Allahabad High Court
Smt. Sheela Devi vs State Of U.P.And 3 Others on 9 February, 2021
Bench: Dinesh Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL REVISION No. - 2045 of 2020
Revisionist :- Smt. Sheela Devi
Opposite Party :- State Of U.P.And 3 Others
Counsel for Revisionist :- Satendra Singh
Counsel for Opposite Party :- G.A.,Akhilesh Kumar Mishra,Anurag Dubey
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Satendra Singh, learned counsel for the revisionist, Sri Anurag Dubey, learned counsel for opposite party nos. 2 to 4 and Sri G.P. Singh,, learned A.G.A. appearing for State and perused the record.
This criminal revision has been preferred against the judgment and order dated 26.08.2020 passed by the Additional District and Session Judge, Court No.6, Mainpuri in Session Trial No. 206 of 2018 (State of U.P. Vs. Pushpendra and others) arising out of Case Crime No. 192 of 2018 under sections 147, 148, 149, 307, 302, 506 IPC, Police Station Kishni, District Mainpuri whereby the trial court has rejected informant's application being paper no. 16-A, moved under section 319 Cr.P.C and refused to summon the accused/ opposite party nos. 2 to 4 to face trial of the aforesaid session trial.
As per FIR, which has been lodged by the revisionist, the prosecution case is that on 7.4.2018 at about 2.00 p.m. when she was at the field of watermelon, her daughter Ruchi was also with her and her son Majboot Singh @ Satendra was lying in the hut, at that very time, the opposite party nos. 2 to 4 along with other co-accused named in the FIR which were seven in number and together with five unknown persons, came there and started having water from the tap situated near the hut and thereafter they entered in the hut and tied the hands and feet of her son, thereafter, her son screamed, hearing which she and her daughter ran towards their hut and the informant and her daughter saw that all the accused had opened fire upon her son and thereafter they fled from the scene of occurrence giving threat. Out of these persons, from accused Manoj and Abhay (opposite party nos. 3 and 4) a dispute had arisen six months ago. Pramod, opposite party no. 2 and Pushpendra had borrowed a sum of Rs.50,000/- from the deceased, which were not being returned. Further, it is mentioned in the FIR that the informant had got her son taken to the hospital, Mainpuri where he died.In post-mortem report, the deceased is found to have sustained as many as 11 fire arm injuries, which were cause of his death.
Submission made by the learned counsel for revisionist is that the trial court has passed the impugned order erroneously despite there being sufficient evidence against the opposite party nos. 2 to 4 for being summoned under section 319 Cr.P.C. to face trial. In this regard, he had drawn attention to the statement of PW-1, Sheela Devi wherein she had stated that she and her daughter Ruchi were present in their field of watermelon and her son was lying in hut and then the opposite party nos. 2 to 4 along with other accused named in the FIR with other five unknown persons came together and had tied the hands and feet of her son and when he screamed, she came there and then all the persons said that his family members have come, therefore, the deceased should be killed. Her son was fired upon by them and then the accused persons fled from there. When her son was taken to hospital, Mainpuri, he died on way. Similar statement has been given by PW-2 who is daughter of the informant PW-1 Km. Ruchi. Further submission is that the trial court has disbelieved the statements of these two witnesses only on the ground that the accused persons in Court i.e. Mantoo, Pushpendra, Vipin and Abhishek along with other companions had together killed her son and this occurrence was seen by her and her daughter Ruchi and by the said statement, it was concluded by the court below that no allegation was made in the said statement against the opposite party nos. 2 to 4. As regard the statement of Ruchi, it has been discarded on the ground that she had stated that before this occurrence, she had not met the accused persons and five accused were having their faces covered. On the basis of this reasoning the said statement had been discarded. It is stated to be not proper basis to discard them because in the statement of PW-1 and PW-2, specifically name of opposite party nos. 2 to 4 have been taken to be the persons who were involved in making assault upon the deceased by fire arm and the deceased has suffered as many as 11 fire arm injuries.
Against this, learned counsel for opposite party nos. 2 to 4 has drawn attention to the affidavit of Rajesh Kumar which is annexed at page-35 of the counter affidavit and argued that the said person was working in Tata Elash J.V. Company on the post of supervisor and that he has stated that on 7.4.2018 at about 8.00 A.M., the opposite party no. 2 Pramod was present there working with them, therefore, the plea of alibi has been taken with respect to this accused and it is argued by him that because of this reason, the Investigating Officer had excluded the name of the said accused from charge-sheet. Further, it is argued that from the statements of PW-1 and PW-2, it is clear that they have not stated anything against the opposite party nos. 2 to 4 and therefore the summoning of accused/opposite party nos. 2 to 4 on the basis of their statements, would be inappropriate.
I do not agree with the argument of the learned counsel for opposite party nos. 2 to 4 because the evidence, which has come on record, appears to be very strong against them because there are two eye witnesses who had seen the deceased being attacked by the opposite party nos. 2 to 4 also and deceased had also suffered 11 fire arm injuries, therefore, in case, this evidence is left unrebutted, there would be strong possibility of the said accused being held guilty and prima-facie there appears to be no appropriate appreciation of evidence made by the court below.
The Supreme Court in the case of Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 in paragraph nos. 105 and 106 has held as under:
"105. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary 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 Cr.P.C. In Section 319 Cr.P.C. 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 Cr.P.C. to form any opinion as to the guilt of the accused."
In view of the aforesaid, this revision is allowed and the impugned order dated 26.08.2020 is set aside.
However, the court below is directed to decide this case afresh after giving opportunity within a period of one month.
Order Date :- 9.2.2021
AU
