Bablu @ Dinesh Singh And 5 Others vs State Of U.P. And Another
2023 Latest Caselaw 4580 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 25.1.2023
 
Judgment delivered on 13.2.2023
 

 
Court No. - 89
 

 
Case :- CRIMINAL REVISION No. - 4176 of 2022
 

 
Revisionist :- Bablu @ Dinesh Singh And 5 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Anurag Vajpeyi,Atharva Dixit,Aushim Luthra,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Abhishek Kumar,Udai Chandani
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

Heard Sri Manish Tiwari, learned Senior Counsel assisted by Sri Aushim Luthra, learned counsel for the revisionists, Sri Udai Chandani, learned counsel for the O.P. No. 2 and learned A.G.A. for the State.

This criminal revision is directed against the order dated 6.9.2022 passed by Additional Sessions Judge/Special Judge (Gangster Act) F.T.C. (1st) Gautam Budh Nagar in S.T. No. 675 of 2015 under section 147, 148, 302/149, 307/149, 323/149, 504, 506 IPC (State of U.P. and another Vs. Gyani and others), P.S. Knowledge Park, District Gautam Budh Nagar. By the impugned order the learned trial court on application of prosecution under section 319 Cr.P.C. has summoned the revisionists-accused to face trial for offence under section 147, 148, 302/149, 307/149, 323/149, 504 and 506 IPC.

An FIR was lodged on 10.5.2015 at 15:20 hours by Mahesh Chandra against 16 named and several unnamed persons alleging therein that on 10.5.2015 the complainant with his brother Vijendra, uncle Ishwar Singh, Sonu @ Pushkar, Mahendra, Ramesh, Suresh, Karme @ Karam Singh, Naveen @ Kale, Sonu S/o Ramesh, Mintu @ Shyama Singh was ploughing his field situated at Hamlet Gulawali. At about 10:30 a.m. 50-60 persons in 15-16 vehicles and four tractors holding lathi, farsa, iron rod etc. came there and asked the complainant why they are working in their field. The complainant said that the field belongs to him. On this Lekhraj, Kanwar Singh, Shyam Singh, Anniraj, Komal, Nauraj, Ghanshyam, Jag Pravesh, Billoo, Gajraj, Malkhan, Pawan, Sukhpal, Mukesh Bindal and other unknown persons attacked the complainant and his companions with the weapons in their hands causing serious injuries to them. Ishwar Singh, uncle of the complainant was attacked by Lekhraj, Sonu and Babloo with iron rod and farsa on his head and thereafter run over by the tractor. Receiving injuries he fell down and died in the hospital. All the accused persons weilding the weapons and opening fire went away from the spot in vehicles and tractors. The complainant and all other injured were taken to the hospital where they are under treatment. After investigation charge-sheet was submitted exonerating the revisionists-accused. During course of trial three witnesses were examined by the prosecution. Thereafter, an application under section 319 Cr.P.C. was moved by the prosecution with averments that FIR was lodged by Mahesh Chandra against 16 accused persons including Babloo @ Dinesh Singh, Ghanshyam, Shyam Singh, Malkhan Singh, Pawan Kumar and Kanwar Singh. They are also involved in the incident but they are not being tried. The prosecution witness Mahesh, P.W. 1 and Mahendra Singh, P.W. 2 in their statements under section 161 Cr.P.C. and also in their deposition before the court have stated about the complicity of the aforesaid accused in the incident and there is sufficient evidence against them. A prayer was made to summon them under section 319 Cr.P.C. The learned trial court after hearing the parties by the impugned order has allowed the aforesaid application and has summoned the revisionists-accused.

Learned counsel for the revisionists contended that initially 16 accused persons were implicated by name in the FIR. During investigation the name of another accused Gyani was introduced as the main accused and the role of running over Ishwar Singh by tractor was assigned to him while in the FIR Gyani was not named and no role was assigned to him. No crush injury has been found on the body of Ishwar Singh in the postmortem. In the FIR it is alleged that Ishwar Singh was taken to hospital where he died but during investigation the prosecution changed this version and alleged that Ishwar Singh died on the spot which is major deviation, changing the place of occurrence. During trial the prosecution witnesses have omitted the name of co-accused Jag Prakash, Billoo, Navraj, Sukhpal and Mukesh while their names are specifically mentioned in the FIR as well as in the statements under section 161 Cr.P.C. of the witnesses and even the affidavits filed by them. Learned counsel submitted that the above facts show that prosecution has changed his version time to time and has come-forth with a pick and choose move. It also reflects that the entire prosecution case is nothing but a sham. It is further contended that the Investigating Officer has recorded the statements of number of independent eye witnesses and they have not implicated the revisionists-accused, rather they have stated about their false implication by the prosecution due to enmity and land dispute. Even the injured witnesses Dhan Singh and Karan Singh in their statements under section 161 Cr.P.C. have not supported the prosecution version in respect of the revisionists-accused. They have stated that they have not seen the revisionists-accused, they did not identify them, they have heard about their presence. On the basis of the statements as well as other material on record the Investigating Officer submitted the charge-sheet only against six accused persons namely Sonu, Lekhraj, Abhiraj, Komal, Gajraj and Gyani. The Investigating Officer came to conclusion that there is no conclusive evidence against the revisionists and exonerated them. However, investigation was transferred to the crime branch but no evidence whatsoever was brought forth against the revisionists in particular. It is further submitted that sufficient eye witness testimony has been collected by the Investigating Officer, which establishes that revisionists were not present at the place of occurrence and were not part of the alleged incident. Their names have been brought forth only due to rivalry and in order to wreck vengeance. The version of the FIR is highly improbable. The first informant himself has changed his version from time to time. P.W. 3 Investigating Officer has explained as to on what basis the revisionists were exonerated. After recording testimony of P.W. 2 the first informant with malafide intention to harass and humiliate the revisionists filed application U/s 319 Cr.P.C. The co-accused have filed a detailed objection against it. Learned trial court without considering the grounds of objection in perfunctory manner passed the impugned order. Learned counsel further submitted that the trial court has failed to consider the guidelines of the Apex Court while summoning an accused under section 319 Cr.P.C. as laid down in the case of Hardeep Singh Vs. State of Punjab AIR (1998) SC 3148, Brijendra Singh Vs. State of Rajasthan AIR (2019) SC 2839 and Periya Sami Vs. S. Nalla Samy (2019) 4 SCC 342 and has passed the impugned order in a very lackadaisical manner. The impugned order has been passed only on the basis of reiterated version of the statements under section 161 Cr.P.C. The learned trial court has failed to give reasons as to why exoneration by the Investigating Officer should be denied. The Apex Court has held that to summon an accused under section 319 Cr.P.C. the evidence which has been tested once during the course of investigation should not be the same. There need to be something more, and only then powers under section 319 Cr.P.C. should be exercised. Learned court below has failed to appreciate the settled legal position and in a cursory manner has summoned the revisionists even though no cogent evidence was available. The learned trial court has failed to record the degree of satisfaction required, rather it has observed that a prima facie case is made out which is against the settled principle of law. The impugned order is absolutely illegal. The learned counsel in addition also placed reliance on the following case laws:

1. Sagar Vs. State of U.P. (2022) 6 SCC 389

2. S. Mohd. Ispahani Vs. Yogendra Chaudhary and others (2017) 16 SCC page 226

Learned counsel for the O.P. No. 2 and learned A.G.A. submitted that accused are named in the FIR. There are clear and specific allegations against them showing their complicity in the incident. One person has lost his life while 11 others have suffered injuries. The complainant himself is an injured. He and other injured witnesses have constantly in their statements under section 161 Cr.P.C. have implicated the revisionists accused describing their role in the incident. The Investigating Officer without any cogent reason has exonerated them only on the basis of statement of some so called independent witnesses. It is also contended that Investigating Officer has also collected mobile detail calls which further confirms the presence of the revisionists-accused at the place of occurrence at the relevant point of time but despite of this in collusion with the revisionists-accused the Investigating Officer exonerated them. The two witnesses Mahesh, P.W. 1 and Mahendra, P.W. 2 produced before the trial court are injured witnesses. They have again corroborated the allegations of the FIR and previous statements recorded under section 161 Cr.P.C. They have stated that revisionists-accused were present at the place of occurrence and have participated in the incident. So there is strong and cogent evidence on record on the basis of which the learned trial court has passed the impugned order. Learned counsel also placed reliance on the following case laws:

(i) Manjeet Singh Vs. State of Haryana and others (2021) 0 AIR (SC) 4274

(ii) Kukhpal Singh Khaira Vs. State of Punjab in Criminal Appeal No. 885 of 2019 decided on 5.12.2022

(iii) Sambhaji and others Vs. State of Maharashtra and another 2008 Crl.L.J. 1123

(iv) Rajindra Singh Vs. State of U.P. and another AIR 2007 Supreme Court 2786

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 IO 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 undisputed that the revisionists are named in the FIR. There are specific allegations against them showing their complicity in the incident. On person has died while several others (11 in number) have received injuries in the incident. According to prosecution case the complainant is himself as an eye witness of the incident. He has corroborated the allegations of the FIR in his statement recorded by Investigating Officer during investigation. Injured witnesses have also corroborated the statement of complainant and allegations of FIR implicating the revisionists-accused. Three eye witnesses are also named in the FIR. They have also stated about the presence of revisionists-accused at the place of occurrence. The Investigating Officer has exonerated the revisionists-accused on the basis of statements of other eye witnesses. During trial the complainant and another injured witness have been examined. They have again corroborated the allegations of the FIR showing the complicity of the revisionists-accused in the incident. It is settled law that the testimony of an injured witness is on a high pedestal and can not be ignored or discarded lightly but for cogent reasons. Therefore, the statement of injured witness should be given due weightage in comparison to the statement of other independent eye witnesses recorded by the Investigating Officer and on the basis of which he has exonerated the revisionists-accused. So there is cogent evidence in form of testimony of injured witness. It is made clear that this observation will not influence the trial court in appreciation of evidence at final stage. The other arguments assailed by the learned counsel for the revisionists in respect of contradictions and discrepancies are matter of trial.

The test as laid down by the Apex Court for invoking powers under section 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person the power under section 319 Cr.P.C. should be exercised.  The test to be applied is one which is more than prima facie case, which is applied at the time of framing of charge.

In Rajesh and ors vs.State of Haryana, (2019) 6 SCC 368 wherein informant named 10 persons for attempt to murder of his son and another with specific allegations against all the accused. The Investigating Officer submitted his report U/s 173 (2) Cr.P.C. against four accused only, no challan filed against six accused (appellants). The trial proceeded against four accused only. During trial, P.W.-1 (complainant) and P.W.-2 (injured witness) specifically stated about the overacts by the accused appellants and role played by them. An application for proceeding against them under section 319 Cr.P.C. was allowed by the trial court. The High Court dismissed the revision. The Apex Court held that, "the appellants herein are also named in the FIR, in the deposition before court, P.W. 1 & 2 have specifically stated against appellants and specific roles attributed to them, on the basis of the same, the persons against whom, no charge-sheet is filed can be summoned to face the trial, no error has been committed by the courts below to summon the appellants therein to face the trial in exercise of power U/s 319 Cr.P.C.

So applying the test laid down by the Apex Court on the present set of facts, it is clear that there is strong evidence, than mere probability of the complicity of the accused in the form of testimony of injured witnesses and it pass the test as laid down by the Apex Court 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 led to conviction.

It is correct that the learned court below has used the words prima facie but that can not be a ground to set-aside the impugned order. The learned trial court may not have used the appropriate words but it is clear that it has analysed the evidence and other material on record. It has also considered the legal proposition and thereafter has exercised its power under section 319 Cr.P.C. This court has to judge the correctness, legality and propriety of the impugned order.

The learned trial court has narrated the entire facts, analysed all the materials. Being satisfied about the complicity of the revisionists has summoned them. There is no illegality or infirmity in the impugned order. it needs no interference.

Accordingly, the revision is devoid of merits and is hereby dismissed.

Order Date:- 13.2.2023

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