Singhasan Yadav And 2 Others vs State Of U.P. And 8 Others
2022 Latest Caselaw 11232 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 

 
Reserved on : 03/08/2022
 
Delivered on : 25/08/2022
 
(Through Video Conferencing from Lucknow Bench Lucknow)
 

 
Court No. - 25
 

 
Case :- CRIMINAL REVISION No. - 813 of 2022
 

 
Revisionist :- Singhasan Yadav And 2 Others
 
Opposite Party :- State Of U.P. And 8 Others
 
Counsel for Revisionist :- Archana Singh,Shreeprakash Singh
 
Counsel for Opposite Party :- G.A.,Hirdesh Kumar Yadav,Sushma Yadav
 

 
Hon'ble Brij Raj Singh,J.

1. The present criminal revision under Section 397/401 Cr.P.C. has been filed with a prayer to set aside the order dated 16.12.2021 passed by Additional Sessions Judge (FTC-II), District Ghazipur in Sessions Trial No. 107 of 2010, C.N.R. No. UPGH-01-000917-2010 (State Vs. Gorakh Yadav and Others) arising out of Case Crime No. 574 of 2007, under Sections 323, 325, 504, 506 I.P.C., Police Station- Dildar Nagar, District- Ghazipur, with a further prayer to allow the application being Application No. 32-B), under Section 319 Cr.P.C. and summon the opposite party Nos. 02 to 09 to face the trial with charge-sheeted accused.

2. The application No. 32-B under Section 319 Cr.P.C. was moved by Singhasan Yadav mentioning therein that he had lodged F.I.R. against 13 nominated persons but the Investigating Officer filed charge sheet only against 4 persons. He submitted in the application that accused Rambali Yadav, Ramlachhan, Phullan Yadav, Bheem Yadav, Paras Yadav, Prabhu Yadav, Ramji and Radhey Shyam were not charged whereas they also committed the crime and many persons were injured and charges under Sections 323, 325, 504, 506 I.P.C. are framed. P.W. -1, P.W. -2, P.W. -3, P.W. -4, P.W. -5 and P.W. -6 were examined before the court below and they deposed that all the 13 persons had assaulted the injured persons. Earlier application under Section 319 Cr.P.C. was filed by the applicant on 25.02.2011 and the order was passed on 01.09.2012 by which the court below observed that after recording evidences ,later on the application will be placed. Thereafter, six witnesses have been examined being P.W. -1 to P.W. -6, whose statements are annexed as Annexure Nos. 5 to 13 to the application. It has been submitted by the counsel for the applicants that Rajaram Yadav, Satya Narain, Sanjay Yadav and Lallan Yadav are the four injured witnesses and they have stated that all the 13 persons had assaulted them and injuries were received.

3. The opposite party Nos. 2 to 9 opposed the said application and they submitted that the application under Section 319 Cr.P.C. has been filed only in order to create pressure and final report was also submitted by the Investigating Officer in their favour. It has been submitted that charge sheet was filed against four persons against whom charges were made.

4. The matter was heard by the court below and case was decided on 16.12.2021 and Application No. 32-B was rejected. The court below while rejecting the application observed in the impugned order that the charge sheet has not been filed against the answering respondents and the offence is made out only against four persons, therefore, the statements of P.W. -1 to P.W. -6 cannot be relied. The court below further observed that out of retaliation the present case was lodged by the applicants by which they intend to create pressure by instituting cross-case. The court below has not believed the version of the witnesses 1 to 6. Court below further observed that on the basis of application under Section 156(3) Cr.P.C., the case was lodged which creates doubt.

5. Heard Sri Shree Prakash Singh, learned counsel for the revisionists and Sri Hirdesh Kumar Yadav, learned counsel for the opposite party Nos.2 to 9.

6. Record reveals that there are six witness being P.W. -1 to P.W. -6, who have been examined before the court. They specifically mentioned the names of the opposite party Nos. 2 to 9 and have submitted that they had also assaulted them. In the present case, there are four injured, namely, Rajaram Yadav, Satya Narain, Sanjay Yadav and Lallan Yadav and all the injured witnesses have been examined before the court below and they have specifically assigned the role of assault to opposite party Nos. 2 to 9. The specific role assigned to the accused has been overlooked coupled with the fact that there are four injured who have been examined before the court. The final report in favour of opposite party Nos. 2 to 9 does not mean that they are absolved from the charges. The witnesses Nos. 1 to 6 have been examined before the court and their deposition has been recorded and after recording cross version it comes on record that offence is made out against the opposite party Nos. 2 to 9. If the Investigating Officer did not file charge sheet, it does not mean that the accused should be exonerated on the basis of the evidence collected by the Investigating Officer. The total injuries received by all the four injured, are 18 in number. The 13 persons are alleged to have committed the offence by assaulting the injured. It is not the stage where it can be said that opposite party Nos. 2 to 9 were not involved in commission of the crime. It is a case more than prima facie where opposite party Nos. 2 to 9 should be summoned and tried for the offences. The court below had done mini/many trial and recorded finding that they are innocent whereas four injured witnesses including two other witnesses have deposed before the court that they were assaulted by the opposite party Nos. 2 to 9 due to which four persons received injury.

7. Counsel for the applicants has relied upon paragraphs 99 of the judgment rendered by Hon'ble Supreme Court in Hardeep Singh Vs. State of Punjab and Others reported in [2014 (1) ADJ 727 (SC)], to submit that in view of the aforesaid judgment opposite party Nos. 2 to 9 should not be summoned under Section 319 Cr.P.C. and the application may be dismissed. Paragraph 99 of the said judgment reads as under:

"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 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."

8. I have carefully gone through the judgment and find that Hon'ble Supreme Court has observed that the power under Section 319 Cr.P.C. is a discretionary and extraordinary power. It can be exercised where strong and cogent evidence occurred from the evidences led before the court. In the present case, there are four injured who have deposed before the court that opposite party Nos. 2 to 9 made assault on them and they received injuries. There is more than prima facie case, therefore, the application under Section 319 Cr.P.C. is liable to be allowed.

9. In view of the aforesaid discussion, I set aside the impugned order dated 16.12.2021 passed by the Additional Sessions Judge (FTC-II), District Ghazipur in Sessions Trial No. 107 of 2010, C.N.R. No. UPGH-01-000917-2010 (State Vs. Gorakh Yadav and Others) arising out of Case Crime No. 574 of 2007, under Sections 323, 325, 504, 506 I.P.C., Police Station- Dildar Nagar, District- Ghazipur; and direct the court below to summon and try the opposite party Nos. 2 to 9 under Section 319 Cr.P.C. It is further directed that the trial will be concluded within a period of 10 months from the date of production of a certified copy of this order.

10. The revision is allowed in the above terms.

Order Date :- 24.08.2022

Arun K. Singh

[Brij Raj Singh, J.]