Vidyawati vs State Of U.P. And 4 Others
2017 Latest Caselaw 8158 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                        Reserved
 
										     A F R
 
Case :- CRIMINAL REVISION No. - 1807 of 2014
 
Revisionist :- Vidyawati
 
Opposite Party :- State Of U.P. And 4 Others
 
Counsel for Revisionist :- Ravindra Prak. Srivastava
 
Counsel for Opposite Party :- Govt. Advocate,Ganesh Kumar Verma
 

 
Hon'ble Ravindra Nath Kakkar,J.

This criminal revision has been preferred against judgment and order dated 2.5.2014 passed by Additional Sessions Judge, Court No. 6, Basti in Sessions Trial No. 150 of 2010 (State Vs. Vikarma in Case Crime No. 210 of 2010, under sections 307, 436 IPC whereby learned court rejected the application of the revisionist under section 319 Cr.P.C.

It is contended on behalf of the learned counsel for the revisionist that the finding recorded by the trial court is erroneous and not sustainable in the eye of law. Further contended that the witnesses produced in the court below alleging involvement of opposite party nos. 2 to 5 have been ignored and further there is corroboration and complicity in commission of crime by O.P. No. 2 to 5 in the statements collected under section 161 Cr.P.C. in investigation. Further contended that the impugned order is passed without following the mandatory provision of the criminal procedure and the guidelines issued by the Hon'ble Apex Court in Hardeep Singh and others Vs. State of Punjab and others 2014 Law Suit (SC) 22.

From the evidence tendered before the trial court, it is evident that respondent nos. 2 to 5 are put the fire in the residential 'Madaha' of the complainant and tried to murder the informant and his family members who were sleeping in residential 'Madaha'. It is next contended that the civil suit between the parties are pending since 2010 but at the time of the incident no civil suit was pending between the parties. So, the finding recorded by the court below is against the weight of evidence.

Per contra learned counsel for opposite party submits that the revision is not maintainable as it has been filed by Vidyawati, who is witness of the case and not the informer and further informant Sukhraji died on 31.06.2013 and this fact has been specifically concealed. Further contended that the informant and the witnesses have stated in their evidence that they are not the eye witnesses and it is not ascertained as to which of the person opened the fire on the 'Madaha' and further contended that the Investigating Officer after completing the proper investigation filed charge sheet against the accused Vikrama and deleted the name of respondent nos. 2 to 5. The application under section 319 Cr.P.C. for summoning the opposite party nos. 2 to 5 is filed on malafide intention. Learned trial court has passed the order dated 2.5.2014 wherein the application of the revisionist under section 319 Cr.P.C. has been rejected and lastly contended that at the time of incident opposite party nos. 2 to 5 were not present at the place of occurrence as they have gone to Delhi for the purpose of their livelyhood. So argued, this revision has no merit and therefore, liable to be dismissed.

In the light of the contentions as raised by both the parties, I have perused the record.

Before proceeding with the subject, I would like to refer relevant provision of the guideline as laid down by Hon'ble Supreme Court in Hardeep Singh (Supra) under section 319 Cr.P.C.:

"319 Cr.P.C. - Power to proceed against other persons appearing to be guilty of offence.-

(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.

The Hon'ble Apex Court interpreted the word evidence used in section 319 (1) Cr.P.C. and held that "apart from the evidence recorded during trial, any material that has been received by the Court after cognizance is taken and before the trial commences, can be utilized only for corroboration and to support the evidence recorded by the Court to invoke power under section 319 Cr.P.C. The 'evidence' is thus, limited to the evidence recorded during trial."

Hon'ble Supreme Court observed that section 319 Cr.P.C. significantly uses two expressions that have to be taken note (I) inquiry and (ii) Trial as the trial commences after framing of charge, an inquiry can only be understood to be a pre trial inquiry. Inquiries under sections 200, 201, 202 and 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 inquiries can be used for corroboration of the evidence recorded in the Court after the trial commences for 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. Hon'ble Apex Court further held that in view of the above position the word 'evidence' in section 319 Cr.P.C. has been put broadly understood and not literally i.e. as evidence brought during the trial."

So far as the nature of the satisfaction require to invoke the power under section 319 Cr.P.C. to arraign an accused. The Hon'ble Apex Court held that though section 319 (4) (b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequently accused is on account of the fact that the trial may have already commenced against original accused, and it is in the course of such trial that materials are disclosed against the newly summoned accused, Fresh summoning of an accused will result in delay of the trial. Therefore, the degree of satisfaction for summoning the accused (original and subsequent) has to be different. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or 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.

It is pertinent to mention the power under section 319 Cr.P.C. can be exercised only on the basis of the evidence adduced before the court during trial. Further it is trite that the statements recorded under section 161 Cr.P.C. during the investigation are not the evidence, such statements can be used at the trial only for contradiction or omission when the witness is examined in the Court. It is also trite that power under section 319 Cr.P.C., the court can add a new accused only on the basis of evidence adduced before it and not on the basis of the material available in the charge sheet or the case diary. The material collected at the stage of investigation can at best be use for a limited purpose as provided under section 157 of the Evidence Act i.e. for the corroboration or to contradict the statements of the witnesses recorded before the court.

On the basis of touch stone of the above said legal preposition, I would like to deal with the subject pending before me. From the perusal of the record it is establish that opposite party nos. 2 to 5 are named in the FIR along with the accused Vikrama and after investigation charge sheet has been submitted only against the accused Vikrama. The name of the opposite party Nos. 2 to 5 has been exonerated during investigation.

Perusal of the record further shows that during investigation Smt. Sukhraji-complainant, Smt. Vidyawati and witness Abhay Kumar Shukla have supported the presence, involvement and complicity in the commission of crime by opposite party Nos. 2 to 5. Further, during trial P.W. 1 Smt. Sukhraji and P.W. 2 Smt. Vidyawati have supported the FIR naming opposite party Nos. 2 to 5 involved in the commission of the crime. Further it is relevant to mention that all the accused persons and complainant are related to each other and are closed relatives of the same family. It also transpires that there is also property dispute between them and the subject matter is residential 'Madaha' and the land in which it situate is also in dispute between them. A civil suit is pending between the parties, but the important fact is civil suit filed after two months of the present incident. The incident according to FIR is of 9.3.2010 and the civil suit was filed on 19.5.2010 i.e. after about approximately two months.

As already observed that at the time of disposal of application under section 319 Cr.P.C. the court has to be prima facie satisfied about the presence, involvement and complicity in the commission of the offence. At this stage, the material collected during investigation under section 161 Cr.P.C. are to be considered for only with regard to section 157 of Indian Evidence Act i.e. for corroboration and contradiction. At this point of time, I would like to mention that the complainant has specifically stated in her application that the Investigating Officer was not fair in exonerating the opposite party nos. 2 to 5 and filed charge sheet against only accused Vikrama and further to add that at the stage of summoning the accused under section 319 Cr.P.C. it is only to prima facie satisfaction of the trial Court keeping the intrinsic quality and initial probability of the evidence which have been tendered before the trial court for arraigning the proposed accused. At this stage, it is not required to evaluate the evidence for the purpose of conviction and acquittal.

To sum up the discussion, I find that the proposed accused opposite party nos 2 to 5 are named in the FIR, their presence, involvement and complicity in commission of crime putting the residential 'Madaha' on fire, four witnesses have been produced before the trial court, they have supported the FIR version and the finding of the court below that there is partition suit pending between the parties but this point has not been taken into consideration that incident took place before filing of civil suit. Even the complainant and informant along with one independent witness has gone in support of the prosecution case under section 161 Cr.P.C.

So far as the last contention with regard to the maintainability of this revision is concerned, it is admitted fact that Smt. Sukhraji had died on 31.6.2013 during the trial and Smt. Vidyawati filed this revision but perusal of the record, I find that the names of Sukhraji and Vidyawati is mentioned in the first column of the FIR as an informant of the incident. So there is no force in the contention that revision filed by Vidyawati is not maintainable.

In view of the aforesaid discussions and reasons the impugned order 2.5.2014 is set aside and the revision is allowed. The case is remanded back to the learned trial Judge concerned to pass afresh order In the light of the observation made above.

Office is directed to send a copy of this order to the court concerned for necessary information and compliance.

Dt:/ 20.12.2017

RPD