Pradeep Kumar Tiwari vs State Of U.P. And 7 Others
2019 Latest Caselaw 5490 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved 
 
AFR
 

 
Court No. - 67
 

 
Case :- CRIMINAL REVISION No. - 236 of 2018
 

 
Revisionist :- Pradeep Kumar Tiwari
 
Opposite Party :- State Of U.P. And 7 Others
 
Counsel for Revisionist :- Indra Kumar Chaturvedi
 
Counsel for Opposite Party :- G.A.,Uday Shankar Tiwari
 

 
Hon'ble Rahul Chaturvedi,J.

Heard Sri I.K.Chaturvedi, learned counsel for the revisionist, Sri Kamal Krishna, learned Senior Counsel assisted by Sri Uday Shankar Tiwari, learned counsel for the opposite party nos. 2 to 8, learned AGA for the State at length and perused the record.

This criminal revision is preferred by Pradeep Kumar Tiwari, complainant/informant of the case, who is aggrieved by the order dated 28.10.2017 by which learned Sessions Judge, Basti while rejecting the application no. 35Kha under Section 319 Cr.P.C. has declined to summon opposite party nos. 2 to 8 in S.T. No. 211 of 2016 (State Vs. Roop Narayan Giri & others) under Section 302 IPC, P.S. Kaptanganj, District Basti.

Pleadings between the parties have been exchanged and the matter has been ripe for final argument.

Submission made by counsel is that the revisionist Pradeep Kumar Tiwari lodged an FIR on 08.07.2016 at 6.30 a.m. for the incident said to have been taken place during 07.07.2016 and 08.07.2016 at unknown time against :-

i) Rajendra Prasad Mishra

ii) Virendra Kumar Mishra

iii) Mahendra Kumar Mishra

iv) Surendra Kumar Mishra

v) Ankur Mishra

vi) Ram Sumer Giri

vii) Roop Narayan Giri

viii) Manidhar Mishra @ Pinku Mishra.

The said FIR was registered as case crime no. 568 of 2016, under Sections 147, 148, 149 and 302 IPC with the prosecution story that the revisionist/informant is permanent resident of village Dudhaura (Katri), P.S. Kaptanganj, Basti leaving behind his parents and younger son Ashutosh at village. During intervening night of 7/8 July 2016, his father Ram Chandra Tiwari was assaulted by all the named eight accused persons with their respective weapons, namely, knife and sabbal etc., Out of fear the informant's mother and son could not raise any alarm but they have witnessed the incident. After getting the information the applicant reached on the spot and then the dead body of his father was lying outside the house. The FIR further reveals that there was long drawn animosity with regard to some landed property between the son of the deceased and the assailants and this might be a cause of this crime. From the aforesaid text of the FIR the following silent factors have surfaced:-

(i) The informant is not an eye witness of the incident.

(ii) Except the narration of names of the assailants and casual reference to weapon used, there is no specific role of assault has been attributed with the respective weapon.

(iii) The alleged incident was witnessed by informant's son Ashutosh and her mother only.

(iv) There was a long drawn animosity with regard to the certain land between the deceased and the assailants and as per version of FIR, this could be the reason behind, for the commission of the present crime.

The post mortem report of the deceased shows that the deceased has sustained three injuries over his person:-

(a) Lacerated would 4 x 1 x 1.5 cm, 4 cm from root of left ear posterior to heard with sharp margin but heavy sharp object.

(b) LW on 5 cm x 0.6 cm x 1 am 9 cm posterior to left ear with underlying bone fracture caused by heavy sharp object.

(c) Contusion of left eye.

The cause of death as per the opinion of doctor is due to haemorrhage & shock as a result of antemortem head injury.

After lodging the FIR the investigation started rolling and eventually the charge sheet was submitted only against Roop Narayan Giri dropping the name of all remaining seven accused persons from the charge sheet. There is nothing on record or in the statements of under Section 161 Cr.P.C. of various witnesses. Thus the police has submitted charge sheet only against Roop Narain Giri. As the offence is triable by learned Sessions Judge, the matter was committed to sessions.

Learned trial judge framed charges against sole accused Roop Narain Giri and thereafter testimonry of PW-1 Pradeep Kumar Tiwari and informant and PW-2 Ashutosh who is son of the deceased, were recorded on 03.07.2017 and 12.09.2017 respectively. After taking the respective depositions of prosecution witnesses the prosecution on 03.10.2017 have moved an application under Section 319 Cr.P.C. which is annexed as Annexure-5 to the affidavit accompanying the application.

I have got an opportunity to go through the application. In paragraph 2 of the said application which has been mentioned that accused Ankur Mishra was carrying sabbal, Manidhar Mishra was carrying a knife and lathi and Roop Narain Giri was carrying a sabbal in their hands and rest of the persons surrounded the deceased but the police has arbitrarily submitted charge sheet only against Roop Narain Giri and it has been contended by the informant that all the prosecution were said to have been involved in commission of the offence and thus it was prayed that all the accused persons who were not charge sheeted by the police may be summoned in exercise power under Section 319 Cr.P.C.

I have carefully gone through the testimony of PW-1 Pradeep Kumar Tiwari (not an eye witness) and PW-2 Ashutosh Tiwari the son of the informant and the order impugned. PW-1 Pradeep Kumar Tiwari who is not an eye witness came to the place of occurrence only after getting the information from his son Ashutosh about the incident on 08.07.2016 at 5.25 in the morning. After getting information he rushed to the village Dudhaura, Katri where he found that the dead body of his father was lying in the house. In his testimony he has submitted that he is gainfully employed as LIC Agent at Basti and resides there with his family, leaving behind his younger son Ashutosh and his parent at the village. He further submitted that the incident was witnessed by his son Ashutosh and his grandmother. Both the witnesses has revealed the name of the assailants that all of them assaulted the deceased with sabbal, knife, lathi & danda. The relationship was strained between the assailants and his father on account of certain agricultural land and rerlated litigatons between therm. On the earlier occasion an attempt was made by these person of which the FIR was registered in the year 2011.

PW-2 Ashutosh Tiwari in his examination-in-chief has deposed before the court that when the incident took place he was studying around 11-12 in the midnight. His grand father was lying in the verandah and all of sudden, the name of accused armed with sabbal, lathi & danda and barged into the house and surrounded his grand father, Ankur Mihsra armed with sabbal, Manidhar Mihsra armed with knive and lathi and Roop Narain giri was armed with sabbal have assaulted with their respective weapons and this witness saw the incident by his own eyes. The grand mother has shouted and have begged from the assailants, not to assault, thereafter, she became unconscious. In his examination in chief, he has candidly submitted that he himself perceived the incident and identified the assailant. Thereafter he was put for cross examination in which he has stated that he is student of class 11 and after having his dinner around 6-7 in the night with his grand parent he went for his studies. In his cross examination he broadly supported the prosecution story with the specific role to Roop Narain Giri, Manidhar Mishra, Ankur Mishra. Thereafter he tried to save his injurd grand father but he could not do so. He has seen the assailants while they were assaulting. In his examination in chief he has reiterated the version that he has discloed the name of assailants as Roop Narain Giri, Manidhar Mishra and Ankur Mishra with their respective weapons carrying and assaulted by them.

In the light of the testimony, this Court has to examine the validity and veracity of the order impugned dated 28.10.2017.

Section 319 Cr.P.C. springs out from the doctrine of Judex damnatur cum nocens absolvitor (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beason light while expalining the impact and spirit underlying the enactment of Section 319 Cr.P.C.. It is duty of the court to do justice by punishing the real culprit where the investigating agency for any reason does not arraying the real culprit. Whereafter the investigation, the police/investigating agency comes to conclusion the complicity of certain person are doubtful and submits its report, even then the court is not powerless to summon those persons whose names are dropped from the charge sheet. However this power is to used only in a given circumstances that too after having sufficient material on record, establishing the complicity of non-accused beyond any iota of doubt. It has been contended by learned counsel for the revisionist, that the law courts are sole repository of justice and public faith in system.

The experience shows us that at times the real offenders use all sorts of malpractice to woo and allure the investigation phenomenon in our system. To cope up this extraordinary situaton, the law court are armed with this extraordinary powers.

Per contra Sri Kamal Krishna, learned Sr. Advocae for opposite party no.2 submits that powers contained under Section 319 Cr.P.C., is being a discretionary power has to be used sparingly and not only in extraordinary circumtances where there is cogent evidence is available. Prima facie opinion which is to be formed in exercise of this power requires much stronger evidence then mere probability and complicity of person.The principle applied is one which is more than prima facie case as examined at the time of framig of charge but not of satisfaction to the extent that the evidence, if goes uncontrovered, would lead to confession of the accused.

Hon'ble Apex Court for this purpose has provided certain golden guidelines in using this extraordinary power under Section 319 Cr.P.C. which is quoted herein below:-

As regards the degree of satisfaction required for invoking the powers under Section 319 CrPC, the Constitution Bench has laid down the principles as follows:

"95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused." The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."

In the light of the above guidelines whereby PW-1 who is not an eye witness is deposing before the court after gathering the information from his son. In fact, PW-2 Ashutosh is an eye witness who have perceived by his own senses, the entire incident and has attributed three persons in the commission of the offence, namely, Roop Narain Mishra, Manidhar Mishra and Ankur Mishra who were said to have been assaulted upon the deceased by their respective weapons. The name of the rest of the persons were only named in the FIR and in the latest citation of Hon'ble Apex Court in the case of Periyasami and others Vs. S. Nallasamy in Crl.Appeal No. 456 of 2019 decided on 14.03.2019, the Hon'ble Apex Court in paragraph 15 of the judgement that mere disclosing the name of accused persons cannot said to be strong and cogent evidence to make them stand for trial for the offence in exercise of power U/S 319 Cr.P.C.. Hon'ble Apex Court while relying upon the Hardeep Singh's (supra) judgment has categorically opined that the additional accused cannot be summoned under Section 319 Cr.P.C. in a casual and cavalier manner in absence of any strong and cogent evidence. Under Section 319 Cr.P.C. additional accused cannot be summoned only if there is more than a prima facie case as required at the time of framing of charge but which is less then a satisfaction requires at the time of conclusion of trial.

Thus mere mentioning the name of the rest of the accused persons, namely, Rajendra Prasad Mishra, Virendra Kumar Mishra, Mahendra Kumar Mishra, Surendra Kumar Mishra, Ankur Mishra and Ram Sumer Giri cannot be summoned under Section 319 Cr.P.C. and the learned Sessions Judge is perfectly justified while declining the prayer to summon the aforementioned accused persons in exercise of power under Section 319 Cr.P.C.. So far as the complicity of Ankur Mishra, Manidhar Mishra are concerned appears to be specific role has been attributed to them in the testimony of PW-2. The learned trial court must take all the facets of the case, testimonies, statements and other materials on record during investigation and their respective testimonies, while forming his independent opinion before invoking its extraordinary powers under Section 319 Cr.P.C. and then record his personal satisfaction for summoning the non accused.

Under the circumstances the present revision succeeds in part, leaned trial judge is expected to reconsider and revisit as to whether Ankur Mishra and Manidhar Mishra may be summoned in exercise of power under Section 319 Cr.P.C. afresh in the light of the guidelines provided in the Hardeep Singh's case (supra) and other latest cases by passing a detailed and well reasoned order, unaffected with the observation made by this Court in the present case and apply his own judicial mind within a period of six weeks from the date of production of certified copy of this order.

So far as rest of the accused persons are concerned, I do not find any illegality or infirmity in the order of learned Sessions Judge.

With the aforesaid observation the present criminal revision is disposed of.

Order dated: 08 /07 /2019

Abhishek Sri/-