Guddu Hasan vs State Of U.P. And Another
2023 Latest Caselaw 6954 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 14.2.2023
 
Judgment delivered on 3.3.2023
 

 
Court No. - 89
 

 
Case :- CRIMINAL REVISION No. - 5250 of 2022
 

 
Revisionist :- Guddu Hasan
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Syed Wajid Ali
 
Counsel for Opposite Party :- G.A.,Rajesh Kumar Mishra
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

Heard learned counsel for the revisionist, 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 3.12.2022 passed by Additional Session Judge/Special Judge, SC/ST (Prevention of Atrocities) Act, Rampur in S.T. No. 40 of 2018 (State Vs. Jabul Hasan and others) Crime No. 176 of 2016, under section 147, 148, 149, 323, 307, 504, 506 IPC and 7 Criminal Law Amendment Act, P.S. Bhot, District Rampur. By the impugned order the learned trial court in exercise of powers under section 319 Cr.P.C. on application of prosecution has summoned the revisionist-accused Guddu Hasan to face trial for offence under section 147, 148, 149, 323, 307, 504 and 506 IPC and Section 7 Criminal Law Amendment Act.

The complainant (O.P. No. 2) Idris Ahmad lodged an FIR on 23.6.2016 against 12 named and some unknown persons alleging that on 23.6.2016 at about 8:00 a.m. due to previous enmity Guddu Hasan, Jabul Hasan, Jabir, Taufeeq, Rashid, Nasir, Saghir Ahmad, Subhan, Haseen Ahmad, Munawwar, Kallan and another Kamal Hasan holding knives, swords and country made pistols came and surrounded the complainant near the parked trolly at the house of Chhannoo. Hurling abuses they started to assault the complainant with weapons in their hands. The complainant to save his life run towards his house, then all the accused chased him and entered into his house and assaulted the complainant, his father Mohd. Ahmad, uncle Mohd. Hasan, Mahboob and Shakool with intention to kill them. Taufeeq with intention to kill opened fire on Kamaljeet. They all brutally assaulted and injured them. Witnesses Safi Ahmad, Taufeeq and many others came there. After investigation charge-sheet was submitted against 11 accused named in the FIR excluding Guddu Hasan the revisionist-accused. During trial complainant Idris Ahmad, P.W. 1 was examined. Thereafter, an application under section 319 Cr.P.C. was moved by the prosecution to summon Guddu Hasan. The learned trial court by the impugned order has allowed the application and summoned Guddu Hasan the revisionist to face trial.

Learned counsel for the revisionist contended that the statement of first informant was recorded by the Investigating Officer in which he has repeated the FIR version. The complainant got himself examined on 23.6.2016 and the doctor noted one lacerated wound and two abrasions. The other injured Shakool Nabi, Mahboob Hasan and Mohd. Ahmad were also examined. There is no firearm injury to any injured. Kadeer Alam, Rais Ahmad, Aley Hasan, Munawwar Shah, Jameel Ahmad, Jumma and Akbar Ali had given their affidavits to the effect that at the time of occurrence the revisionist was not present in the village. The Investigating Officer recorded their statements under section 161 Cr.P.C. On the basis of evidence the Investigating Officer exonerated the revisionist and submitted charge-sheet against other accused persons. The trial court did not take into consideration the statements recorded under section 161 Cr.P.C. of the witnesses and other evidence available on record and merely on the examination-in-chief of the O.P. No. 2 which does not inspire confidence rather establishes a case of deliberate improvement by making contradictory statements which frustrate the prosecution case. There was no occasion for trial court to summon the revisionist. In the FIR it is alleged that Taufeeq was armed with country made pistol and he fired at Kamaljeet while rest of the accused including the revisionist are said to have been armed with knives swords and Tamancha surrounded him and they assaulted him with their respective weapons causing fire arm injuries. In his statement under section 161 Cr.P.C. the informant has repeated the same version but in his examination-in-chief the informant P.W. 1 has stated totally contradictory statement which does not inspire confidence. There is contradiction and improvement in the oral statement of first informant. It is further contended that brother of the revisionist Mohd. Jabir lodged an FIR Crime No. 175 of 2016, under section 147, 148, 149, 323, 506, 307 IPC and 7 Criminal Law Amendment Act at P.S. Bhot, District Rampur on 23.6.2016 at about 8:30 a.m. with regard to an incident dated 23.6.2016 at about 8:00 a.m. against O.P. NO. 2 and others. From the side of the revisionist Kamal Singh, Ali Hasrat, Kamal Hasan and Sameer Ahmad have received injuries. The Investigating Officer submitted charge-sheet against O.P. No. 2 and others only under section 147, 148, 149, 323, 504, 506 IPC. Since the Investigating Officer has not submitted charge-sheet under section 307 IPC an application under section 216 Cr.P.C. was moved by Jabir Hasan which was allowed vide order dated 3.12.2022 and the accused persons of that case have been summoned to face trial under section 307 IPC also. Learned counsel further contended that it was incumbent upon the trial court to have taken into consideration the entire material available on record and then form an opinion that on the basis of evidence the revisionist can be convicted. Thus, the impugned order is wholly against the law laid down by the apex court as well as this court in catena of decisions relating to summoning under section 319 Cr.P.C. It is settled law that power under section 319 Cr.P.C. is to be exercised very sparingly and under compelling circumstances. The trial court without application of judicial mind and considering the law laid down by the Apex Court and this court in a routine and mechanical manner has passed the impugned order.

Learned counsel placed reliance on the following case laws:

1. Brijendra Singh and others Vs. State of Rajasthan (2017) 7 Supreme Court Cases 706

2. Labhuji Amratji Thakor and others Vs. State of Gujarat and another 2018 0 Supreme (SC) 1147

3. Periyasami and others Vs. S. Nallasamy 2019 LawSuit (SC) 790

Learned counsel for the O.P. No. 2 and learned A.G.A. submitted that revisionist is named in the FIR. There are allegations against him. He was very much present at the place of occurrence and took part in the incident. The complainant is himself injured. In his statement under section 161 Cr.P.C. he has corroborated the allegations of the FIR. The other injured witnesses have also supported the prosecution story. The Investigating Officer only on the basis of some affidavits, recorded their statements under section 161 Cr.P.C. and on its basis exonerated the revisionist-accused in improper and unlawful manner. During trial the complainant has been examined and he has again stated about the complicity of the revisionist-accused in the incident. So there is sufficient evidence against the revisionist. The learned trial court in a proper manner has exercised the jurisdiction vested in him by virtue of section 319 Cr.P.C. There is no illegality or infirmity in the impugned order.

The The Constitution Bench of the Apex Court in the case of Hardeep Singh Vs. State of Punjab AIR 2014 Supreme Court 1400 has laid down the law for exercising the 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."

The revisionist and 11 others are named in the FIR. There are specific allegations against the revisionist that he along with co-accused holding knives, swords and country made pistols surrounded the complainant Idris Ahmad and started to assault him hurling abuses. It is further alleged that the complainant ran towards his house and all the accused persons entered into his house and assaulted Mohd. Ahmad father of the complainant, Mohd. Hasan uncle of the complainant, Mahboob and Shakool. The complainant and five others Mohd. Ahmad, Mohd. Hasan, Mahboob, Shakool and Kamaljeet have suffered injuries in this incident. Their medico legal report is part of the record. In the FIR Safi Ahmad and Taufeeq son of Ajaz are named as eye witnesses of the incident. Complainant Idris Ahmad, other injured Kamaljeet and Taufeeq eye witness named in the FIR in their statements under section 161 Cr.P.C. have fully corroborated the allegations of the FIR. The Investigating Officer has submitted charge-sheet exonerating the revisionist. To exonerate the revisionist, Investigating Officer has based his finding on the affidavits and statements of Qadeer Alam, Rais Ahmad, Aley Hasan, Munawwar Shah, Jameel Ahmad, Jumma and Akbar Ali. Some of these witnesses have stated that revisionist Guddu Hasan had gone to Vilaspur for the purpose of printing the invitation cards of the marriage of the daughter of Rais Ahmad while some of the witnesses have simply denied his presence at the time of occurrence. During trial complainant Idris Ahmad has been examined as P.W. 1. He is also an injured. He has implicated the revisionist-accused with specific averments that revisionist was armed with country made pistol and took part in the assault. The contradictions, discrepancies or improvement as pointed out by the learned counsel for the revisionist is a matter of trial which can be appreciated after entire evidence. 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. The statement of injured witness should be given due weightage in comparison to the statement of other witnesses recorded by the Investigating Officer on the basis of which he has exonerated the revisionist-accused. Except the oral statements of some witnesses no substantive evidence has been collected by the Investigating Officer regarding alibi of revisionist-accused. So the material and evidence on the basis of which the Investigating Officer has exonerated the revisionist is very week. In comparison to it the testimony of injured witness is of a grater value and it can not be discarded at this stage for reason that during investigation some witnesses have deposed that he was not present at the place of occurrence.

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.

The test as laid down by Apex Court for invoking powers under section 319 Cr.P.C. is one which is more than prima facie case, which is applied at the time of framing of charge. Applying the test laid down by Apex Court on the present set of facts it is clear that there is strong evidence than mere probability of the complicity of the revisionist in the form of testimony of injured witness and it pass the test as laid down by 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.

Learned counsel for the revisionist has relied on the citation of Labhuji Amratji Thakor & others Vs. State of Gujarat and another 2018 0 Supreme (SC) 1147, Periyasami and others Vs. S Nallasamy 2019 LawSuit (SC) 790. The facts of both the cases are different. In the case of Labhuji Amratji (Supra), the accused was not named in the FIR. He was also not named by the victim in his statement. On the aforesaid facts the apex court held that application under section 319 Cr.P.C. has rightly been rejected. While in the case of Periyasami (Supra) the name of 11 persons were disclosed in the FIR but neither in the FIR nor in the statement recorded under section 161 Cr.P.C. name of the accused-appellant or any other description was given to identify them. On these facts the apex court held that High Court was not justified in allowing the application under section 319 Cr.P.C. As discussed above in this case the revisionist is named in the FIR. There are specific allegations against him. The complainant himself is an injured and other injured witnesses and eye witness named in the FIR have all in their statement under section 161 Cr.P.C. have implicated him. The complainant/injured Idris Ahmad P.W. 1 in his deposition before the trial court has reiterated his previous statement implicating the revisionist-accused. So there is sufficient and cogent evidence on record against the revisionist-accused which is more than prima facie as exercised at the time of framing of charge.

The learned trial court has passed the detailed and reasoned order. It has narrated the entire facts, evidence and other material available on record, the proposition of law on the point and thereafter, has recorded the finding that there is sufficient ground to summon the revisionist-accused in exercise of powers under section 319 Cr.P.C. There is no illegality or infirmity in the impugned summoning order. It is just and proper.

The revision is hereby dismissed.

Order Date:- 3.3.2023

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