Brijesh Kumar Tiwari vs State Of U.P. And Anr.
2016 Latest Caselaw 2457 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 13
 

 
Case :- CRIMINAL REVISION No. - 829 of 2013
 

 
Revisionist :- Brijesh Kumar Tiwari
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- Awadhesh Kumar Sharma,Indresh Chandra
 
Counsel for Opposite Party :- Govt. Advocate,Ajay Dubey
 
Hon'ble Abhai Kumar, J.

Heard learned counsel for the revisionist, learned A.G.A for the State and perused the records.

None is present on behalf of opposite party after the case was taken up in the revised list.

The facts of the case are as follows:-

An application under Section 319 of Cr.P.C was moved by the revisionist for summoning Rajesh Tiwari, as accused for facing the trial. The same was dismissed by the trial court, vide its order dated 29.10.2012, against which a revision was preferred before High Court bearing Criminal Revision No. 3749 of 2012, which was allowed by the order dated 30.1.2013, with a direction to the trial court to pass a fresh order under Section 319 Cr.P.C in accordance with law. In pursuance of the said order dated 30.01.20-13, the trial court, vide order dated 06.03.2013, summoned the accused Rajesh Tiwari under Sections 325/34 and 323/34 I.P.C.

The main contention of the learned counsel for the revisionist is with regard to summoning of the opposite party no. 2 under fewal and less gravity of I.P.C. Instant F.I.R was lodged against four persons including Rajesh Tiwari. After investigation, the charge-sheet was filed against three persons excluding Rajesh Tiwari under Sections 323, 325, 308, 452, 504, 506 I.P.C. Statement of P.Ws 1 & 2 were recorded by the trial court and after that application under Section 319 was moved by the revisionist.

The learned court considered the statements given by P.Ws. 1 & 2 and summoned the accused Rajesh Tiwari under Section 319 I.P.C. From the bare perusal, the role of the accused - applicant is same as that of others, who are being charge-sheeted in other sections also. Then how could trial court come to the conclusion that offence under Sections 325/34 and 323/34 I.P.C, is only made out. From the perusal of the F.I.R, it is clear that it was Rajesh Tiwari, who assaulted the injured and tried to hit at his head and while trying to escape the said injury, the injured was hit upon his face resulting serious injuries to him. P.W - 1 in his statement has very clearly stated that all the four accused were in the house of complainant armed with iron rod, iron pipe as well as danda in their hands. There is nothing in cross-examination of the witnesses which can be said to be inconsistent with the charges levelled against rest of the accused person. Similarly statement of P.W 2 is also supporting the fact a assault by opposite party - Ramesh Tiwari then how could the trial court reach to the conclusion that charges under Sections 325/34 and 323/34 I.P.C. are being made out.

Section 319 (I) of Cr.P.C reads as follows:-

?(1) Where, in the course of any inquiry into, or trial of, an offence, 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.?

From a bare reading of Section 319 Cr.P.C itself is clear that if it appears to the court from the evidence that any person has committed any offence, for which such person could be tried then he should be directed to appear before the Court and further proceedings should be taken up afresh, so far against that person is concerned. The main crux of the section is that when it appears to the Court from the evidence, the word 'appears' is the relevant factor in the case. No conclusive proof is requires and it may be easily inferred that prima-facie case should be there for summoning the accused to face the trial.

In the above prospective we see Section 308 of I.P.C, which is reproduced below :-

?308. Attempt to commit culpable homicide.?Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Illustration A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has com­mitted the offence defined in this section.?

The intention of the person committing the crime is prime requirement for any charges to be framed under Section 308 of I.P.C.

In this particular case P.W 1 ? Brijesh Kumar has categorically stated that accused persons were armed with iron rod, iron pole and danda and assaulted them. The P.W. 2 ? Ashok Narain Tiwari has also clearly stated in his statement that accused persons including Rajesh Tiwari having iron pipe in his hand, were assaulted his son Brijesh and Bhupendra Tiwari in the house of Bhupendra and when he tried to intervene then Rajesh hit him by iron pipe. His intention was to hit upon the head, but when he tried to prevent the assault then rod hit his nose. From the facts that intention of Rajesh Tiwari was to hit upon the head by iron pipe is itself clear that Rajesh Tiwari was armed with iron pipe and he was well within the knowledge that hitting by that iron pipe, he may cause culpable homicide not amounting to the murder in case would have caused injuries.

The learned trial court has failed to notice this fact and on the basis of injury, which was caused on the face of the injured, he summoned the accused only under Section 325 of I.P.C for that particular injury.

Similarly the contents of Section 452 of I.P.C, were also overlooked by the trial court while passing the the impugned order. Section 452 I.P.C reads as follows:-

Section 452 of The Indian Penal Code: -

?452. House-trespass after preparation for hurt, assault or wrong­ful restraint.?Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful re­straint, shall be punished with imprisonment of either descrip­tion for a term which may extend to seven years, and shall also be liable to fine.?

From the Section it is clear that whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful re­straint, it is a house trespass then he is tried under that Section. In this case also accused persons were prepared to assault having iron rod, iron pole as well as danda in their hands and they entered in the house of Bhupendra for the said purpose and thereby committing house trespass and also committed other offences by assaulting and inflicting serious injuries to the complainant's side. How can this fact be overlooked by learned judge, when it is stated by the witnesses, in so many words.

Since the Court below has failed to appreciate the evidences of P.W-1 - Brijesh Kumar Tiwari and P. W-2 - A.N. Tiwari, in its proper perspective, so it will be feasible that to direct the learned trial court to consider the matter afresh in light of the observations made herein above. The Court below shall pass a fresh order in accordance with law.

Having regard to the circumstances of the case, the impugned order dated 06.03.2013, passed by Additional Sessions Judge, Court No. 8, Allahabad, is set aside.

Present revision is allowed accordingly.

Order Date :- 11.05.2016.

Vinod.