Allahabad High Court
Santosh Verma vs State Of U.P. And Another on 5 January, 2021
Bench: Dinesh Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL REVISION No. - 1759 of 2020
Revisionist :- Santosh Verma
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Rajendra Kumar,Ashok Kumar Rai,Pulak Ganguly
Counsel for Opposite Party :- G.A.,Ram Manohar Kashyap
Hon'ble Dinesh Kumar Singh-I,J.
Counter affidavit has been filed by the opposite party no. 2 and the same is taken on record.
Heard Sri Pulak Ganguly, learned counsel for the revisionist, Sri Ram Manohar Kashyap, learned counsel for the opposite party no. 2 and Sri G.P. Singh, learned A.G.A. for the State.
The present criminal revision has been preferred against the summoning order dated 6.2.2020 passed by fifth Additional Sessions Judge, Ghazipur in Sessions Trial No. 72 of 2019 arising out of Case Crime No. 9 of 2019, under Sections 302, 120B IPC, P.S. Dullahpur, District Ghazipur whereby learned court below has summoned the revisionist on the application under Section 319 Cr.P.C. of opposite party no. 1.
As per F.I.R. lodged by Rajai Ram, on 27.1.2019 at about 4:00 pm, two persons on motor-cycle came which was un-numbered and abused his son Neeraj and had taken him on his motor-cycle using abusive language against him indicating his caste and thereafter both of them had killed his son and thrown his body on Kharanja in village Sultanpur and he has further mentioned that prior to this accused-revisionist had also hatched conspiracy to kill his son but he succeeded in saving himself and ultimately he got his son killed. This F.I.R. was lodged on 28.1.2019 one day after the occurrence. In this case, after investigation, charge sheet has been submitted against two persons namely Neeraj @ Tigar and Amit and not against the accused-revisionist. Both the said arrested accused are stated not to have taken name of the accused-revisionist to have engaged them for killing the deceased Neeraj, rather accused Neeraj @ Tigar has stated that deceased was involved in a loot with them and when the looted property was being distributed among them, a dispute had occurred and in that dispute the deceased was killed by them. He has not stated name of the revisionist to be involved in this case of killing the deceased nor any statement is given that he was engaged by the revisionist for killing the deceased. Attention has also been drawn to the statement of PW-1 Rajai Ram in which also he has repeated the same version as given in the F.I.R. and subsequent to that he has attributed motive to the revisionist to cause murder of his son stating that revisionist's daughter Riya Verma was having relationship with the deceased and which was not going down well with the revisionist and because of that reason, he had him eliminated and 3-4 days prior to the occurrence threat was also given by the accused-revisionist. Attention has been drawn to the statement of Rakesh Prasad PW-2 who has also repeated the same version as that of the PW-1 and same motive has been assigned and in cross-examination this witness has also stated that he had never seen the revisionist in the company of the co-accused Neeraj @ Tigar and Amit and he was stating on the basis of suspicion against the accused-revisionist before the court. After having drawn attention to these pieces of evidence, it has been argued by the learned counsel for the revisionist that it is only on the basis of suspicion that revisionist has been made accused by the court below. No proper appreciation has been made. There is no evidence on record to the effect that conspiracy was hatched by the revisionist in collusion with other two co-accused who have been charge sheeted and yet on the basis of conjecture he has been summoned to face trial under Section 302 IPC read with Section 120B IPC. Not a spec of evidence has come on record of conspiracy being hatched by the revisionist therefore the impugned order deserves to be set aside.
Learned counsel for the opposite party no. 2 as well as learned A.G.A. have vehemently opposed the setting aside of the impugned order stating that there is clear role of the revisionist in committing murder of the deceased because earlier also attempt was made but he could not succeed and there was conspiracy hatched by him only.
After having taking into consideration the arguments of both the sides as well as after having heard the learned A.G.A., this Court is of the view that there is no sufficient evidence on record against the accused-revisionist for being summoned to face trial under Section 302 read with 120B IPC in view of the law laid down by Hon'ble Apex Court in Criminal Appeal No.1349 of 2018 (Labhuji Amratji Thakor and others vs. State of Gujarate and another), particularly in view of the law which has been cited in paragraph no. 8 of the said judgment which is reproduced here-in-below:
"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 above, law this is a fit case in which the impugned order deserves to be set aside and is accordingly set aside. Accordingly, the present revision is allowed.
Order Date :- 5.1.2021
A.P. Pandey
