Allahabad High Court
Smt. Bhagwati And Others vs State Of U.P. And Anr. on 12 September, 2017
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 53
Case :- CRIMINAL REVISION No. - 5269 of 2011
Revisionist :- Smt. Bhagwati And Others
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Devesh Kumar,Rupak Chaubey
Counsel for Opposite Party :- Govt. Advocate,M.K. Mishra,T.K. Mishra
Hon'ble Harsh Kumar,J.
The revision has been filed against the order dated 16.11.2011 passed by Special Judge (D.A.A.), Jhansi in Special Case No.165 of 2007 (Sawitri Vs. Ram Prakash Yadav & Others) under Sections 395, 342, 323, 504 and 506 I.P.C. allowing the application under Section 319 Cr.P.C. moved by opposite party no.2 and summoning the revisionists for the offences under Sections 452, 323, 504 and 506 I.P.C.
Heard Shri Devesh Kumar, learned counsel for the revisionists, Shri Mahesh Kumar Tripathi, Advocate for opposite party no.2, learned A.G.A. and perused the record.
Learned counsel for the revisionists contends that the opposite party no.2 filed a false complaint against the revisionists as well as Ram Prakash Yadav upon which after recording the statements of complainant and witnesses under Sections 200 and 202 Cr.P.C. the Special Judge vide order dated 11.3.2008 issued process against Ram Prakash for the offences under Sections 395, 342, 323, 504 and 506 I.P.C. and rejected the complaint under the provisions of Section 203 Cr.P.C. against the rest seven accused who are revisionists; that during trial after the statement of the complainant on oath before the Court the opposite party no.2 moved an application under Section 319 Cr.P.C. for summoning the other accused persons named in complaint and the learned Special Judge has acted wrongly and illegally in allowing the application and summoning of the revisionists for the offences under Sections 452, 323, 504 and 506 I.P.C; that the learned Special Judge failed to consider that no specific role has been assigned to any of the revisionists and only general allegations have been made against all of them and the active role has been assigned only to accused Ram Prakash; that the revision is liable to be allowed and the impugned order for summoning the revisionists is liable to be set aside.
Per contra learned A.G.A. and learned counsel for opposite party no.2 supported the impugned order and the learned counsel for opposite party no.2 contended that there was sufficient evidence on record to show that all the eight accused persons, the revisionists as well as Ram Prakash actively participated in the crime in question and caused multiple injuries to opposite party no2; that Special Judge acted wrongly in rejecting the complaint against revisionists under the provisions of Section 203 Cr.P.C; that opposite party no.2 and her witnesses have stated on oath in their statements during trial that all the accused persons actively participated in the incident in question and mere examination in chief is sufficient for being treated evidence for the purposes of Section 319 Cr.P.C.
Upon hearing counsel for the parties and perusal of record, I find that in the complaint it has been stated that on 15.11.2007 at 10.00 a.m. all the eight accused persons out of which Ram Prakash and his sons Anil and Sonu having dandas in their hands started demolishing his toilet, entered her house and beating her with fists and dandas and Ram Prakash snatched away the Mangalsutra from her neck. After recording the statement of complainant and her witnesses under Sections 200 and 202 Cr.P.C. the learned Special Judge found no prima facie evidence against the persons except Ram Prakash and rejected the complaint as against the revisionists vide order dated 11.3.2004 at the time of issuing process against Ram Prakash which order was not challlenged by opposite party no.2. During trial the statement of complainant on oath was recorded by Special Judge on 12.8.2009 in which she has repeated the averments made in complaint and same day moved an application under Section 319 Cr.P.C. The perusal of statement of complainant as P.W.-5 also shows that common and general allegations have been made against all the accused persons and only Ram Prakash and sons Anil and Sonu are said to be having dandas in their hands.
In view of the above material on record and considering that the complainant has sustained as many as five injuries, which may be caused by more than one person the Special Judge has summoned all the revisionists for the offences under Section 452, 323, 504 and 506 I.P.C. The injury report is not on record of the revision and undisputedly the injuries are not said to be grievous in nature.
It is settled principle of law that at the time of summoning accused for the offences under Section 319 Cr.P.C. there must be more than prima facie evidence, upon which there may be likelihood of conviction of the summoned accused and mere on the allegations made, in absence of any cogent evidence, the additional accused may not be summoned. In the case of Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92, it has been held by the Apex Court that there must be some prima-facie cogent evidence which if remains un-controverted may result in conviction. The material on record shows that there are no allegations against the revisionist nos.1, 2, 3, 4 and 5 except that they are also said to have entered the house of complainant and though are not said to be armed with any weapon allegedly beaten the opposite party no.2. In her statement on oath before the trial court the opposite party no.2 has not made any whisper that Anil and Sonu beaten her with dandas in their hands and in absence of any such statement I find that the evidence on record is not prima facie so strong which if remains uncontroverted may be sufficient for conviction of the revisionists and there is no likelihood of the conviction of revisionists on above statement of P.W.- 5, opposite party no.2. As far as injuries are concerned it may not be contended that five injuries may not be caused by male person to a female person the opposite party no.2.
In view of the discussions made above, I have come to the conclusion that the learned Special Judge acted wrongly in allowing application under Section 319 Cr.P.C. and summoning the revisionists for trial together with co-accused, for offences under Sections 452, 323, 504 and 506 I.P.C. on a part of same evidence, which evidence was not found prima facie sufficient evidence to issue process against them under provisions of Section 204 Cr.P.C. and on which evidence, complaint was rejected against them under Section 203 Cr.P.C. The impugned order is liable to be set aside and the application under Section 319 Cr.P.C. was liable to be rejected.
The revision is allowed. The impugned order is set aside. The application under Section 319 Cr.P.C. of the complainant, opposite party no.2 stands rejected.
Interim order, if any, stands vacated.
Let a copy of order be sent to Court below for ascertaining expeditious disposal of trial, in accordance with law.
Order Date :- 12.9.2017
VS
