Suresh Sharma vs State Of U.P. And Another
2023 Latest Caselaw 26302 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:188597
 
Court No. - 84
 
Case :- CRIMINAL APPEAL No. - 6517 of 2023
 
Appellant :- Suresh Sharma
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Sharique Ahmed
 
Counsel for Respondent :- G.A.,Priyanka Devi
 

 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the appellant, learned counsel for the opposite party no. 2 and perused the record.

This appeal has been filed against the order dated 25.05.2023 passed by the Special Judge, SC/ST Act, Kanpur Nagar in Sessions Trial No. 53 of 2015 (State Vs. Veeru Sharma) arising out of Case Crime No. 128 of 2015 under Sections 147, 148, 149, 323, 452, 325, 304 IPC and Section 3(2)(5) SC/ST Act, Police Station Bithoor, District Kanpur Nagar.

By the impugned order dated 25.05.2023 the application under Section 319 Cr.P.C. moved by the first informant Amrit Lal was allowed and Suresh Sharma and Sanjay Singh Kamal were summoned to face trial. This appeal has been preferred on behalf of Suresh Sharma only.

As per facts of the case, FIR appended at page-55 of the paper book, was lodged on 12.03.2015 at 0.15 hours at police station Bithoor, District Kanpur Nagar by Amrit Lal regarding incident dated 11.03.2015 at 8.00 A.M. with the allegation that when on 10.03.2015 the first informant was coming back from Kanpur to his house in the way his son Amit informed him telephonically that Rajendra s/o Anantu, Sanjay s/o Putilal, Veersingh s/o Rajendra and Kanhaiya Lal s/o Ram Narayan were urinating on the wall of the house of the first informant and when they were forbade they were inclined to fight, they thrashed the family members of the first informant by entering his house. When the first informant reached ahead of Dambarpurva, all these four persons assaulted him also. The first informant sustained injuries on his right eye and left rib. On his hue and cry he was saved by the local persons and when he reached at the police station neither his report was lodged nor he was medically examined. By his relatives he was taken to Osila and thereafter to Kalyanpur Private Nursing Home.

When in the morning at 7.30 A.M. he again went to the police station for lodging FIR his report was not lodged in the police station there he got an information that at 8.00 A.M. Suresh Sharma, Veeru Sharma, Rajendra, Sanjay, Lal Singh, Rajan, Kanhaiya Lal, Veer Singh, Ramshree along with their companions attacked at the house of the first informant with baton, stick, iron rods and pistols and thrashed Raghunath, Amit, Pawan, Anuj and Sunita.On the information police came and admitted the injured persons in Rama Dental hospital from where the injured persons were referred to Hailat hospital. No action was taken by the police. At 10.30 P.M. due to the injuries sustained by Raghunath, he died in the hospital.

For the third time at 4.00 P.M. on 11.03.2025 again, Geeta w/o Pawan and Archana w/o Raghunath were also thrashed inside the house by these accused persons. Both of them sustained injuries. When the report was not registered, an application was moved to the Senior Superintendent of Police, Kanpur Nagar. He asked the first informant to file his report at concerned police station.

During investigation the Investigating Officer did not find any evidence against Suresh and Sanjay, hence, these two persons were exonerated by the Investigating Officer. The charge sheet was filed against the rest of the accused persons under Sections 147, 148, 149, 323, 452, 325, 304 IPC and Section 3(2)(5) SC/ST Act. Later on, the statements of PW 1- first informant, PW 2 - Pawan and PW 3- Anuj and PW 4 - Amit, all the three injured sons of the first informant were recorded. After their cross examination the first informant moved an application under Section 319 Cr.P.C. Allowing this application the present appellant along with one other accused person was summoned to face trial under Sections 147, 148, 149, 323, 452, 325, 304 IPC and Section 3(2)(5) SC/ST Act vide impugned order dated 25.05.2023.

It is the admitted fact that the first informant Amrit Lal and accused Rajendra are the real brothers. Accused Ramshree is the wife of accused Rajendra and accused Lal Singh and Veer Singh are the sons of Rajendra. Kanhaiya, Sanjay, Veeru and Suresh are said to be the companions of accused Rajendra. Deceased Raghunath is said to be the son of the real sister of the first informant Amrit Lal and accused Rajendra. In the incident seven persons are said to be injured. Out of these seven injured, Raghunath is said to have succumbed to the injuries sustained during the incident.

It is argued by the learned counsel for the appellant that in the FIR no specific role has been assigned to the appellant. He is the husband of village Pradhan. He was not present on the spot at the time of incident. At that time he was present at Shobhan Mandir looking after the construction of the boundary wall. Call details of his mobile also confirm this fact. The evidence collected by the Investigating Officer has not been discussed by the trial court in the order. It has also not been noted that how the evidence collected by the Investigating Officer during investigation was wrong. In the case diary there are positive statements of the witnesses Neeraj Bajpai, Manoj Kumar, Rakesh Kumar and Lal Singh. They have clearly stated that the appellant was not present in the incident rather he was present at Shobhan Mandir at the time of incident. Placing before the court the judgement, Juhru and others Vs. Karim and another, 2023 LiveLaw (SC) 128, attention of the court is drawn towards para-13 of the judgement, wherein the findings of the Apex Court in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92 has been referred 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. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C."

The attention of the court is also drawn towards para-8 of the judgement in Sagar Vs. State of U.P. and another, 2022 LawSuit (SC) 284, wherein the scope of Section 319 Cr.P.C. was shown to be well settled by the Constitution Bench of the Apex Court in Hardeep Singh (supra) as under:-

"105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary 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."

Attention of the court is further drawn towards judgment in Brijendra Singh and others Vs. State of Rajasthan, 2017 (100) ACC 601(Supreme Court) wherein as per the facts of that case the Investigating Officer found the appellants in Jaipur City and the incident took place in Kanaur at a distance of 175 kms, the presence of the appellant at the place of occurrence was found to be doubtful and plea of alibi was believed by the Investigating Officer and the Apex Court found that in the case like that, where the presence of the accused was found 175 kms. away from the place of occurrence and plethora of evidence was collected by the Investigating Officer, during investigation, the trial court was 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 the appellants complicity has come on record and when no satisfaction was recorded by the trial court the appeal of the appellants was allowed and the order allowing the application under Section 319 Cr.P.C. was set aside.

On the basis of above judgements, it is argued by the learned counsel for the appellants that the Investigating Officer recorded oral statements of Neeraj Bajpai, Manoj Kumar, Rakesh Kumar Savita, Kunwar Singh, Suresh Chandra, Chhunnu Lal, Lal Singh, Yogendra Nath Tiwari, Naresh Chandra Mishra, Siyaram Lohar and Shrawan Kumar Bajpai, who clearly stated in their statements that the appellant was not present at the spot at the time of incident rather he was present at Shobhan Mandir. The CDR also shows his present at the time of incident at Shobhan Mandir. The trial court has not noted its satisfaction in the order that how he found the evidence collected by the Investigating Officer to be non-satisfactory in comparison to the statements of the first informant and the witnesses recorded in the trial court and how the trial court found the evidence more than prima facie case as found at the time of framing of charge. It is further argued that mere naming a person in the statement is not enough to summon him to face trial. The court has not recorded its satisfaction regarding reasons in respect of complicity of the appellant. Being his brother Veeru to be the friend of accused Rajendra the appellant is falsely implicated. Hence, prayer is made accordingly.

Learned counsel for the opposite party no. 2 opposed the prayer and submitted that in the incident seven persons were injured and one of the injured succumbed to the injuries the next day. The first informant and all the injured persons have named the present appellant as a person involved in the incident. PW 2 injured Pawan has specified the role of present appellant as a person assaulting with iron rod on his head. In fact, the niece of the present appellant had solemnised love marriage with Pawan, the injured son of the first informant, so the present appellant participated in the offence. The presence of the appellant at Shobhan Mandir is shown at 7.30 A.M. while the incident is said to have taken place at 8.00 A.M. There is distance of about 3-4 kms. only between Shobhan Mandir and place of incident. Otherwise also if the mobile of the appellant is left at Shobhan Mandir and the appellant commits an offence at another place, in the call detail report the presence of the appellant would be shown at Shobhan Mandir only according to mobile left there. Witnesses Neeraj Bajpai, Rakesh Kumar Savita, Yogendra Nath Tiwari, Naresh Chandra Mishra, Siyaram Lohar, Shrawan Kumar Bajpai and have stated in their statements that at the time of incident the appellant was not present at the spot. Witnesses Manoj Kumar Pal, Lal Singh, Kunwar Singh, Suresh Chandra, Chhunnulal have asserted the presence of the appellant at Shobhan Mandir at the time of the incident. All these witnesses did not described the incident in their statements. They have not stated as to what happened at the spot and who was present on the spot. Thus, these statements cannot be said to be reliable. On the basis of on oath statement of the first informant and all the injured persons the participation of the present appellant in the incident is said to be proved.

Learned counsel for the opposite party no. 2 drew the attention of the court towards single bench judgement of this court in Krishnapal and another Vs. State of Uttar Pradesh and another, 2023 0 Supreme (All) 1098 and it is argued that regarding plea of alibi the evidence cannot be accepted at the stage of consideration of application under Section 319 Cr.P.C. The merits of the evidence could be appreciated only during the course of trial by cross-examination of the defence witnesses taking the plea of alibi.

From perusal of the record, it is found that the FIR, which was lodged on the next day, name of the present appellant is very much there as a person involved in the incident. In the statement under Section 161 Cr.P.C. of the first informant and injured persons also the name of present appellant as an accused involved in the incident is very well mentioned.

So far as the statements of Neeraj Bajpai, Rakesh Kumar Savita, Yogendra Nath Tiwari, Naresh Chandra, Siyaram Lohar and Shrawan Kumar Bajpai, Kunwar Singh, Suresh Chandra, Chhunnu Lal are concerned, all these witnesses only stated that the present appellant was not present at the spot at the time of incident. Witnesses Manoj, Lal Singh, Kunwar Singh, Suresh Chandra and Chhunnu Lal have stated that on the date of incident, 11.03.2015 from 7.30 A.M. to 10.00 A.M. Suresh Sharma was along with them in Shobhan Mandir. None of these witnesses have described the rest of the facts about incident that how the incident occurred and who was involved in the incident and what was the actual incident, whereas the first informant and his three injured sons have clearly stated from the very first day of FIR to their statements under Section 161 Cr.P.C. and the statements in the court that the present appellant was involved in the incident. Though, except injured Pawan no one has specified the role of present appellant but if we go through the FIR in that FIR also the general role is assigned to all the accused persons. The injury reports of all the injured persons are appended with the supplementary affidavit. Admittedly, one person has died from the prosecution side in the incident. Death of Raghunath in the incident is not denied. In the post mortem report cause of death of Raghunath is found to be head injury. Certainly in comparison to the statement of the witnesses under Section 161 Cr.P.C. the statements of first informant and three injured persons recorded in the court on oath would be considered more reliable.

So far as the finding of the Apex Court in Brijendra Singh (supra) regarding plea of alibi is concerned, the facts of that case are quite different from the facts of the present case. In that case the presence of the appellant was shown to be 175 kms. away from the place of occurrence and the court found plethora of evidence collected by the Investigating Officer in this regard while in the present case apart from mere statement of the witnesses under Section 161 Cr.P.C. and call details no other evidence is on record. The statements of the witnesses only claim the absence of the appellant on the place of occurrence and the witnesses have not described the incident that took place at the spot, so their statements would certainly be a weaker type of evidence in comparison of the statements of the prosecution witnesses, who have been put to the cross examination. Call detail report of the mobile of the appellant shall be proved at the time of defence evidence.

Hence, in the opinion of the court, though, the trial court has not mentioned its satisfaction in the order, which is needed as per judgement of the Apex Court in Hardeep Singh (supra) but as per above discussion, it is found that on the basis of statements on oath of the witnesses and the fact that plea of alibi would be decided at the time of evidence, more than a prima facie case than at the time of framing of charge can be said to be made out against the appellant. Thus, the summoning of the appellant to face trial vide order dated 25.05.2023 is found to be proper. The summoning of the appellant vide impugned order does not suffer from any infirmity or illegality. Hence, the order needs no interference.

The appeal is hereby dismissed.

Order Date :- 26.9.2023

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