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2007 DIGILAW 254 (PAT)

Shailendra Kumar Yadav v. State Of Bihar

2007-02-05

ABHIJIT SINHA

body2007
Judgment 1. Through this application under Section 482 Cr.P.C. the two petitioners herein have sought to question the propriety of the order dated 17.6.2005 passed by the learned 1st Additional Sessions Judge, Sitamarhi in Sessions Trial No. 223 of 2003 arising out of Dumra RS. Case No. 127 of 1998 whereby the learned court has summoned and directed them to stand trial along with those who had already been committed. 2. The factual matrix leading to the registration of the aforesaid Dumra P.S. Case may be culled out from the written report submitted by one Rani Devi who stated therein that her father Ram Naresh Singh for personal illegal gains solemnized her marriage with Sanjiv Kumar Singh alias Babloo Kumar Singh, the son of Shambhu Singh. It is said that shortly after the marriage in the month of July her father on the pretext of performing Puja brought her and her husband to his home at Azamgarh and where they remained. It is alleged that her father had criminal antecedents and was involved in several cases and many unknown criminals were regular and frequent visitors to his home and her father started requesting for money from her husband and on one occasion her uncle Vinod Singh requested for Rs. 20,000/- and threatened that if the said sum was not given they would not be permitted to go to their home and that her father-in-law would have to suffer dire consequence. It is further alleged that the uncle had also advised her to request her parents to sell land and hand-over money to the uncle so that amounts of loan could be re-paid and on several occasions there were quarrel between her father and her husband over the issue. It has also been alleged that she had seen her father get some papers signed by her husband and notwithstanding several requests she and her husband were not permitted to return to their marital home. It was further said that in the night of 15.8.1998 some unknown persons came to the house of the father and in the morning of the following day they took away her husband. The informant claimed to have become anxious over the matter and quietly she left her fathers home and went to her sasural where she narrated the incident to her parents-in-law. The informant claimed to have become anxious over the matter and quietly she left her fathers home and went to her sasural where she narrated the incident to her parents-in-law. Initially her parents-in-law did not appear to be responsive but when the husband did not return home her father-in-law with some co-villagers went out in search of her husband and in course thereof they learnt from the people of Azamgarh that it was her father who inconnivance with other criminals had taken her husband to Delhi on the pretext of getting him employment. Searches at various places including Delhi proved futile and on query being made from her father no satisfactory reply was forthcoming. It has also been alleged that since her parents-in-law were simple people and were afraid of the criminal antecedents of her father it was she who had come to report the matter to the police and she expressed her suspicion that her husband may have been done to death since for the past three or four days her father was seen moving in suspicious manner around her sasural. She also expressed her apprehension of being kidnapped by her father. 3. After due investigation the police submitted a chargesheet against her father Ram Naresh Singh and at the sessions trial as many as 9 witnesses were examined. 4. It has been submitted on behalf of the petitioners that neither under Sec. 164 Cr.P.C. of the informant nor in course of investigation or in the trial had any of the witnesses deposed regarding the involvement or participation of these two petitioners in the alleged murder of Sanjeev Kumar Singh and yet curiously the trial court had summoned these two petitioners to face trial as additional accused. It has further been submitted that proposed accused Shailendra Singh (Petitioner no.1 herein) had been cited as one of the prosecution witnesses and had even examined and cross examined at the trial.The learned counsel further sought to point out that although the informant in her fardbeyan and statement under Sec. 164 Cr.P.C. had not alleged anything regarding involvement of the petitioners but during her examination in court in course of trial she for the first time made allegations regarding involvement of the petitioners and the learned trial court on the basis of the statement in court took cognizance and exercising jurisdiction under Section 319 Cr.P.C. issued summons against the petitioners. It was also sought to be pointed out that suggestions regarding possible cause for involvement of the petitioners in the alleged murder of Sanjeev Kumar singh were put to the witnesses including Shailendra Kumar Yadav but all the suggestions were denied. The learned counsel further sought to point out that the subsequent implication of the petitioners may have been due to the fact that the informant Rani Devi had subsequently contacted a second marriage and either with a change of heart or under threat and coercion she may have entered into collusion with her father to save him. On the aforesaid premise the learned counsel for the petitioners sought to submit that it was by way of an after thought either by reason of change of heart or threat and coercion advanced by her father that she was seeking to implead these two petitioners as partners in the crime. 5. It would appear from the impugned order dated 17.6.2005 that the learned Additional Sessions Judge had fully relied on the statement of the informant Rani Devi as given in court wherein she had deposed that on 1.10.1998 Rup Narah Yadav and Shailendra Kumar Yadav had forcibly entered into her house and tried to commit rape and when her husband and father-in-law had raised protest they had been assaulted brutally and threats were advanced that the husband would have to face dire consequences and that these two petitioners and four others had forcibly obtained her signature on blank paper under threat that she too would be killed. It also appears from the impugned order that the informant had been declared to be hostile by the prosecution but the learned court was of the opinion that since the informant had deposed in her examination in chief regarding the involvement of the two petitioners herein that amounted to sufficient materials to summon the two petitioners herein under Section 319 Cr.P.C. 6. Admittedly, the inforjnant neither in her fardbeyan nor in her statement under Sec. 164 Cr.P.C had stated anything about the involvement and participation of the two petitioners in the crime. It is also an admitted position that none of the other witnesses including her father-in-law and mother-in-law have stated anything regarding the involvement or participation of these two petitioners in the alleged crime. It is also an admitted position that none of the other witnesses including her father-in-law and mother-in-law have stated anything regarding the involvement or participation of these two petitioners in the alleged crime. It is also the admitted position that the petitioner Shailendra Kumar Yadav is the husband of the Nanad Ragini Devi of the informant and petitioner Rup Narain Yadav is his cousin. It is the further admitted position that suggestions regarding the alleged attempt by the petitioners to commit rape on the informant had been put to Janki Devi, the mother-in-law of the informant and Ragini Devi, both of whom had denied the same. That apart the petitioner Shailendra Kumar Yadav appears to be an attesting witness to the inquest report. 7. Sec. 319 Cr.P.C. is designed to meet the specific situation of a court discovering in the midst of a trial or inquiry into an offence of which cognizance has been taken from the evidence already recorded that some persons should also be tried as accused for the same offence in addition to those already before the court as accused, being an extra-ordinary power, as held in the case of R.K. Khanna vs. Chief Secretary ( AIR 1983 SC 595 ), it should be used sparingly. The only condition for proceeding under this Section is that "it appears from the evidence" that the person concerned has committed any offence. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. In Municipal Corporation of Delhi vs. Ramkishan Rohtagi, reported in (1983) 1 SCC 1 , the Apex Court has struck a note of caution while considering whether the prosecution can produce evidence to satisfy the court that the other accused against whom proceedings have been quashed or those who have not been arrayed as accused have also committed an offence in order to enable the court to take cognizance against them and tried them along with other accused. 8. In the present case as pointed out above, the prosecution has already examined a large number of witnesses and they were cross examined by the defence. 8. In the present case as pointed out above, the prosecution has already examined a large number of witnesses and they were cross examined by the defence. Suggestions regarding the probable cause for the involvement of the petitioners in the alleged crime were also put to the witnesses by the defence which were specifically denied by them. Even the informant in her statement under Sec. 164 Cr.P.C. did not state anything regarding the conduct or possible involvement or probable participation of the petitioners in the alleged crime and it was only while deposing in court as P.W.2 that she coined the fresh story regarding the involvement of the petitioners and for the same she was declared to be hostile by the prosecution. The learned trial Court on the basis of the statement of P.W.2 felt the need to summon the two petitioners but none of the later witnesses examined in court and to whom suggestions regarding the conduct, participation or involvement of the petitioners were put and denied have supported the informants newly created story. There is no doubt that the statements do not create any suspicion against the petitioners and are not I sufficient to hold that there is a resonable prospect of convicting the petitioners. 9. Due regard being had to the facts and the circumstances of the case, summoning of the accused-petitioners under Sec. 319 Cr.P.C., to my mind, appears to be an abuse of the process of the court. 10. Accordingly, the impugned order dated 17.6.2005 is hereby set aside and the application is allowed.