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by the prosecution.

Perusal of the statement of PW-1, Vansh Lal shows that he has named all the revisionists and has said that they are involved in the offence and Rakhi has sustained injuries on her head. Although this witness has given hearsay evidence. Hani alias Himalaya is a child witness, whose veracity was tested by the Court before his statement was recorded. He has specifically said that Ram Charan had assaulted his mother by means of danda on the head. His uncle Shailendra had assaulted with fists and kicks. His father has also assaulted the deceased with fists and kicks. Smt. Sukh Devi, his grand-mother had caught hold her mouth and his aunty (Chachi) had caught hold of his mother's hair, meaning thereby that all the revisionists and Jitendra had informed an unlawful assembly and had assaulted the deceased and had killed her.

The postmortem report also shows that the deceased had traumatic contusion on the left side of head and contusion on the front of right shoulder. Although the viscera of the deceased was preserved, but viscera report has not been filed. There is no necessity to wait for the report. There is sufficient evidence on record to connect the accused persons with the crime.

Counsel for the revisionists has placed reliance upon the judgment reported in 2009(3) SCC 329 Brindaban Das and others vs. State of West Bengal, in which it has been held that if there is no direct evidence, the complicity of the appellants in the incident would be doubtful. This ruling does not help the revisionists because in the present case, there is direct evidence of assault by all the revisionists coupled with Jitendra Kumar.

Learned counsel for the revisionists has also placed reliance upon the judgment reported in 2014 (5) SCC 568, Babubhai Bhimabhai Bokhiria and Anothers vs. State of Gujarat and others, in which the Hon'ble Apex Court has said that: The maxim "judex damnatur cum nocens absolvitur" which means that a Judge is condemned when guilty person escapes punishment.

A glance at these provisions would suggest that during the trial it has to appear from the evidence that a person not being an accused has committed any offence for which such person could be tried together with the accused who are also being tried. The key words in this Section are "it appears from the evidence"..."any person"..."has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court. This is apart from the fact that such person against whom such discretion is used, should be a person who could be tried together with the accused against whom the trial is already going on. This Court has, time and again, declared that the discretion under Section 319 Cr.P.C. has to be exercised very sparingly and with caution and only when the concerned court is satisfied that some offence has been committed by such person. This power has to be essentially exercised only on the basis of the evidence. It could, therefore, be used only after the legal evidence comes on record and from that evidence it appears that the concerned person has committed an offence. The words "it appears" are not to be read lightly. In that the court would have to be circumspect while exercising this power and would have to apply the caution which the language of the Section demands.

Power under section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where circumstances of the case so warrant. It is not to be exercised because the Magistrate of 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. Thus, 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. Thus, even a person who ought to have been added as an accused has erroneously been omitted or has deliberately been executed by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial.

Thus, on the basis of discussion made above, I find that there is no illegality, irregularity or impropriety in the order under revision and the revision is liable to be dismissed.

The revision is dismissed.

Order Date :- 7.8.2014

Sazia