Naresh Bahadur And Anr. vs State Of U.P. And Anr.
2017 Latest Caselaw 3063 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 53
 

 
Case :- CRIMINAL REVISION No. - 3489 of 2011
 
Revisionist :- Naresh Bahadur And Anr.
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Revisionist :- S.M.G. Asghar,V.M. Zaidi
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Harsh Kumar,J.

Heard Sri V.M. Zaidi, learned counsel for the revisionists, learned A.G.A. for the State and perused the record.

The present criminal revision has been filed against the order dated 17.8.2011 passed by Additional Sessions Judge/Court No.10, Bijnor in S.T. No.889 of 2010 (State Vs. Babulu @ Lokendra & others), by which the revisionists have been summoned under Section 319 Cr.P.C. for trial together with the accused persons for the offence under Section 302 I.P.C.

The brief facts relating to the case are that the opposite party no.2 lodged an F.I.R. on 22.5.2008 with the contention that on 21.5.2008 at 08:00 p.m. accused Bablu and Hemraj had a dispute with her husband Negi Saran whereafter Hemraj and Bablu called Daroga Ji Naresh Bahadur and Sipahi Rishi Pal from Chauki Tajpur at her home, who took away her husband to the Police Chauki and when she approached the Police Chauki along with her Jeth Virendra Singh and one Satish Kumar and other persons of her neighbourhood Daroga Ji and policemen were beating her husband with dandas and when they were asked to leave her husband, they abused them asking to run away and thereafter at about 10:00 p.m. above policemen as well as Hemraj and others dropped her husband at her home who was found dead. After investigation charge-sheet was submitted against Hemraj and Bablu, who were being tried in S.T. No.889 of 2010 for the offences under Sections 306 & 504 I.P.C. During trial statement of first informant, the wife of deceased was recorded after which prosecution moved an application 20B for summoning the revisionists for trial under Section 302 I.P.C. with co-accused persons. The trial court after hearing, has passed the impugned order of summoning the revisionists.

Learned counsel for the revisionists contends that the impugned order of summoning the revisionists for trial under Section 302 I.P.C. is wrong on facts and law; that from the statement of P.W.-1 the first informant, it may not be contended that there is sufficient evidence on record for trial of the revisionists for the offence under Section 302 I.P.C.; that it was proved from the evidence on record that death of deceased was caused due to beating by Hemraj and Bablu, who have been charge-sheeted; that in the case of Hardeep Singh Vs. State of Punjab, AIR 2014 (SC) 1400, the Apex Court has held that there must be more than prima facie evidence to show that there is sufficient material to record the conviction of the proposed accused; that in the circumstances the impugned order is liable to be set-aside.

Per contra, learned A.G.A. supported the impugned order and contended that there is more than sufficient evidence on record to record conviction of revisionists who are the real culprits and there was sufficient cause to exercise the powers under Section 319 Cr.P.C. to summon the real culprits, who were not charge-sheeted, taking undue advance of their being police personnel.

Upon hearing learned counsel for the parties and perusal of record, I find that as per the averments made in the F.I.R. lodged by opposite party no.2, the wife of deceased, there is no whisper of any mar-pit of her husband by charge-sheeted accused Hemraj and Bablu, and the only contention made in the F.I.R. is that after a dispute with Hemraj and Bablu they called Daroga Ji Naresh Bahadur and Sipahi Rishi Pal at her house, who took away her husband to the Police Chauki and when she accompanied with her Jeth and neighbours reached the Police Chauki, Daroga Ji and policemen mentioned above were beating her husband with dandas and turned down their request for leaving him and subsequently dropped her husband at her home who was found to be dead. It is surprising that despite there being no whisper in the F.I.R. about beating the deceased by Hemraj and Bablu, the charge-sheet has been submitted only against Hemraj and Bablu and despite specific allegations of the beating of deceased by revisionists Daroga Naresh Bahadur and Sipahi Rishi Pal were exonerated. It is also surprising that despite there being no evidence of any suicide by the deceased or any abatement by Hemraj and Babloo to the deceased instigating him to commit suicide by the deceased and the I.O. appears to have acted wrongly and dishonestly in taking absolutely new and third case in filing the charge-sheet against Hemraj and Babloo under sections 306 & 504 I.P.C. It is clear from the evidence on record that the I.O. has wrongly filed charge-sheet sheltering and exonerating the police personnel. In her statement on oath before the trial court, the first informant has reiterated the averments made in F.I.R. and in her cross examination she has specifically stated that on Police Chauki mar-pit was being done with her husband by the policemen Daroga Naresh Bahadur and Sipahi Rishi Pal.

Learned counsel for the revisionists has placed reliance on the concluding part of cross examination of first informant wherein she has stated that " ;s dguk xyr gS fd esjs ifr dk dksbZ >xMk eqyfteku ls u gqvk gksA fQj dgk fd dqN Hkh >xMk ugha gqvk FkkA ;s ckr lgh gS fd eqyfteku us esjs ifr ds lkFk pkSdh ij dksbZ ekjihV ugha dh FkhA ;s ckr lgh gS fd eSaus ?kVuk dh fjiksVZ xkao okyksa ds dgus ij fy[kk;h FkhA "

I do not find any force in the argument so advanced by learned counsel for the revisionists and undisputedly the above suggestion has been put before the witness by the existing accused Hemraj and Bablu and she had admitted that they did not commit any mar-pit with her husband at the Police Chauki as in just preceding lines she has stated that "iqfyl okys pkSdh ij esjs ifr dks ihV jgs Fks vkSj xkao esa esjs ifr dk >xMk gks x;k FkkA ". It is settled principle of law that the statement of a witness is to be considered as a whole and not in pieces.

In view of above evidence on record, learned trial court after detailed discussions over the material on record has come to the conclusion that ^^izFke n`"V;k ;g Li"V gksrk gS fd i=koyh ij izLrqr fd;s x;s lk{; ds vk/kkj ij mijksDr O;fDr;ksa ds fo:) ekeys esa nks"k fl) dk vkns'k ikfjr fd;s tkus dh lEHkkouk;sa gSaA**

In view of the law laid down by Apex court in the case of Sarabjeet Vs. State of Punjab, 2009 (66) ACC 32 and in the case of Hardeep Singh Vs. State of Punjab (supra) "if the Court finds the evidence, if in-controverted, is sufficient to record conviction." The exercise of powers under Section 319 Cr.P.C. is fully justified as from the evidence on record it appears that the revisionists, not being the charge-sheeted accused, (though named in F.I.R.) have committed the offence under Section 302 I.P.C. and could be tried together with charge-sheeted accused.

In view of the discussions made above, I find that learned counsel for the revisionists has failed to show any illegality, irregularity, impropriety or incorrectness in the impugned order and there is no sufficient ground for interfering with or for setting it aside the impugned order. The revision has got no force and is liable to be dismissed and impugned order is liable to be confirmed.

The revision is dismissed and impugned order is confirmed, accordingly.

Interim order, if any, stands vacated.

Let a copy of this order be sent to court below for expeditious disposal of old sessions trial in accordance with law.

Order Date :- 8.8.2017

Kpy