Rahul And Another vs State Of U.P. And Another
2023 Latest Caselaw 11436 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 28.03.2023 
 
Judgment delivered on 18.04.2022 
 

 
Court No. - 90
 

 
Case :- CRIMINAL REVISION No. - 1047 of 2023
 

 
Revisionist :- Rahul And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Vijay Pratap Singh,Anand Pati Tiwari
 
Counsel for Opposite Party :- G.A.,Ishwar Chandra Tyagi
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

Heard learned counsel of the parties.

This criminal revision has been filed against the order dated 04.02.2023 passed by additional session Judge/Fast Frack Court No. 2, Gautam Budh Nagar in S.T. No. 140 of 2020 (State Vs. Vineet alias Vinni and others) under sections 147, 148, 149, 323, 307, 506, 302/34 I.P.C.and seven criminal Law Amendment act P. S. Dadri. By the impugned order the learned court below has allowed the application under section 319 Cr.P.C filed by the prosecution to summon the revisionist accused Rahul and Prince, and further Amit, Gaurav to face trial with charge-sheeted accused.

The opposite party no. 2 lodged an F.I.R. on 19.03.2020 at 12:30 alleging that today on 19.03.2020 at about 8:30 Vineet, Prince, Rahul, Amit, Gaurav with 3-4 unknown persons with common intention committed the murder of Ravindra the brother of the complainant and Prem Devi. Brahma Singh has also received gunshot injuries. Vikal has also suffered injuries. This incident has happened in front of the complainant, Vikas, Shalu the sister-in-law of the complainant and Minu the wife of the complainant, they also tried to rescue. All the assailants were firing. After committing the murder of the brother of the complainant and sister-in-law, wielding firearms and extending death threats they fled from the spot. During investigation, the name of Anjali, the wife of Vineet also came in the light. The investigating officer recorded the statement of complainant, the injured and the other witnesses and on the basis of evidence collected during investigation came to the conclusion that Sundar, Prince, Rahul, Amit, and Gaurav are not involved. The investigating officer exonerated them and submitted charge-sheet against Vineet and Anjali. Learned Magistrate while taking cognizance summoned Sunder one of the accused named in the FIR. During trial complainant Virender was examined as P.W.-1. Thereafter, prosecution filed an application under section 319 Cr.P.C. to summon four of the named accused of the F.I.R. which has been allowed by the court below.

The learned counsel for the revisionists contended that on 19.3.2020 the police recorded the statement of the first informant in which he reiterated the version of the first information report with certain improvements and stated that on the fateful day his wife was cleaning drain, which was objected by Anjali the wife of the co-accused Vineet. She exhorted her husband Vineet and other accused to kill, on which the accused persons opened fire upon the father, brother, sister-in-law and Vikal, however, no specific role or weapon has been assigned to any accused. The police recorded the statement of injured Brahma Singh, who came-forth with slight contradictions and has assigned the firearms to the co-accused Vineet and Sunder and a specific role of firing to them. Omveer , the son of deceased Mrs. Prem, in his statement assigned the specific role of firing to the co-accused Vineet. He has also stated that subsequently he came to know that the revisionists were also involved in the commission of the offence but no role has been assigned to them. Meenu, Shalu, Vikal, Vikas and Radhey in their statements have assigned the role of firing to the co-accused Vineet and no allegation has been levelled against the revisionists. During enquiry in the village the police came to know that except Vineet and his wife the other accused named in the first information report has been implicated due to village politics. During the investigation, several affidavits were submitted before the police by the independent witnesses denying the involvement of co-accused Sundar and presence of Prince the revisionist no. 2 on the spot at the time of occurrence. The police submitted a charge-sheet against Vineet and Mrs. Anjali and exculpated Sundar, while the investigation against remaining accused was kept pending. However the learned Magistrate took cognizance on the charge-sheet against Sundar also. During further investigation certain affidavits were submitted by independent witnesses denying the involvement of the revisionist as well as Gaurav and Amit. The police found their implication false and closed the investigation. The first informant filed objections and the learned court below directed for further investigation. Thereafter, the statements of first informant and other witnesses were again recorded in which also no specific role and weapon was assigned to the revisionists. Merely it was stated that they were also involved in the offence. No credible evidence could be brought forth during further investigation, Therefore, the police affirmed its earlier report and closed the investigation. During the trial, the first informant appeared as P.W.1 in which he improved the prosecution case and assigned bamboo sticks in the hands of the revisionists, however, no specific role was assigned to the revisionists. The learned counsel further contended that the learned court below without following the settled law for exercising the powers under section 319 Cr.P.C. in a cavalier manner has allowed the application under section 319 Cr.P.C. The impugned order is absolutely illegal and not sustainable in the eye of law. The learned counsel also placed reliance on the following citations:

1. Juhru & others Vs. Karim & another in Criminal Appeal No. 549 of 2023 (arising out of Special Leave Petition (Criminal) No. 1658 of 2020) decided on 21.02.2023.

2. Smt. Neelam Devi and two others Vs. State of U.P. and another in Criminal Revision No. 3390 of 2022 decided on 28.01.2023.

The learned counsel for the opposite party no. 2 and the learned A.G.A. contended that the revisionists- accused are named in the first information report. There are clear allegations that with common intention to commit murder they participated in the commission of the offence causing firearm injuries to Ravindra, Prem Devi, Brahma Singh resulting in death of Ravindra and Prem Devi. Brahma Singh and Vikal are the two injured. The complainant has corroborated the allegations of the first information report. Other witnesses have also stated about the presence of revisionists-accused and other named accused in their statements recorded by the investigating officer. So the complicity of the revisionists-accused is fully established but investigating officer only on the basis of some affidavits and statements of some other persons ignoring the statements of complainant and other important witnesses without any sufficient reason has omitted the names of the revisionists. During trial complainant Virender in his deposition has stated about the involvement of the revisionists-accused in the commission of the crime. Complainant is an eye-witness of the incident. So there is sufficient evidence on record establishing the involvement of the revisionists-accused in the offence. The learned trial court considering the entire facts and evidence and the proposition of law on the point has held that the revisionists-accused and two other accused should also be tried as they are involved in the commission of the crime. There is no illegality in the impugned order.

The Apex Court in the case of Hardeep Singh Vs. State of Punjab AIR 2014 Supreme Court page 1400 has prescribed the standard of evidence required for exercising powers under section 319 Cr.P.C. The relevant paras 98 and 99 are as follows:

"98. 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."

"99. Thus, we hold that though only a prima face 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 the case of Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC page 706 the Apex Court has reiterated the principles laid down in Hardeep Singh's case. The relevant para no. 13 is quoted below:

"13. In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated: power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e., before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some ''evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The ''evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the investigating officer at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in-chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity."

It is not disputed that the revisionists-accused are named in the first information report. It is alleged in the F.I.R. that all the named accused and 3-4 unknown persons were firing from illicit arms causing injuries to Ravindra, Prem Devi resulting in their death. Brahm Singh and Vikal also sustained injuries. The complainant in his statement recorded during investigation has stated about use of firearms in causing injuries. Some of the witnesses have also stated that they have not seen the revisionists-accused at the time of incident. The investigating officer has recorded the statements of many witnesses in question answer form to make clear about the complicity of the revisionists-accused but the witnesses have stated that they cannot definitely say that the revisionists-accused have participated in the commission of the offence. This fact has also come during investigation that the revisionists-accused have cordial relations with Vinit and they regularly visit and do Pairvi. They have been named because they may do Pairvi of Vineet . After a thorough investigation and further investigation the investigating officer exonerated the revisionists. Till now only the complainant has been examined before the trial court. Deviating from the allegations of the first information report and his previous statement recorded during investigation this witness has assigned bamboo sticks to the revisionists and also stated that they assaulted Vikal. The two injured and other eye witnesses are yet to be examined. The testimony of these witnesses particularly injured witnesses will have greater evidentiary value. The prosecution should have waited for deposition of other witnesses. The prosecution has moved the application under section 319 Cr.P.C. at an early stage. The application appears to be premature. At this point of time there is only the statement of complainant and in respect of the revisionist it is at variance with his previous statement.

So applying the proposition of law as propounded by the Apex Court in Catena of decisions on the case in hand it is clear that at this stage the evidence available on record does not fulfil the standard of evidence required for exercising the powers under section 319 Cr.P.C. At this stage there is no sufficient and cogent evidence which can be the basis of exercising the powers under section 319 Cr.P.C. However the prosecution may be at liberty to move a fresh application after examination of other witnesses and the trial court may assess it and decide the application in accordance with law.

In view of the aforesaid discussion the impugned order is not sustainable and is liable to be set aside. The revision is liable to be allowed.

The revision is hereby allowed and the impugned order dated 04.02.2023 in respect of the revisionist is hereby set aside. However, it is made clear that the prosecution may be at liberty to move fresh application after the deposition of some other witnesses of fact. If any application is moved by the prosecution then the trial court will consider it afresh in accordance with law.

Order Date:-18.04.2022

Masarrat