Vinod Kumar vs State Of U.P. And 4 Others
2023 Latest Caselaw 22316 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:166546
 
Court No. - 50
 

 
Case :- CRIMINAL REVISION No. - 1092 of 2023
 

 
Revisionist :- Vinod Kumar
 
Opposite Party :- State Of U.P. And 4 Others
 
Counsel for Revisionist :- Abhishek Kumar Saroj,Anil Kumar,Sunil Kumar
 
Counsel for Opposite Party :- G.A.,Bal Ram Bind
 

 
Hon'ble Ram Manohar Narayan Mishra,J.

1. Heard learned counsel for the revisionist, learned counsel for the opposite party Nos.2 to 5, learned AGA for the State and perused the material placed on record.

2. Instant criminal revision has been preferred against the impugned judgement order dated 19.11.2022, passed by Special Judge, SC/ST Act, Jaunpur in Special Session Trial Case No.86 of 2013 (Computer Case No.UPJP01-002211/13 (State vs. Akhilesh and others), relating to Case Crime No.431 of 2011, under Sections- 323, 504, 506 IPC and Section 3 (1)X of SC/ST Act, Police Station Kerakat, District Jaunpur, whereby the application under Section 319 Cr.P.C. moved by the informant for summoning other accused persons named in FIR to face trial alongwith accused Akhilesh Yadav, who is already facing trail, has been rejected.

3. Learned counsel for the revisionist submitted that in present case FIR was lodged at the instance of revisionist Vinod Kumar on 18.10.2011, at about 18:45 hours, vide Case Crime No.431 of 2011, under Sections 147, 323, 504, 506, 352, 452, 392 IPC and Section 3(1)X of SC/ST Act, with averment that accused Akhilesh Yadav alongwith four named accused persons, acting in planned and concerted manner armed with clubs and sticks, emerged on the door of informant on 15.10.2011 at about 7:00 hours and they abused the informant, when he objected to this, they chased and assaulted him. The informant ran inside his home but they assaulted him by entering into the house by clubs, sticks, kicks and fists and abused him by using casteist words to him and his wife. The family members of the informant came to the rescue of informant and his wife and thereafter, the accused persons made good their escape. The police investigated the offence but filed chargesheet only against accused Akhilesh Yadav and gave a finding that the complicity of other named accused persons, who are presently opposite party Nos. 2 to 5, was not found substantiated and they were falsely named in the FIR. The trial commenced against chargesheeted accused Akhilesh Yadav and he was charged by the court under Sections- 323, 504, 506 IPC and Section 3 (1)X of SC/ST Act. At the stage of prosecution evidence, the informant Vinod Kumar has been examined as PW-1, who has deposed against all the named accused persons in FIR including present opposite parties and he has stated that all the five accused persons had abused, assaulted and committed house trespass in the house of the informant and insulted the informant and his wife of casteist words. The informant has denied a portion of his statement recorded under Section 161 Cr.P.C. by the Investigating Officer in his sworn testimony before the Court. The informant proved the written report filed by him before the police station for lodging of the FIR of the incident during his evidence. He has also stated that Gram Pradhan was getting earth work performed in chakroad at the time of incident under MGNREGA Scheme by labourers. He further submitted that the court below has rejected the application under Section 319 Cr.P.C. moved by the revisionist without disclosing sufficient reasons therefor. Learned court below ignored the evidence of informant, in which he has supported the FIR version and there was no action for the court below to disbelief the sworn testimony of the informant. The informant lodged FIR on the very date of the incident and he has stated that he cannot tell the reason as to how the FIR was lodged on 18.10.2011. There was ample ground and evidence before the court below to summon the opposite party Nos.2 to 5 to face trial alongwith accused Akhilesh Yadav, who is already facing trial. The impugned order is liable to be set aside and proper orders may kindly be passed in the matter.

4. Per contra, learned AGA as well as learned counsel for the opposite party Nos.2 to 5 submitted that there is no illegality and irregularity in the impugned order passed by the court below. There is no specific allegation in the FIR as well as in the statement of informant regarding complicity of these opposite party Nos.2 to 5 in the said incident. Learned court below has discussed the name of independent witnesses on the basis of whose statement the Investigating Officer has dropped the name of opposite party Nos.2 to 5 in the chargesheet. The injuries of the informant are simple and superficial in nature. These persons are wrongly named in the FIR and Investigating Officer has given correct finding on the basis of material connected during investigation that these persons are wrongly named in the FIR and their complicity was not found. The revision is devoid of merits and impugned order is liable to be affirmed.

5. In FIR as many as five accused are named, however, after investigation the Investigating Officer concluded on the basis of material collected during investigation that the charge under Sections 323, 504, 506 IPC and Section 3(1)10 of SC/ST Act was found to be established against accused Akhilesh Yadav only and naming of other accused persons and application of other charges were not substantiated. Sections 148, 352, 452, 392 IPC were deleted after investigation from penal sections. Although, PW-1 Vinod Kumar has stated complicity of the named accused persons in the incident in his sworn testimony before the court and has supported FIR version but he has not specified any specific role to the persons, who were not chargehseeted and sought by the informant to be summoned as additional accused to face trial with the accused Akhilesh Yadav, who is already facing trial in the case. Injury report of injured Pramod Kumar reveals one contusion just below left eye, size 4 X 2cm in disc and complaint of pain on four region of the body. Thus, the injury report reveals one simple visible injury and in the opinion of the doctor, all the injuries were found to be simple. Learned trial court discussed the evidence of PW-1 informant Vinod Kumar on the basis of which the application under Section 319 Cr.P.c. was filed to summon the left out accused persons, who were named in the FIR.

6. Section 319 Cr.P.C. springs out of the doctrine "judex damnatur cum nocens absolvitur" (Judge is condemned when guilty is acquitted) and this doctrine is used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 Cr.P.C. It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and what stage should the court exercise its power as contemplated in Section 319 Cr.P.C. In the case of Hardeep Singh Vs. State of Punjab (2014) 3 SCC 92, Hon'ble Supreme Court determined the test that has to be applied by trial court for exercising powers under Section 319 Cr.P.C. Paragraphs 98 and 99 of the said judgment are as under:

"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 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."

7. In Sagar vs. State of U.P. and Anr., (2022) 6 SCC 389, Hon'ble Apex Court held as under:

"9. The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as notice above has to be applied is one which is more that 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?."

8. Considering the arguments of learned counsel for the parties, totality of facts and circumstances of the case, FIR version and the evidence of PW-1 informant, the impugned order passed by the learned court below and other material placed on record, I do not find any fault with the impugned order passed by the learned court below while rejecting the application under Section 319 Cr.P.C. moved by the revisionist. There is no illegality, irregularity or perversity found in the impugned order passed by the court below, hence, the revision is liable to be dismissed.

9. Accordingly, present revision stands dismissed and the impugned order passed by the court below is, hereby, affirmed

Order Date :- 18.8.2023

Kamarjahan