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2004 DIGILAW 1661 (ALL)

BHUPENDRA SINGH v. STATE OF U P

2004-08-25

AMAR SARAN

body2004
AMAR SARAN, J. This application under Section 482 Cr. P. C. has been filed for quashing the order dated 4-5-2002 passed by the Additional Sessions Judge, Fast Track Court No. 1, Fatehpur in S. T. No. 472 of 1994. By the impugned order, the applicant has been summoned under Section 319 Cr. P. C. 2. Learned Counsel for the applicant submits that this order is illegal because there was no worthwhile evidence for summoning the applicant. The applicant who was implicated in the FIR alongwith co- accused Gyanendra Singh alias Dabloo for the murder of Smt. Gujrata Kunwar, the aunt of informant Mahendra Pratap Singh, had been exonerated by the police as no charge-sheet had been submitted against him. However, he was nominated in the statements of P. W. 2, the informant Mahendra Pratap Singh & Anr. witness Devi Dayal, P. W. 6. 3. Mahendra Pratap Singh, P. W. 2 had stated in his evidence that applicant Bhupendra Singh and Gyanendra Singh alias Dabloo Singh (charge-sheeted accused) had murdered his aunt. 4. P. W. 6 had stated that in the night he had seen Bhupendra Singh and Gyanendra Singh alias Dabloo in the light of fire, which was burning, talking amongst themselves and they were saying that they had taken the thumb-impression of old woman Smt. Gujrata Kunwar, but as the paper had blood on it, it had become useless. The next day, he had learnt that Smt. Gujrata had been murdered by Bhupendra Singh and Dabloo Singh. 5. Learned Counsel for the applicant submits that these two pieces of evidence are insufficient for summoning the applicant under Section 319 Cr. P. C. He states that in his cross-examination P. W. 2 Mahendra Pratap Singh admits that he was not an eye-witness of the incident. However, according to Mahendra Pratap Singh, he had just returned from easing himself when he found his aunt lying under a Rajai and when he received no reply to his call from her, he picked up the Rajai and found her neck cut and there was blood on her face and on the bed also. However, according to Mahendra Pratap Singh, he had just returned from easing himself when he found his aunt lying under a Rajai and when he received no reply to his call from her, he picked up the Rajai and found her neck cut and there was blood on her face and on the bed also. He also made certain vacillating statements about Devi Dayal and Dharampal having told him that the applicant and Gyanendra Singh, had murdered his aunt, although he is not very consistent about the latter statement and he says later on that Devi Dayal and Dharampal told him that Gyanendra and Bhupendra Singh were seen coming out of the Dalan after the incident. 6. The other witness P. W. 6 states that in the orchard of Korahanbagh at 8. 00 p. m. , he saw the applicant Bhupendra and Dabloo looking at a piece of paper and saying that they had taken the thumb-impression of Smt. Gujrata Kunwar, as there was blood on the paper, it had become useless and when he reached nearer to them, they said that all their action had been rendered futile and the land had passed out of their hands. When the witness reached closer to them, they appeared to have become nervous and to have gone away in the western direction. The next day, he learnt that Smt. Gujrata Kunwar had been done to death by the applicant and Dabloo Singh. 7. Here it may be noted that presence of blood on the paper, which the applicant and Dabloo Singh were supposed to be looking at while sitting in front of the fire, after the murder of Smt. Gujarata who was later found with an incised wound on her neck, coupled with their statements which was overheard by the witness, PW 6, Devi Dayal can certainly be considered circumstances which will have to be put on the scales by the trial Court when it considers the evidence in this case. There can be no detailed examination of the evidence in the manner suggested by the learned Counsel for the applicant at the stage when the question whether it would be appropriate to summon a particular accused under Section 319 Cr. P. C. is being considered as only a prima facie case of the involvement of the accused is required to be seen at that stage. P. C. is being considered as only a prima facie case of the involvement of the accused is required to be seen at that stage. At any rate, the reliability of this evidence can only be assessed at the trial. In the circumstances the trial Court committed no illegality in recording a finding that a prima facie case for summoning the applicant was made out after the examination of the two witnesses, PWs 2 and 6. 8. Learned Counsel for the applicant had relied upon the case of Michael Machado & Anr. v. Central Bureau of Investigation & Anr. , 2000 (2) JIC 5 (SC) : 2000 SCC (Cri) 609, wherein, in paragraph 14, it is stated that for invoking the powers under Section 319 Cr. P. C. , the Court must be reluctant to proceed against the newly added persons as the Courts proceedings would have to recommence from the beginning of the trial and the Court has to seriously consider whether the object sought to be achieved by such exercise is worth the effort. It may be noted that this was a case in which two Chief Managers of the Branch were being sought to be implicated in exercise of power under Section 319 Cr. P. C. after 49 witnesses had been examined, who had not uttered a single word against any of them, but their names came in the statement of 50th, 51st and 52nd witnesses, who alleged that the two Chief Managers were also involved in conspiracy, cheating and forgery of the valuable, security. No doubt, at that stage a de novo trial by adding the two new accused to the array of accused, would really amount to colossal waste of the Courts time, but in the present case as pointed out above, there was some evidence starting from the very inception of the case, after the statements of the informant P. W. 2 and P. W. 6, Devi Dayal had been recorded for implicating the applicant in this case. It is note worthy that unlike the accused in Michael Machados case whose impleadment was sought by the prosecution after the evidence of the 52nd witness, here the applicant was named early in the FIR itself as the first accused. 9. It is note worthy that unlike the accused in Michael Machados case whose impleadment was sought by the prosecution after the evidence of the 52nd witness, here the applicant was named early in the FIR itself as the first accused. 9. It was further mentioned therein that the deceased Smt. Gujrata Kunwar had not given her land to her relations, but to the son of her sister, i. e. the complainant, which was the cause for resentment from the relations of Smt. Gujrata Kunwar, which included the applicant and co-accused Dabloo Singh. Thus, motive for this offence is also suggested against the applicant. 10. In view of the aforesaid facts and circumstances, there appears to be no legal error in the impugned order dated 4-5-2002 passed by the Additional Sessions Judge, Fast Track Court No. 1, Fatehpur summoning the applicant under Section 319 Cr. P. C. This application under Section 482 Cr. P. C. is accordingly dismissed. Stay order dated 21-5-2002 stands vacated. 11. However, in view of the fact that a long time has elapsed since the incident dated 29-12-1993 and the proceedings have also remained stayed in this case from 21-5-2002 and the co-accused Dabloo Singh has been grained bail in this case, it is provided that if the applicant appears before the trial Court within a month and applies for bail in the aforesaid case, his bail application shall be considered and disposed of expeditiously by the Court concerned. Thereafter the trial Court shall decide the trial expeditiously, preferably within five months. 12. Application dismissed subject to the abovementioned observations. Application dismissed. .