Narendra Kumar Gupta And Another vs State Of U.P. And Another
2023 Latest Caselaw 7756 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 90
 

 
Case :- CRIMINAL REVISION No. - 978 of 2023
 

 
Revisionist :- Narendra Kumar Gupta And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Santosh Kumar Giri
 
Counsel for Opposite Party :- G.A.,Vikrant Gupta
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

Heard learned counsel for the revisionists, learned counsel for the O.P. No. 2 as well as learned A.G.A. for the State.

This criminal revision has been filed against the order dated 3.2.2023 passed by Additional Session Judge, Court No. 5, Rampur in S.T. No. 51 of 2019 (State Vs. Neha Gupta) Crime No. 744 of 2018, under section 302, 323, 504 IPC, P.S. Shahabad, District Rampur. By the impugned order learned court below on an application of complainant/prosecution filed under section 319 Cr.P.C. has summoned the revisionists to face trial with co-accused for offence under section 302, 323 and 504 IPC.

The FIR of this case was lodged by Abhinav Gupta on 21.10.2018. It is alleged that his marriage was solemnized with Neha Gupta one year and a half earlier. There was some dispute between them. His wife used to abuse his mother and also insist for separate living. She has also committed marpit with the complainant. She has left the house one month and half earlier and started to live at her Mayaka. Thereafter, she lodged a false FIR at P.S. Kotwali Shahabad. Yesterday on 20.10.2018 at about 2:00 p.m. Neha Gupta with case incharge Sunder Lal came at his house. Neha Gupta started to hurl abuses and tried to assault the complainant. After sometime Sunder Lal went away but Neha Gupta remained there. At about 7:00 p.m. her mother Kiran Devi, father Narendra and brother Anand also reached there. They all started to commit marpit with complainant and his mother and with intention to kill his mother Anand poured kerosene from a cane on the mother of the complainant and set her on fire. To rescue her the complainant also suffered burn injuries. The complainant made a phone call at 108 and 100 numbers. Meanwhile the neighbour Monu also came at the spot and they took the mother of the complainant on Ambulance to Shahabad hospital from where she was referred to District Hospital Rampur and thereafter referred to Bareilly where she is under treatment. The FIR was registered under section 307, 323, 504 IPC. During course of treatment the statement of Asha Devi the injured was recorded and later on she died due to burn injuries. The Investigating Officer after completing investigation submitted charge-sheet only against Neha Gupta and exonerated the remaining named accused of the FIR. The complainant/prosecution moved an application under section 319 Cr.P.C. to summon Kiran Devi, Narendra and Anand to face trial with co-accused. The learned court below by the impugned order has allowed the application.

Learned counsel for the revisionists mainly contended that according to prosecution Monu Sharma is the eye witness. His statement was recorded by the I.O. under section 161 Cr.P.C. and he has not implicated the revisionists-accused. He has assigned the role of commission of offence to Neha Gupta only. An other independent witness Vishesh Kumar was also examined under section 161 Cr.P.C. and he has also not implicated the revisionists. It is further contended that during trial examination in chief of Abhinav Gupta was recorded but his cross-examination was pending meanwhile another witness Pranjal Gupta was produced. There are other public witnesses and they are yet to be produced but the prosecution moved application under section 319 Cr.P.C. on which the learned court below has passed the impugned summoning order without appreciating the material on record. It is also contended that there are many contradictions in the statement of P.W. 1 and P.W. 2. P.W. 2 has again in his statement before the trial court has not implicated the revisionists. The learned trial court on the basis of insufficient evidence has passed the impugned summoning order which is perverse and illegal. It is also contended that the trial court has failed to appreciate that I.O. after recording statement of witnesses under section 161 Cr.P.C. did not find complicity of revisionists in the alleged offence and submitted charge-sheet only against Neha Gupta the wife of the first informant. The first informant appeared as P.W. 1 and has wrongly disclosed the names of the revisionists. The allegations against the revisionists are general in nature. It is further contended that power under section 319 Cr.P.C. can be exercised by the court if it appears from the evidence that any person not being the accused had committed any offence for which such persons could be tried together with the co-accused but learned court below while summoning accused has not disclosed the reasons of his satisfaction. Even according to prosecution witnesses no offence is made out against the revisionists. The impugned summoning order is illegal, arbitrary and against the provision of law. Lastly it is contended that in a series of judgments it has been held that power to summon the accused under section 319 Cr.P.C. is an extraordinary power conferred on the court and it should be exercised very sparingly. In the present case prosecution witnesses have not supported the prosecution version as such trial court has acted in excess of its jurisdiction and impugned order deserves to be quashed.

Learned counsel for the O.P. No. 2 and learned A.G.A. contended that the revisionists are named in the FIR. There are specific allegations against them that they after pouring kerosene set Asha Devi the mother of complainant on fire. The complainant has also suffered injuries in this incident. The dying declaration of the deceased Asha Devi was also recorded on 21.11.2018 in which she has categorically stated that her daughter in law, her parents and brother set her on fire pouring kerosene on her. Abhinav Gupta P.W. 1 is complainant. He in his statement before the trial court has again corroborated the previous statement recorded under section 161 Cr.P.C. implicating the revisionists-accused so there is sufficient evidence in form of testimony of injured witness on the basis of which summoning order has been passed. There is no illegality in the impugned summoning order.

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

It is established from material on record that revisionists are named in the FIR. There are specific allegations against them that they after pouring kerosene on the mother of the complainant set her on fire. It is also undisputed that complainant has also suffered injuries in rescuing his mother during course of incident. So the complainant is an eye witness/injured witness of the incident. He has fully corroborated the allegations of the FIR and has implicated the revisionists accused. The dying declaration of the deceased Asha Devi further implicates the revisionists but the I.O. after recording statements of some witnesses and without any cogent and proper reason has ignored the dying declaration which is most important piece of evidence. The role of I.O. is highly doubtful and it appears that for some extraneous reasons he has exonerated the revisionists-accused although they were named in the dying declaration. Before the trial court Abhinav Gupta P.W. 1 who is complainant as well as injured has categorically stated about the implication of the revisionists-accused assigning them the role of setting on fire the mother of the complainant. So there is sufficient and cogent evidence on record which establishes the complicity of the revisionists-accused at this stage and it satisfies the standard of evidence required for exercising the powers under section 319 Cr.P.C.

So applying the test as laid down by the Apex Court on the present set of facts it is clear that there is strong evidence against the revisionist accused. The evidence and other material on record pass the test as laid down by the Apex Court which is more than a prima facie case as exercised at the time of framing of charge, but short of satisfaction to the extent that the evidence if got unrebutted, would lead to a conviction.

The learned trial court has passed a detailed and reasoned order narrating the entire facts, the averments of the application, and objections, the evidence available on record, and the proposition of law on the point and after analyzing it has come to the conclusion that there is sufficient ground to summon the revisionists accused and has allowed the application. The impugned order is just and proper. There is no illegality or infirmity in the impugned order. There is no ground to interfere in the impugned order. This criminal revision is liable to be dismissed.

This criminal revision is, accordingly dismissed.

The S.P./S.S.P. concerned will inquire in the matter about the conduct of the Investigating Officer and may take suitable action. Learned A.G.A. will communicate the order to the concerned S.P./S.S.P.

Order Date :- 17.3.2023

Masarrat