Allahabad High Court
Kallu vs State Of U.P. And Another on 14 December, 2023
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:237215
Court No. - 80
Case :- CRIMINAL APPEAL No. - 7137 of 2023
Appellant :- Kallu
Respondent :- State of U.P. and Another
Counsel for Appellant :- Dinesh Kumar Misra
Counsel for Respondent :- G.A.,Sudhanshu Kumar Singh
Hon'ble Subhash Chandra Sharma,J.
1. Heard learned counsel for the appellant, learned counsel for the respondent as well as learned AGA for the State.
2. The present criminal appeal has been preferred by the appellant with a prayer to allow the present appeal and set aside the order dated 08.02.2023 passed by the Special Judge/SC & ST Act, Muzaffar Nagar in S.T. No. 842/2017 (Arises from Case Crime No. 0306/2016) (State versus Fazala and others) under Sections 323, 504, 324, 325, 308 I.P.C. & 3(1)(Da)SC/ST Act, Police Station Titavi, District- Muzaffar Nagar by which learned Additional Special Judge/SC&ST Act, Muzaffar Nagar, has rejected the application under Section 319 Cr.P.C. filed by the appellant/informant.
3. It is submitted by learned counsel for the appellant that in this case an application under Section 319 Cr.P.C. was moved as paper no. 17(ka) by the appellant Kallu to summon Jaswant as an accused, but this was rejected by learned trial court vide order dated 08.02.2023 without considering the evidence as recorded before the learned trial court and other material on record. It is further submitted that in FIR, the name of Jaswant was mentioned to make instigation to co-accused Zakir and Fazla to make assault on the informant. During investigation, the name of Jaswant was exonerated and charge-sheet was filed against Fazla, Zakir and Gaurav. It is further submitted that the statement of the informant, Kallu, was recorded as P.W.-1 and, the injured, Sonu, as P.W.-2. Both of the witnesses were injured in the same incident and supported the prosecution version and stated that the present respondent, Jaswant, also made assault with lathi danda on them causing injury on their person, but this fact was not taken into consideration by the learned court concerned while passing the order in question and rejected the application which cannot be said to be in conformity with the provisions of law and material on record. Therefore, request to set it aside and allow the appeal with direction to the learned trial court to summon the respondent, Jaswant, for trial.
4. Learned counsel for the respondent as well as learned AGA opposed the prayer as aforesaid and contended that in this case, FIR was lodged by the informant, Kallu, himself against two co-accused persons Fazla and Zakir. It was mentioned in the FIR that present respondent, Jaswant, and Sachin also came there and they uttered to beat him on which Fazla and Zakir made assault with lathi and axe which were in their hands. There was no any mention that present respondent was also equipped with lathi or an axe and he also made an assault on the informant and injured Sonu. During the course of investigation, the statement of the witnesses were recorded under Section 161 Cr.P.C. in which no any such statement was made either by the informant or injured Sonu regarding involvement of present respondent in causing injuries to them and involvement of Sachin was found to be false and on his place involvement of Gaurav was found to be established. As a result, charge-sheet was submitted against Fazla, Zakir and Gaurav and the statements of informant and injured witness Sonu were recorded before the learned trial court. They made improvement in their statements and also stated that Jaswant also took part in the incident and made assault with lathi on the injured persons. This statement cannot be said to be reliable. The learned court concerned passed the order in question in detail by considering all these facts.
5. In support of above submissions, learned counsel for the respondent relied upon the judgment as laid down by the Hon'ble Supreme Court in Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92. In this way, the order passed by learned court concerned is sound and does not suffer with infirmity, but this appeal being devoid of merit is liable to be dismissed.
6. On considering the facts and circumstances of the case, submission made by learned counsel for both the parties and learned AGA, the version of FIR, the statements of informant and injured, Sonu, as recorded by the I.O. during the course of investigation and their statements as recorded before the learned trial court, it appears that no any mention was made in the FIR that present respondent also made assault with lathi or axe on the informant and injured, Sonu, likewise during investigation, no such statements were made by them. During trial, in the statement of informant, Kallu, it was stated that the respondent also made assault with lathi on his person causing injuries with other co-accused persons and also insulted them by using abusive language related to his caste. Injured Sonu was examined as P.W.-2 and he also made similar statement and further stated that he told names of assailants to the informant, Kallu, and then he lodged the FIR, but no such statement regarding assault by the respondent gets mention in the FIR and in the Statement as recorded by the I.O. In this way, this statement appears to be improved. In the case of Hardeep Singh (supra) and in other case decided by the Hon'ble Supreme Court in the Case of Sagar vs. State of U.P. and another, reported in 2022 LiveLaw (SC) 26, Vikas Rathi vs. The State of U.P. & Anr., reported in 2023 LiveLaw (SC) 172, it has been clearly held that, "the power under Section 319 Cr.P.C. ought to be exercised sparingly and would require much stronger evidence than near probability of the accused person's complicity. The test elucidated by the Constitution Bench is as under - 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."
7. In the context of facts as noted above, this Court is of the opinion that there appears no illegality or impropriety in the order passed by learned trial court dated 08.02.2023, but this appeal being devoid of merit is liable to be dismissed.
8. Accordingly, the appeal is dismissed.
Order Date :- 14.12.2023
Anjali
