Raghunath vs State Of U.P. And 2 Others
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Allahabad High Court

Raghunath vs State Of U.P. And 2 Others on 23 May, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:95272
 
Court No. - 77
 

 
Case :- CRIMINAL REVISION No. - 4712 of 2023
 

 
Revisionist :- Raghunath
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Revisionist :- Ravi Shankar Yadav
 
Counsel for Opposite Party :- G.A.,Yadavendra Dwivedi
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Ravi Shankar Yadav, the learned counsel for revisionist, the learned A.G.A. for State-opposite party 1 and Mr. Yadavendra Dwivedi, the learned counsel representing the prospective accused i.e. opposite parties 2 and 3 herein.

2. Perused the record.

3. This criminal revision has been filed challenging the order dated 01.08.2023, passed by Sessions Judge, Kanpur Dehat in Sessions Trial No.1290 of 2021 (State Vs. Rahul @ Golu), under Section 306 IPC, police station Devrahat, district Kanpur Dehat, whereby the application dated 28.07.2023, under Section 319 CrPC (paper No. 21 Ka) filed by the prosecution/first informant to summon the prospective accused (named in the FIR but not charge sheeted) i.e. opposite parties 2 and 3 herein to face trial in aforementioned Sessions Trial, has been rejected.

4. Record shows that in respect of an incident, which is alleged to have occurred on 12.07.2021, a delayed first information report dated 14.07.2021 was lodged by first informant, namely, Raghunath (father of the deceased) and was registered as Case Crime No.0030 of 2021, under Sections 302, 452 IPC, police station Devrahat, district Ramabai Nagar. In the aforesaid FIR, four persons, namely, Chandrika Prasad, Sakuntla, Rahul @ Golu and Dipika have been nominated as named accused.

5. The gravamen of the allegations made in the first information report is to the effect that marriage of Aarti Devi, daughter of first informant, was solemnized with Amar Chand about twelve years ago. On 12.07.2021, the named accused entered the house of the daughter of the first informant and caused the murder of daughter of first informant and thereafter hanged her dead body. The entire occurrence was witnessed by the mother-in-law of deceased.

6. It is apposite to mention here that the occurrence giving rise to present criminal proceedings had occurred on 12.07.2021. The inquest (Panchayatnama) of the body of deceased was conducted on 13.07.2021. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of deceased was categorized as suicidal. Subsequent to above, the post-mortem of the body of deceased was also conducted on the same day i.e. on 13.07.2021. The autopsy surgeon, who conducted autopsy of the body of deceased, opined that cause of death of deceased is asphyxia as a result of ante-mortem hanging. The autopsy surgeon found following external ante-mortem injuries on the body of deceased :

"External Injuries :-

1. Ligature mark whole neck circumference ? 28 cm

Gap ? 7.0 left side of neck.

- White glistening present on cut section mark of ligature mark."

7. Subsequent to aforementioned first information report, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. After visiting the place of occurrence and preparing the site plan, Investigating Officer examined the first informant and other witnesses under Section 161 CrPC. On the basis of above and other material collected by the Investigating Officer during course of investigation and also the mitigating circumstances that emerged during the course of investigation, he came to the conclusion that complicity of only two of the named accused, namely, Rahul @ Golu and Chandrika is established in the crime in question. He, accordingly, submitted the police report (charge-sheet) dated 26.09.2021 in terms of Section 173 (2) CrPC, whereby aforementioned named accused have been charge-sheeted under Section 306 IPC, whereas the other named accused were exculpated.

8. Upon submission of aforementioned police report (charge-sheet), the concerned Magistrate took cognizance upon same in exercise of jurisdiction under Section 190 (1)(b) CrPC. However, as offence complained of is exclusively triable by the Court of Sessions, therefore the concerned Magistrate as per the mandate of Section 209 CrPC committed the case to the Court of Sessions. Consequently, Sessions Trial No.1290 of 2021 (State Vs. Rahul @ Golu), under Section 306 IPC, police station Devrahat, district Kanpur Dehat came to be registered. The same is now said to be pending in the Court of Sessions Judge, Kanpur Dehat.

9. The concerned Sessions Judge proceeded with the trial and he framed charges in terms of Section 211 CrPC against the charge-sheeted accused. However, the charge-sheeted accused denied the same and pleaded innocence. Consequently, the trial procedure commenced.

10. The prosecution in discharge of it's burden to bring home the charges so framed against charge-sheeted accused adduced the following witnesses upto this stage : PW-1 Raghunath (first informant); PW-2 Ravendra @ Mullan; PW-3 Smt. Parvati; and PW-4 Vinod Kumar.

11. After the statement-in-chief/examination-in-chief of aforesaid prosecution witnesses were recorded, prosecution filed an application dated 28.07.2023 under Section 319 CrPC alleging therein that since complicity of other named but not charge-sheeted accused i.e. Shakuntla and Dipika, the opposite parties 2 and 3 herein is also established in the crime in question as per the depositions of aforesaid witnesses, therefore, they be also summoned to face trial in aforementioned Sessions trial.

12. It appears that no objection to the aforesaid application dated 01.08.2023, under Section 319 CrPC was filed by the charge-sheeted accused. However, irrespective of above the court below upon consideration and evaluation of the allegations made in the application under Section 319 CrPC in the light of the depositions of prosecution witnesses, recorded upto this stage and other material on record came to the conclusion that no prima facie case to summon the prospectie cccused is made out. The said conclusion was drawn by Court below upon due consideration of the depositions of the prosecution witnesses examined up to this stage and in doing so the Court below discovered that PW-1, PW-2 and PW-3 are not eye witnesses of the occurrence and PW-4 has not alleged about the complicity of prospective accused in his deposition. Accordingly, the court below by means of the order impugned dated 01.08.2023 rejected the aforesaid application under Section 319 CrPC filed by revisionist/first informant.

13. Thus, feeling aggrieved by the above order dated 01.08.2023 passed by court below, the first informant/revisionist has now approached this Court by means of present criminal revision.

14. Learned counsel for revisionist contends that the order impugned in present criminal revision is manifestly illegal and, therefore, liable to be set aside by this Court. In furtherance of aforesaid submission, the learned counsel for revisionist contends that it is the specific case of the prosecution that all the four named accused are instrumental in causing the death of the deceased. However, the Investigating Officer without conducting free and fair investigation and further without collecting sufficient material has exculpated 2 of the named accused namely- Sakuntla and Dipika. Irrespective of above, since as per the depositions of the prosecution witnesses examined upto this stage i.e. PW-1 Raghunath (first informant); PW-2 Ravendra @ Mullan; PW-3 Smt. Parvati; and PW-4 Vinod Kumar, the complicity of aforementioned named but not charge-sheeted accused is also fully established in the crime in question inasmuch as, the criminality alleged to have been committed by named accused is joint and common, therefore, the same is incapable of separation or segregation. As such, a prima-facie case for summoning the prospective accused was clearly made out. In view of above, court below has thus erred in law and fact in not summoning the prospective accused to face trial in aforementioned Sessions Trial. Consequently, the order impugned is liable to be set aside by this Court and the present criminal revision be allowed.

15. Per contra, the learned A.G.A. has vehemently opposed this criminal revision. He submits that the order impugned in present criminal revision is perfectly just and legal. Court below has not committed any such illegality in passing the order impugned so as to vitiate the same. As such, present criminal revision is liable to be dismissed by this Court. According to the learned A.G.A., Investigating Officer upon completion of statutory investigation of concerned case crime number opined that the death of the deceased is a suicidal death and he accordingly submitted the charge-sheet against charge-sheeted accused under Section 306 IPC. Admittedly, an offence under Section 306 IPC is to be considered on a conjoint reading of Sections 107 and 306 IPC. However, as per the material on record it cannot be inferred that the prospective accused are guilty of causing abetment, instigation or conspiracy in the crime in question. Furthermore, as per the depositions of the prosecution witnesses examined upto this stage i.e. PW-1 Raghunath (first informant); PW-2 Ravendra @ Mullan; PW-3 Smt. Parvati; and PW-4 Vinod Kumar, no inference regarding complicity of prospective accused i.e. opposite parties 2 and 3 herein can be inferred in the crime in question as the prosecution witnesses i.e. PW-1, PW-2 and PW-3 examined up to this stage are not the eye witnesses of the occurrence nor do they have any knowledge about the conduct of the prospective accused on the basis of which, an inference of guilt of the accused could be inferred. PW-4 in his deposition before Court below has not even alleged about the complicity of prospective accused in the crime in question. On the above conspectus, he therefore contends that no illegality has been committed by the court below in passing the order impugned. The deceased is the daughter of the first informant and the death has occurred in the matrimonial home of the deceased. However, since the occurrence has occurred after expiry of a period of twelve years from the date of marriage of deceased, the presumption under Section 304-B IPC read with Section 113-B of the Indian Evidence Act cannot be drawn against the accused. The prosecution will thus have to establish the criminality alleged to have been committed by the named but not charge-sheeted accused/prospective accused by its own evidence either direct or circumstantial. However, upto this stage, no such material has emerged on record on the basis of which an inference of guilt of the prospective accused can be inferred on the basis of the depositions of PW-1, PW-2, PW-3 and PW-4. It is thus urged that Court below was perfectly justified in rejecting the application under Section 319 Cr.P.C., therefore, the present criminal revision is liable to be dismissed by this Court.

16. Having heard the learned counsel for revisionist, the learned A.G.A. for State-opposite party 1 and upon perusal of record this Court finds that court below has decided the application dated 28.07.2023 under Section 319 CrPC (Paper No.21 Ka) filed by the prosecution/first informant on the basis of the depositions of prosecution witnesses i.e. PW-1 Raghunath (first informant); PW-2 Ravendra @ Mullan; PW-3 Smt. Parvati; and PW-4 Vinod Kumar only i.e. before the entire prosecution evidence was recorded. However, in view of the law laid down by the Five Judges' Bench judgement of Apex Court in Hardeep Singh Vs. State of Punjab and Others (2014) 3 SCC 92, no illegality can be said to have been committed by the court below on that ground, inasmuch as, the Court has held in aforementioned judgement that the application under Section 319 CrPC can be decided on the basis of statement-in-chief of only one prosecution witness. In view of above, no illegality can be attached to the order impugned on the ground that application under Section 319 CrPC has been decided by court below before the entire prosecution evidence was recorded.

17. It is apposite to mention here that the Five Judges' Bench judgement in Hardeep Singh (Supra) has also held that before summoning a prospective accused, the Court is required to record its satisfaction that a prima facie case to summon the prospective accused is made out. The Court has gone further and has also defined the degree of such satisfaction. It would be apt to reproduce paragraph 106 of the aforesaid judgment, wherein, Court has observed about the nature of satisfaction, which is required to be observed by Court before summoning a prospective accused in exercise of jurisdiction under Section 319 Cr.P.C. The same reads as under:-

"106. Thus, we hold that though only a prima facie 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."

18. When the order impugned is examined in the light of above, this Court finds that court below upon due consideration of material on record has returned a conclusive finding that as per the depositions of PW-1, PW-2, PW-3 and PW-4, no prima facie case for summoning of the prospective accused is made out inasmuch as, PW-1, PW-2 and PW-3 are not the eye witnesses of the occurrence and PW-4 has not alleged about the complicity of the prospective accused in the crime in question. This conclusion recorded by court below could not be dislodged by the learned counsel for revisionist as being illegal, perverse or erroneous. It is well settled that if the finding can not be dislodged, the conclusion cannot be altered. It is thus apparent that since no prima-facie case for summoning the prospective accused was made out, Court below has thus not committed any illegality in rejecting the application under Section 319 Cr.P.C. filed by the prosecution/first informant/revisionist. As such, no good ground for interference by this Court is made out.

19. Even though the law with regard to summoning of a prospective accused was crystalized by the Apex Court in the case of Hardeep Singh (supra) but, subsequently, different Two Judges' Bench judgments of the Apex Court in Brijendra Singh and Others Vs. State of Rajasthan (2017) 7 SCC 706 and S. Mohammed Ispahani Vs. Yogendra Chandak and others (2017) 16 SCC, 226 have redefined the scope of interference which exercising jurisdiction under Section 319 Cr.P.c. but in favour of the prospective accused. Thereafter, a Constitutional Bench in Sukhpal Singh Khaira Vs. State of Punjab, (2019) 6 SCC 638, has re-visited the parameters regarding exercise of jurisdiction under Section 319 CrPC. On conjoint reading of the aforesaid judgments, the following mandate stands emerged:-

(a) a prospective accused can be summoned under Section 319 Cr.P.C. upon consideration of the statement-in-chief of one prosecution witness. As such, Court concerned need not wait for the entire prosecution evidence to be recorded.

(b) the plethora of evidence collected by the Investigating Officer during course of investigation is required to be looked into by a Court dealing with an application under Section 319 Cr.P.C. as it is relevant material.

(c) Court while dealing with an application under Section 319 Cr.P.C. must examine the statement of the witness recorded under Section 161 Cr.P.C. and thereafter, draw a parallel to find out whether something new has emerged in the deposition of such a witness.

(d) a prospective accused cannot be summoned simply on the basis of his mere complicity in the crime in question

(e) Court can summon a prospective accused in exercise of jurisdiction under Section 319 Cr.P.C. only if, an inference of guilt of the prospective accused can be gathered from the material on record.

(f) jurisdiction under Section 319 Cr.P.C. is an extra-ordinary discretionary jurisdiction and should be exercised sparingly.

(g) Court should exercise it's jurisdiction under Section 319 Cr.P.C. diligently and not in a casual and cavalier fashion.

(h) a prospective accused can be summoned only when some strong and cogent evidence has emerged against him and not merely on the basis of his complicity in the crime in question.

20. When the order impugned is examined in the light of aforementioned parameters, it is clearly established that Present case is a case of circumstantial evidence. The complicity of an accused in a case based on circumstantial evidence can be inferred only in accordance with the parameters laid down by Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622 (Paragraph 152). Furthermore, the depositions of aforementioned witnesses examined up to this stage do not even establish abetment, instigation or conspiracy against the prospective accused. How the commission of an offence under Section 306 IPC is to be analyzed, has been succinctly dealt with in (i). Sarvesh Vs. State of U.P. 2018 ADJ Online 0163, (ii). Kanchan Sharma Vs. State of U.P. and Another 2021 SCC OnLine SC 737, (iii). Mirza Iqbal alias Golu and Another Vs. State of U.P. and Another 2021 SCC OnLine SC 1251, (iv) Mariano Anto Bruno and Another Vs. Inspector of Police 2022 SCC OnLine SC 1387, & (v) Kashibai and Others Vs. State of Karnataka, 2023 SCC OnLine SC 575. The propositions laid down therein, do not get attracted because the material facts to prima-facie establish the commission of an offence under Section 306 IPC by the prospective accused are conspicuous by their absence. As such, except for the bald allegations that complicity of the prospective accused is made out in the crime in question no strong and cogent evidence has emerged against the prospective accused. On the above conspectus, no interference regarding guilt of the prospective accused could be drawn by the court below. As such, no cast iron case for summoning of the prospective accused was made out. In view of above, it cannot be said that court below while passing the order impugned has not acted diligently but in a casual and cavalier fashion. Court below while passing the impugned order has thus neither committed a jurisdictional error nor it has exercised it's jurisdiction with material irregularity so as to vitiate the order impugned and warrant interference by this Court.

21. In view of the discussion made above, the present criminal revision fails and is liable to be dismissed.

22. It is, accordingly, dismissed.

Order Date :- 23.5.2024.

Rks.