Haripal And 2 Others vs State Of U.P. And Another
2023 Latest Caselaw 14552 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:99050
 
Court No. - 90
 

 
Case :- CRIMINAL REVISION No. - 1182 of 2023
 

 
Revisionist :- Haripal And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Revisionist :- Lok Nath Shukla,Yatindra Dubey
 
Counsel for Opposite Party :- G.A.,Mohan Kant Baghel
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

Sri Lok Nath Shukla, learned counsel for the revisionist, learned AGA for the State and Sri Mohan Kant Baghel, learned counsel for the opposite party no.2 are present.

Counter affidavit filed by learned counsel for the opposite party no.2 is taken on record.

This criminal revision has been filed against the order dated 11.10.2022 passed by learned Additional Sessions Judge/ Special Judge, E.C. Act, Etah in S.T. No.413 of 2013 (State Vs. Virendra Singh and others). By the impugned order, the learned Court below has allowed application under Section 319 Cr.P.C. filed by the complainant/ prosecution and has summoned the revisionists, namely, Haripal, Shivraj and Gaya Singh to face trial for offence under Sections 304/34, 323/34 I.P.C.

The F.I.R. of this case was lodged by complainant, namely, Harish Chandra alleging therein that on 14.09.2012, the complainant with his brother, namely, Deshraj was returning from the Court. At about 6:15 P.M. when they deboarded bus at power house and were coming to their home then the accused persons, namely, Virendra Singh, Lalaram, Haripal, Gaya Singh and Shivraj with common intention attacked the complainant, Harish Chandra and his brother, Deshraj. A fire was shot at Deshraj, thereafter, another fire was shot by Virendra Singh and Gaya Singh. Deshraj, brother of the complainant became injured and fell down then Shivraj Singh, Lalaram and Haripal holding iron rod came down from tractor and started assaulting Deshraj with intention to kill him. The persons who were coming to the village also saw the incident. The complainant and his nephew, Nanhey also saw the incident and they identified the accused persons. Deshraj, brother of the complainant was medically examined. Investigating Officer after completing the investigation submitted the charge-sheet only against Virendra Singh and Lalaram. During trial, complainant, Harish Chandra as P.W.1 and Nanhey as P.W.2 were examined. Thereafter, an application under Section 319 Cr.P.C. was filed by the prosecution which has been allowed by the impugned order.

The learned counsel for the revisionists contended that the revisionists-accused are innocent and have been falsely implicated due to village rivalry. The injured Deshraj was medically examined. All his injuries are lacerated wounds and there is no firearm injury. The Investigating Officer has recorded further statement of the injured Deshraj in which he has categorically stated that the revisionists-accused have been named by his brother in the F.I.R. because they take lead in the disputes of village and revisionists-accused were not present at the place of occurrence. The learned counsel further submitted that the learned trial Court has not considered the further statement of the injured, Deshraj while passing the impugned order. It is further submitted that injured, Deshraj has died natural death two years earlier. Hence, it is not possible for the prosecution to produce him before trial Court now. It is next contended that the learned trial Court has only considered the statements of P.W.1 and P.W.2 which are verbatim reproduction of their previous statements recorded during course of investigation. There are material contradictions in the statement of opposite party no.2 and the eye-witness Nanhey alias Rajneesh. In their examination-in-chief, both witnesses have showed their unawareness about the incident, place of incident and weapon used in the incident. The impugned order is arbitrary and illegal and has been passed against the settled principles of law and suffers from legal infirmities, therefore, it is liable to be set aside. The learned counsel placed reliance on the case of Brijendra Singh and others Vs. State of Rajasthan (2017) 0 Supreme (SC) 411 the learned counsel quoted Para no.15 of the judgment which is reproduced below:

"This record was before the trial Court. Notwithstanding the same, the trial Court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial Court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial Court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial Court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial Court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny."

The learned counsel also placed reliance on the case of Maidan Singh Vs. State of U.P. in Criminal Revision No.3498 of 2021 decided on 06.07.2022 by coordinate Bench of this Court. The learned counsel submitted that the case of the revisionists is squarely covered with the case law of Brijendra Singh (supra).

The learned counsel for the opposite parties contended that the revisionists-accused are named in the F.I.R. with the specific allegations that they assaulted Deshraj. The injured Deshraj in his first statement recorded by the Investigating Officer under Section 161 Cr.P.C. has fully corroborated the allegations of the F.I.R. and has stated that the revisionists-accused were involved in the incident and they also assaulted. The complainant, Harish Chandra and Nanhey are eye-witnesses, they have also supported the prosecution version and have stated about the involvement and role of the revisionists-accused. The Investigating Officer without any rhyme and reason just to benefit the revisionists-accused has recorded further statement of injured Deshraj on his own will so the second statement of Deshraj recorded by the Investigating Officer is not reliable. It is further contended that during trial, the complainant, Harish Chandra- P.W.1 and another witness Nanhey- P.W.2, both eye-witnesses, have again corroborated the allegations of the F.I.R. and stated about the participation of revisionists-accused in the incident. The learned trial Court has found that there is sufficient evidence. The impugned order is detailed and reasoned one and there is no illegality in the impugned order.

It is undisputed that the revisionists-accused are named in the F.I.R. and there are specific allegations against them in the F.I.R. It is alleged that revisionist-accused, Gaya Singh opened fire on Deshraj, the brother of the complainant. There are further allegations against revisionists-accused, Shivraj Singh and Haripal of assaulting Deshraj with iron rods. Deshraj has suffered injuries in the incident. His medical examination report is part of the record and six visible injuries are noted in it. Supplementary injury reports are also part of the record. According to the version of the F.I.R., complainant, Harish Chandra and Nanhey, son of Deshraj are two eye-witnesses of the incident. Complainant, Nanhey and injured Deshraj in their statements recorded by the Investigating Officer during course of the investigation have supported the prosecution version and stated about the participation of the revisionists-accused in the incident. It also appears that the Investigating Officer without assigning any reason has recorded further statement of Deshraj. No explanation is mentioned in the case diary in this regard that why Investigating Officer has recorded further statement of the injured Deshraj. In further statement of injured Deshraj, it has come that revisionists have been falsely named by the complainant and they were not present on the spot. On this basis, the Investigating Officer has exonerated the revisionists-accused. It will not be appropriate to make any comment on the conduct of the Investigating Officer at this stage. During trial, complainant, Harish Chandra and Nanhey who are eye-witnesses of the incident have again supported the prosecution version and have stated about the role played by the revisionists-accused in the incident. Both the witnesses have categorically stated that the revisionists-accused have participated in the commission of the crime. One of the accused open fired on Deshraj while the other two accused assaulted him with iron rods causing him serious injuries. The injured Deshraj has died so his statement recorded under Section 161 Cr.P.C. will be relevant under Section 32 of the Evidence Act.

In order to exercise the powers under Section 319 Cr.P.C., the Court will have to objectively satisfy itself with the evidence warrant that a person not brought up for trial should be required to face the trial. In the case of Brijendra Singh and others Vs. State of Rajasthan (supra), the Apex Court has made the following observations:-

"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."

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 that 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 had 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 stronger evidence than mere probability of the complicity of the accused in the form of testimony of two eye-witnesses and it passes 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. Further, the manner in which the revisionists have been exonerated by the Investigating Officer is also improper.

In the case of Brijendra Singh Vs. State of Rajasthan (supra) cited by the learned counsel for the revisionists, there was plethora of evidence collected by the Investigating Officer during investigation regarding alibi of the accused and this fact distinguished this case from the case laws of Brijendra Singh Vs. State of Rajasthan (supra).

In the impugned order, the learned trial Court has narrated the entire facts and material on record and has critically analyzed all these materials. Learned trial Court has recorded its satisfaction about the complicity of the revisionists and, therefore, has summoned them. The order is a detailed and reasoned one which is just and proper. There is no illegality or infirmity in the impugned and it need no interference.

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

Order Date :- 9.5.2023//SP/-