Smt. Poonam vs State Of U.P. And 4 Others
2019 Latest Caselaw 5479 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 22.01.2019
 
Delivered on 08.07.2019
 

 
AFR
 

 
Court No.67                                        
 

 
Case:- CRIMINAL REVISION  No. 4113 of 2018.
 
Revisionist :- 		Ayodhya Prasad Umrao And Another.
 
Opposite Party:- 	State of U.P. And Another.
 
Counsel for the Revisionist:-    I.M. Khan 
 
Counsel for Opposite Party:-   G.A. 
 

 
Hon'ble Rahul Chaturvedi J. 
 
1.

Heard Shri I.M. Khan, learned counsel for the revisionists, Sri Birendra Singh, learned counsel for private opposite party, learned A.G.A. and perused the record.

2. The instant Criminal Revision is targeted against order dated 03.11.2018 passed by VII-Additional Session Judge, Fatehpur whereby while deciding application no. 12B under section 319 Cr.P.C. in four connected Session Trials i.e. S.T. Nos. 148/2014 under sections 396, 412 IPC, Police Station Bindki, District Fatehpur the accused applicants have been summoned by the court concerned.

3. Submissions made by learned counsel for the revisionists are that on the earlier occasion, a similar exercise was carried out by earlier Additional Session Judge, Court No. 8, Fatehpur vide order dated 08.02.2016 and said order was challenged before Coordinate Bench of this Court by means of Criminal Revision No. 1107/2016 (Jitendra Umrao Vs. State of U.P. and others). The aforesaid Bench of this Court by its judgment dated 09.08.2018 while allowing the aforesaid revision, set-aside the order dated 08.02.2016 and remitted the matter to the court concerned for fresh consideration in accordance with law, hence a subsequent order was passed on 03.11.2018 by the court below, which is under challenge by means of instant Criminal Revision.

4. Before coming to the merits of the case, it is imperative to mention bare skeleton facts of the case for better appreciation on the controversy involved.

5. On 02.08.2013 around 4.40 in the morning a F.I.R. was got registered by one Jitendra Umrao against unknown miscreants of the incident, alleged to have taken place during the intervening night of 01/02.08.2013, which was registered as Case Crime No. 232/2013 U/s 396 I.P.C., at Police Station Bindki District Fatehpur. As per the text of the F.I.R., on the fateful day, the informant along with his family members were sleeping at his residence whereas the informant's mother -Smt. Somwati, Bhabhi-Jyoti, wife of Abhimannyu were sleeping on the roof top. The father Ganga Prasad was sleeping in guest room and two brothers namely Bhupendra and Abhimannyu were sleeping in their respective rooms. Around 2.00-300 hours, in dead hours of night, some miscreants barged into the house, through wall, where they assaulted upon mother Smt. Somwati and Bhabhi Smt. Jyoti, inflicting several injuries on them. Thereafter, they intruded into the rooms of Ganga Prasad (father), brothers Abhimannyu and Bhupendra, assaulted and caused serious injuries to them also. Then they broke Almirah, from where looted the cash, other valuables and fled away from the site. The informant's Bhabhi- Smt. Jyoti narrated the entire incident to the informant therafter, which made the informant rush to the spot of occurrence where he found his father dead and his mother, bhabhi and both the brothers seriously injured. He further narrated in the FIR that while taking her mother to the hospital, she took her last breath en-route. Bhabhi Smt. Jyoti and both the brothers were taken to C.H.C. Bindki, Fatehpur where both the brothers were referred to Kanpur for better treatment. Thus, from the text of F.I.R. following features are abundantly clear:-

(a). The incident was of in the night hours.

(b) No body could identify the assailants.

(c). There was loot of cash and valuable ornaments.

(d). Two persons namely Ganga Prasad and his wife Smt. Somwati lost their lives in this transaction, whereas 3 persons namely Bhupendra, Abhimannyu as well as Smt. Jyoti have sustained serious injuries over their person.

6. Annexure Nos. 2 ad 3 of the revision are injury reports of Shri Bhupendra Umarao and Abhimannyu Umrao issued by Madhuraj Hospital, Kanpur which categorically reveals that both the injured persons were admitted in the hospital on 02.08.2013 at 6.00 in the morning by Sujeet (revisionist no.2) and as per the opinion of the doctor, the injuries sustained by the injured were grievous in nature. It is interesting to point out herein that both the injured persons were admitted by Sujeet (revisionist no.2), who is a non-accused but by means of the impugned order, he was also made accused along with his father Ayodhya Prasad Umrao.

7. After registeration of the case, the investigation in the matter started rolling and police recorded statements of informant Jitendra Umrao U/s 161 Cr.P.C., Smt. Jyoti wife of Abhimannyu (eye witness), Bhupendra Umrao (injured), Abhimannyu (the injured witness). On critical analysis of the statements of injured witnesses, it is abundantly clear that the informant who is not an eye witness of the incident, has reiterated the version of FIR. However, Smt. Jyoti (eye witness) has mentioned that 6-7 miscreants barged into the house and assaulted them by lathi-danda to her mother-in-law Smt. Somwati and to herself, thereafter they barged into the rooms of Ganga Prasad, Bhupendra and Abhimannyu and assaulted them by lathi-danda, looted cash, valuables and jewelries. Thereafter she informed the informant Jitendra Umrao about the incident. In her statement recorded under section 161 Cr.P.C. she has given vivid description of those miscreants that amongst them, one was aged about 40-45 years, another was slightly bulky and addressing one to another as Lachi @ Lachhi. She has identified all the miscreants in the electricity light and stated that none of the miscreants had covered their faces.

8. Similarly, Bhupendra Umrao (injured) has narrated the same story in his statement U/s 161 Cr.P.C. to the police with addition to it that there is certain misunderstanding between him and his wife Smt. Mamta and since then she is residing at her parent's place at Kanpur and the injured has raised his unfounded suspicion on Mamta that she might be involved in this incident. Except this, in his 161 Cr.P.C. statement, she too has not taken name of the present revisionists.

9. Yet another injured Abhimannyu has reiterated the version of his brother Bhupendra Umrao and has given vivid physical description of assailants. In his statement U/s 161 Cr.P.C. he further stated that the miscreants were talking in the language which is often used by "Kanjads" (caste and creed who are wanderers of abandoned places).

10. After thrashing all the material collected by the police during investigation, the police submitted charge sheet only against Prem Kumar and Sumerjeet U/s 396 I.P.C.

11. It is contended by the learned counsel for the opposite parties that the police has played a partisan approach in not recording the statements U/s 161 Cr.P.C. of the witnesses in appropriate manner by intentionally dropping the names of revisionists and co-accused, Mamta. Hence, opposite party no.2 filed a complaint case bearing Complaint Case No. 727/2014 before Chief Judicial Magistrate, Fatehpur for summoning the present revisionists. The statements under sections 200 and 202 Cr.P.C. were recorded and the said complaint is pending till date without any summoning order and application U/s 210 Cr.P.C. was moved for clubbing the same which is pending undecided.

12. After committal of the case, the trial in the matter begun and testimonies of PW-1, PW-2 and PW-3 were recorded. It is pointed out by the counsel for the revisionists that after recording the aforesaid testimonies, the texture of the case got changed. It is relevant to mentin here that the non-accused Ayodhya Prasad Umrao and his son Sujeet Kumar are close family members of the deceased, rather siblings.

13. This court got an opportunity to go through the testimonies of all the three witnesses (Annexure no. 8 to the affidavit) including the testimony of PW-1, Jitendra Umrao, who is not an eye witness, who in his examination-in-chief, has admitted that he lodged FIR against unknown persons but thereafter the injured brothers disclosed the name of assailants as Prem Kumar and Samarjeet (charge sheeted accused) and Raja, Surendra, Munesh Lachi @ Lachhi, Sujeet and Ayodhya Prasad as well as Mamta as accused. Ayodhya Prasad Umrao is the real uncle of informant and Sujeet Kumar is the cousin. In the cross examination, PW-1 has stated that he has taken name of the present revisionists as well as Mamta but they have not been made accused in the charge sheet. Thereafter PW-2, Bhupendra Umrao in his examination-in-chief has stated that revisionist no.1 was armed with a revolver, revisionist no.2 was having gun in his hand, Mamta was armed with knife, Prem Kumar was armed Kanta, whereas Samarjeet, Raja, Surendra, Munesh, Lachi @ Lachhi were carrying lathi-danda and iron rods and all of them jointly assaulted upon the victims by their respective weapons.

14. Taking the arguments to be true on its face value of the applicants and comparing the injury report of Bhupendra Umrao, who was admitted in the hospital by none other than Sujeet Kumar (revisionist no.2), there are 3 traumatic swelling on his person, the prosecution story completely belies the allegations and the role attributed to the accused pesons.

15. Coming to examination-in-chief of PW-3 Abhimannyu Umrao, he too, in his testimony named the accused persons and it is interesting to point out here that his 161 Cr.P.C. statement was recorded on 21.08. 2013 in CD Parcha No. 19 wherein he has raised certain amount of suspicion on his wife Smt. Mamta but after almost five months, his second statement was recorded in CD Parcha No. 48, wherein he inserted the names of present revisionists.

16. It is contended by the learned counsel for the revisionists that not even a single item of the alleged looted articles was recovered either from the possession of revisionists or on their pointing out.

17. In nut-shell, the fact of the case summaries as follows:

(a) The revisionists are not named in the FIR.

(b) During 161 Cr.P.C. statements, none of the injured persons or eye witnesses have taken the names of revisionists or attributed their role in the commission of the offence. Ms. Jyoti has categorically given vivid physical descriptions of the assailants and has clearly mentioned that none of the assailants covered their faces at the time of the alleged incident.

(c) Under such circumstance, it is implausible that she would not identify the revisionists, who are her paternal uncle-in-law (Chachia Sasur) and younger brother-in-law (Devar).

18. If all the testimonies are taken to be true, they are named in the testimonies with their respective weapons, but the prosecution has failed to attribute any specific role to them in commission of the offence. There is no recovery of any incriminating article either from the possession or on their pointing out.

19. On these above mentioned factual parameters, this court has opportunity to examine the legal veracity and validity of the impugned order dated 03.11.2018.

LEGAL DISCUSSIONS:

It remains trite that the provisions contained in 319 Cr.P.C. are to achieve the objective that the real culprit should not get away unpunished. The prosecution U/s 319 Cr.P.C. is springs out of doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C.

20. By virtue of the aforesaid provision, the court is empowered to proceed against any person who is not shown as an accused, if it appears from the evidence that such person/s have/s committed any offence for which he could be tried with other co-accused persons. The court concerned is duty-bound to identify the real culprit and punish him. Even under the circumstance when the investigating agency has not arrayed that person as accused, the court has no power to meet to such an exceptional eventuality. The million dollars question remains that under what circumstance and in what stage of trial the degree of satisfaction is to be exercised under section 319 Cr.P.C. The law courts are the sole repository of justice and duty is casted upon them to uphold the rule of law.

21. Thus, it would be inappropriate to deny such powers with the court in our criminal judicial system, which is not uncommon that real and unscrupulous accused at time, get away by manipulating the investigating and/or prosecuting agency.

22. The Hon'ble Apex Court in its recent celebrated pronouncement in the case of Haradeep Singh Vs. State of Punjab (2014) 3 SCC 92 has laid down broad principles of law, which is as follows:

"95. In Suresh Vs. State of Maharashtra, AIR 2001 SC 1375, this Court after taking note of the earlier judgments in Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijjaya, AIR 1990 SC 1962 and State of Maharashtra Vs. Priya Sharan Maharaj, AIR 1997 SC 2041, held as under:

"9... at the stage of Sections 227 and 228 the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

105. In Sohan Lal and Ors. Vs. State of Rajasthan, (1990) 4 SCC 580, a two-Judge Bench of this Court held that once an accused has been discharged, the procedure for enquiry envisaged under Section 398 Cr.P.C. cannot be circumvented by prescribing to procedure under Section 319 Cr.P.C.

106. In Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi & Ors. AIR 1983 SC 67, this Court held that if the prosecution can at any stage produce evidence which satisfies the court that those who have not been arraigned as accused or against whom proceedings have been quashed, have also committed the offence, the Court can take cognizance against them U/s 319 Cr.P.C. and try them along with the other accused.

23. Thus the provisions contained in Section 319 Cr.P.C. sanctions summoning of any person on the basis of any relevant evidence as available on record. However, being a discretionary power and an extraordinary one, it has to be exercised sparingly and only when cogent evidence is available. The prime facie opinion which is to be formed for exercise of this power requires stronger evidence then mere probability of complicity of a person. The test to be applied is the one which is more than a prima facie case as examined at the time of framing charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused.

23. In the recent judgment of Hon'ble Apex Court in the case of Periyasami and others Vs. S. Nallasamy (Criminal Appeal No. 456 of 2019) decided on 14th March, 2019), which is akin to facts of the present case and the Hon'ble Apex Court opined that in the first information report or in the statements recorded under Section 161 Cr.P.C., the names of the revisionists or any other description have not been given so as to identify them. The allegations in the FIR are vague and can be used any time to include any person in the absence of description in the First Information Report to identify such person. There is no assertion in respect of the villages to which the additional accused persons belong. Therefore, there is no strong or cogent evidence to make the revisionists stand the trial for the offences under Section 147, 448, 294(b) and 506 of IPC in view of the judgment in Hardeep Singh Case (supra). The additional accused cannot be summoned under Section 319 Cr.P.C., in casual and cavalier manner in the absence of strong and cogent evidence. Under Section 319 Cr.P.C. additional accused can be summoned only if there is more than prima facie case, as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused.

24. The High Court had set-aside the order passed by the learned Magistrate only on the basis of the statements of some of the witnesses examined by the Complainant. Mere disclosing the names of the revisionists cannot be said to be strong and cogent evidence to make them to stand trial for the offence under Section 319 Cr.P.C., especially when the Complainant is a husband and has initiated criminal proceedings against family of his in-laws and when their names or other identity were not disclosed at the first opportunity.

24. In the present case, on the above lines, when Ms. Jyoti, the eye witness, in her statement recorded under section 161 Cr.P.C. has clearly described the physical appearance of the miscreants by referring their age and height, clearly mentioning therein that none of the assailants have covered their faces but, there too, she was unable to identify Ayodhya Prasad Umrao, her own Chachia Sasur and Surjeet Kumar, her Devar. Not only this, as mentioned above, Sujeet Kumar/revisionist no.2 has taken the injured persons to Madhuraj Hospital, Kanpur and got them admitted, coupled with the facts that after five months delay a "wisdom" was drawn upon the injured witnesses regarding the involvement of the present revisionists in commission of the offence. There was no reported previous animosity between the family and thereafter at the belated stage during the trial, swelling the names, number of assailants from 2 to 8, assigning the weapons to them and attributing general role of assault by all of them, is completely negated by the injury reports of injured persons, therefore, under such circumstances summoning those revisionists as accused persons, appears to be unjust and improper.

25. The learned counsel for the revisionists has further relied upon yet another judgment of Hon'ble Apex Court in the case of Labhuji Amratji Thakor & others Vs. State of Gujarat and another (Criminal Appeal No. 1349/2018) decided on 13.11.2018, wherein it has been underlined that the court has to consider the substance of the evidence which has come before it and as lay down by the Constitutional Bench in Hardeep Singh's case, has to apply the test i.e. "more than prima facie as exercised at the time of framing of the charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction."

26. In this case too, wherein the evidence recorded by the police, carrying number of pit holes and submitting charge sheet only against two persons, the prosecution at the stage of trial, wants to cover-up these short falls by their respective testimonies, assigning the weapons and general roles to all of them, which is in stark contrast with the injury reports of injured persons.

27. Learned counsel the revisionists further relied upon another judgment of Hon'ble Apex Court inre: Brijendra Singh and others Vs. State of Rajasthan (2017) Vol.7 SCC 706 in which Hon'ble Apex Court opined that "the ''evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the I.O. during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether ''much stronger evidence than mere possibility of their (i.e. revisionists) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order )as the revisionists were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the revision petition filed by the revisionists".

28. The Trial Court has miserably failed to take into account that evidence collected during investigation by the investigating agency left untouched and brushed aside by learned Trial Judge while deciding the application 12B U/s 319 Cr.P.C.

29. Keeping in view all the factors, enumerated above, if cumulatively taken into account, goes to show that learned Trial Judge has failed to appreciate and apply the ratio laid down in the case of Hardeep Singh (Supra) in its correct perspective and has passed the order impugned, which is not sustainable in the eye of law. Therefore, revision deserves to be allowed.

30. Accordingly the impugned order dated 03.11.2018 is looses its graound and accordingly deserves to be quashed.

31. The order dated 03.11.2018 passed by VII-Additional Session Judge, Fatehpur passed while deciding application no. 12B under section 319 Cr.P.C. in four connected Session Trials i.e. S.T. Nos. 148/2014 under sections 396, 412 IPC, Police Station Bindki, District Fatehpur is set aside.

32. The revision is allowed.

33. The matter is remanded to the court concerned for fresh adjudication and court concerned is directed that after giving appropriate opportunity of hearing to rival parties, it shall decide the same, in accordance with law, keeping in view the aforesaid judgements decided by the Apex Court within one month from the date of production of a certified copy of this order.

Order Date:08.07.2019

shailesh