Allahabad High Court
Archana vs State Of U.P. And Another on 3 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:953
Reserved On: 24.10.2024
Delivered On: 03.01.2025
Court No. - 80
Case :- CRIMINAL REVISION No. - 5569 of 2023
Revisionist :- Archana
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Anurag Shukla,Kunwar Bhadur Dixit
Counsel for Opposite Party :- G.A.,Rajneesh Tripathi
Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard learned counsel for the revisionist, learned counsel for the opposite party No.2, learned A.G.A. for the State-respondent and perused the material available on record.
2. The instant criminal revision has been preferred by the revisionist against the impugned order dated 24.8.2023, passed by learned Sessions Judge, Mainpuri, Session Trial No.22 of 2021 (State vs. Rahul and others), arising out of Case Crime No.235 of 2020, under Sections 32, 302, 504, 506 IPC, Police Station Dannahar, District Mainpuri. By the impugned order, learned Sessions Judge has allowed Application 13-A filed by the ifnormant Smt. Reeta Devi under Sections 319 Cr.P.C. and summoned named accused Archana to face trial in the case for charges under Sections 32, 302, 504, 506 IPC together with accused who are already facing trial.
3. Factual matrix fo the case in brief are that the informant Geeta Devi, wife of Late Vinod Kumar, lodged and FIR on 12.9.2020 at 11:44 hours, at police station concerned on the basis of a written report with averment that a hand pipe is installed in her house but Rahul, who is son of her brother-in-law (jeth) was creating obstructions when she tried to fetch water from the hand pump. Four days earlier to the incident, an altercation took place with Rahul, which was reconciled by local people. On 12.9.2020 prompted by this enmity at around 6:00 AM, when her son Robin had gone to collect grass, which was cut earlier alongwith her daughter Anshika and the informant in the agricultural field of Shailendra, Rahul came in front of them having an axe in his hand. Kusuma Devi, the mother of Rahul and his sister Archana stopped them and abused them in filthy language. In the meanwhile, Rahul struck a number of blows by an axe on head of her son (Robin) due to which he died on the spot. Mother and sister of Rahul had caught the informant and her daughter (Anshika) due to which they could not save Robin. The incident was witnessed by the informant, her daughter and some co-villagers. The accused fled away from the place after threatening them with life. The police conducted investigation in the case. The Investigating Officer recorded statements of informant Smt. Geeta Devi on 12.9.2020 i.e. on the date of incident and her daughter, who is also an eye-witness on 1.12.2020. The statement of Anuj Kumar and Vijay Bahadur was also recorded on 1.12.2020. The informant and her daughter Anshika supported the FIR version in their statements recorded under Section 161 Cr.P.C. and stated that when Rahul attacked the deceased Robin by an axe, his mother Kusuma Devi and sister Archana caught them due to which they could not save the deceased. They also abused and threatened them. The witnesses namely Anuj Kumar and Vijay Bahadur in their statements before the Investigating Officer although admitted the presence of the informant and her daughter Anshika as well as accused Kusuma Devi and her daughter on place of incident but they did not support the prosecution version that mother and sister of Rahul, the main accused, had caught the informant and her daughter Anshika at the time of incident, due to which they could not come forward to save the deceased. On 12.9.2020, the Investigating Officer recorded statements of Sunil, Vinod Kumar, Jeetpal, Mukesh Kumar, Shivnath, Ranveer, Ram Kishan, Ram Singh, Balram and Jagesh, who stated in their statements that named accused Kumari Archana, who is sister of main accused Rahul was not present at her native place on the date of incident and she had gone to visit her ailing maternal uncle Kailash Singh at her maternal place, which situates Village Ajani, Police Station Bichhawa, District Mainpuri. These people are resident of the maternal village of Archana and has stated that she was present in their village.
4. The Investigating Officer placing reliance on the statements of independent witnesses opined that the naming of Kumari Archana in the FIR is found false. Her complicity in the offence is not established and, therefore, her name is deleted in the investigation vide GD Entry No.45, time 23:38 hours, dated 18.2.2021. The Investigating Officer submitted chargesheet against assailants Rahul and his mother Kusuma Devi before the court for charge under Sections 32, 302, 504, 506 IPC. Learned competent Magistrate took cognizance of the offence and committed the case to court of Session for trial.
5. On commencement of trial, accused Rahul and Kusuma Devi were charged under Sections 32, 302, 504, 506 IPC. During prosecution evidence, the statement of PW-1 Kumari Anshika and PW-2 the informant Smt. Geeta Devi, wife of Late Vinod Kumar were recorded. After their evidence, the informant filed an application under Section 319 Cr.P.C. on 20.7.2021, wherein it is stated that the applicant had named Kumari Archana also in the FIR alongwith Rahul and his mother Kusuma Devi. Her son Robin was mercilessly killed in the incident dated 12.9.2020 at the instance of accused persons. She lodged the FIR on the same date against three accused persons, namely, Rahul, Kusuma Devi and Archana. The Investigating Officer deleted the name of Archana during investigation placing reliance on some unconcerned witnesses and their affidavits as he was acting hand in glove with the accused persons. The court has examined PW-1 and PW-2 during trial, who are mother and sister of the deceased and on the basis of their evidence recorded during trial, complicity of accused Archana is established in the offence, therefore, she may kindly be summoned to face trial under Section 319 Cr.P.C. together with co-accused.
6. Learned counsel for the revisionist submitted that the revisionist is an unmarried girl of 19 years of age and she is a student. She has been falsely implicated in the case only due to fact that she is real sister of main accused Rahul in this incident. All the three members of the family of accused are named in the FIR. Father of deceased as well as accused Rahul had already passed away at the time of incident. No active role has been assigned to the revisionist in the offence. Learned trial court has wrongly summoned the revisionist to face trial placing reliance on evidence of PW-1 and PW-2 recorded during trial without considering the totality and facts and circumstances of the case, which suggests that no strong prima facie case is made out against the revisionist to summon her in exercise of powers under Section 319 Cr.P.C. He lastly submitted that the impugned order is arbitrary and deserves to be set aside.
7. Per contra, learned counsel for the opposite party No.2-informant submitted that the revisionist is named in the FIR. She is real sister of assailant Rahul. She was also present alongwith her mother on the place of incident where accused Rahul struck fatal blows to Robin by an axe, who was of tender age and died on the spot. He next submitted that the Investigating Officer had wrongly deleted the name of the revisionist during investigation placing reliance on statements of unconcerned and so-called independent witnesses, who are resident of the maternal village of the revisionist and a false case has been concocted by the witnesses that the revisionist was not present at her native place on the day of incident as she had gone to visit her ailing maternal uncle at his village. He further submitted that the law is well settled that for exercising jurisdiction under Section 319 Cr.P.C., the trial court has to see the evidence recorded during trial as the evidence collected during investigation does not come within the purview of 'evidence'. Both the witnesses PW-1 Reeta Devi and PW-2 Kumari Anshika, the mother and sister of the deceased, have supported and fortified the prosecution case in their sworn testimony before the Court in which complicity of the revisionist in the offence is clearly stated.
8. Hon'ble Supreme Court considered ambit, extent and scope of exercise of power under Section 319 Cr.P.C. in Constitutional Bench Judgement of Hardeep Singh vs State Of Punjab & Ors, AIR 2014 SUPREME COURT 1400 and held that a court in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. Hon'ble Suprme Court considered the word "evidence" in Section 319 Cr.P.C. and held that it means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the Court to decide whether power under Section 319 Cr.P.C. is to be exercised and not on the basis of material collected during investigation. Hon'ble Court also considered the question in Hardeep Singh's case (supra) "What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted? While answering the said question, the Hon'ble Court observed as under:-
"A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different."
9. Hon'ble Suprme Court in Criminal Appeal No.2186 of 2023 (Yashodhan Singh and Others vs. The State of Uttar Pradesh and Another) vide judgment dated 18.7.2023 observed as under:-
"22. The relevant paragraphs in Hardeep Singh can be crystallised as under: -
"(iii) While distinguishing a trial from an enquiry, it was observed by this Court that trial follows an inquiry and the purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led. Emphasising on the word "course" used in Section 319 Cr.P.C., it was observed that the said power can be invoked under the said provision against any person from the initial stage of inquiry by the court up to the stage of conclusion of the trial. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences. Thus, the power under Section 319(1) Cr.P.C. can be exercised at any time after the charge-sheet is filed before the pronouncement of judgment, except during the stage of Sections 207/208 Cr.P.C., committal, etc.
(iv) Elaborating the nuances of Section 319 Cr.P.C., it was further observed in Hardeep Singh that what is essential for the purpose of Section 319 Cr.P.C. is that there should appear some evidence against a person not proceeded against; the stage of the proceedings is irrelevant. Section 319 Cr.P.C. is an empowering provision particularly where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well.
(v) It was further observed that circumstances which lead to the inference being drawn up by the court for summoning a person under Section 319 arise out of the availability of the facts and material that come up before the court. The material should disclose complicity of the person in the commission of the offence which has to be the material that appears from the evidence during the course of any inquiry into or trial of offence.
(vi) It was also observed by this Court in Hardeep Singh that apart from evidence in the strict legal sense recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C. Holding that the expression "evidence" must be given a broad meaning, it was observed that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. Such material would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have been suppressed or had escaped the notice of the court. Therefore, any material brought before the court even prior to the trial can be read within the meaning of the expression "evidence" for the purpose of Section 319 Cr.P.C. While considering the evidence that emanates during the trial, it was observed by this Court that evidence recorded by way of examination-in-chief and which is untested by cross-examination is nevertheless evidence which can be considered by the court for the exercise of power under Section 319 Cr.P.C. so long as, it would appear to the court that some other person who is not facing the trial, may also have been involved in the offence.
(vii) Further, Section 319 Cr.P.C. also uses the words "such person could be tried", which means not to have a mini-trial at the stage of Section 319 Cr.P.C. by having examination and cross-examination and thereafter coming to a prima facie conclusion on the overt act of such person sought to be added. Such a mini-trial will affect the right of the person sought to be arraigned as an accused rather than not having any cross-examination at all. As under Section 319 (4) Cr.P.C., such a person has the right to cross-examine the prosecution witnesses and examine the defence witnesses and advance his arguments. It was further observed that the power under Section 319 Cr.P.C. can be exercised even after completion of examination- in-chief and the court does not have to wait till the said evidence is tested on cross-examination, for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other persons, not facing the trial in the offence.
10. In Brijendra Singh & Ors vs State Of Rajasthan, AIR 2017 SUPREME COURT 2839, Hon'ble Supreme Court observed as under:-
"After referring to Hardeep Singh, this Court considered the question as to the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. and the related question, namely, as to, in what situations, this power should be exercised in respect of a person named in the FIR but not charge-sheeted. This Court held that once the trial court finds that there is some "evidence" against such a person on the basis of which it can be gathered that he appears to be guilty of the offence, there can be exercise of power under Section 319 Cr.P.C. It was observed that the evidence in this context means the material that is brought before the court during trial. Insofar as the material or evidence collected by the Investigating Officer (IO) at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by court to invoke the power under Section 319 Cr.P.C. This Court distinguished between the degree of satisfaction arrived at while exercising ower under Section 319 Cr.P.C. which is greater than the degree which is warranted at the time of framing of 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. Such power should not 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 a person's complicity were the observations of this Court.
Holding that in the said case there was no satisfaction, the order passed under Section 319 Cr.P.C. summoning the appellant therein was set aside by this Court.
11. Thus, Hon'ble Court in Brijendra Singh's case (supra) although reiterated the ratio of Hon'ble Supreme Court in Hardeep Singh that word "evidence" in the context of Section 319 Cr.P.C. is the material i.e. brought before the Court during trial yet it clarified that insofar as the material or evidence collected by the Officer (I.O.), is concerned it can be utilized for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C.
12. This is a case where a body of tender age was done to death in brutal manner and the main role in the offence is attributed to accused Rahul, who is stated as assailant. Unfortunately, the deceased and alleged assailant are real cousins (brothers) and this fact has come in the evidence that the families of informant and accused reside in the same house and there was a dispute with regard to use of hand pipe which was installed in the house and both families would have been fetch water therefrom. The PW-1 and PW-2 have reiterated their version in FIR that at the time of incident both the families were present on the spot. The informant had gone alongwith her son (deceased) and daughter Anshika to collect the grass, which was cut the earlier day and the accused Rahul, his mother Kusuma Devi and sister Archana were also present there. The witnesses have stated that both the families resided in the same house which has one gate and a hand pipe which became the bone of contention between the deceased and accused Rahul, which was shared by both the families. The witnesses have stated that when they had gone to collect the grass in the filed of Shailendra, Rahul was sitting there having an axe in his hand in planned manner. The witnesses and the deceased were packing the cut grass in a cloth (gathri), suddenly Rahul came before them having axe in his hand and struck a number of blows on Robin which resulted in his death. Kusuma Devi, the mother of Rahul and Archana his sister had caught the informant and her daughter at the time of incident due to whcih they could not save the deceased. Thus, in prosecution version, the only role which has been assigned to the revisionist is that she caught the informant and her daughter when accused Rahul was strucking blows on Robin. It is nowhere stated at any stage right from lodging of FIR to recording of statement of evidence by these witnesses that out of Archana and Kusuma Devi who caught the informant and who, her daughter. It is not the prosecution case that the revisionist had caught hold the victim when her brother was strucking fatal blows on deceased. It is also not stated nowhere by the witnesses that the revisionist was armed with any stick, lathi or weapon at the time of incident. Although, the witnesses of locality namely, Anuj Kumar and Vijay Bahadur, who are examined as eye-witnesses by Investigating Officer, have stated the presence of Archana alongwith her mother Kusuma Devi on the place of incident but they have not assigned any role in the offence to her in their statements under Section 161 Cr.P.C.
13. Considering the above stated facts and situation in the light of judgement of Hon'ble Supreme Court as stated above and the role attributed to the revisionist and supporting evidence, I am of the considered opinion that in present case, the degree of satisfaction i.e. required for invoking powers under Section 319 Cr.P.C. 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 is lacking. The evidence of PW-1 and PW-2 regarding complicity of the revisionist in the offence does not appear to be satisfactory for invoking powers under Section 319 Cr.P.C. against the revisionist. Consequently, the impugned order cannot be sustained under law and deserves to be satisfied.
14. Accordingly, present criminal revision stands allowed and the impugned summoning order passed by learned Sessions Judge, Mainpuri is, hereby, set aside.
Order Date :- 03.01.2025
Kamarjahan
