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2010 DIGILAW 644 (ALL)

PREMPAL SINGH v. STATE OF U. P.

2010-02-19

VIRENDRA SINGH

body2010
JUDGMENT Hon’ble Virendra Singh, J.—Revisionist Prempal Singh and Vijendra Singh have preferred this revision against the order dated 18.11.2004 passed by Additional District and Sessions Judge (Fast Tract Court) Court Room No. 17, Bulandshahr under Section 319, Cr.P.C. against the revisionists in S.T. No. 754 of 1999, State v. Ram Veer Singh and another, under Sections 363, 366 I.P.C., Police State Pahasu, District Bulandshahr, whereby the revisionists have been summoned by the Court as per provisions under Section 319 Cr.P.C. 2. The learned counsel for the revisionists and learned A.G.A. on behalf of State have been heard. 3. It is submitted on behalf of the revisionists that the impugned order is illegal because the prosecution witnesses have not deposed anything against the revisionists indicating possibility of conviction of the revisionists while the learned A.G.A. submitted that there is no illegality in the impugned order as the impugned order has been passed by the learned Lower Court exercising the jurisdiction vested in the Court and the impugned order is not erroneous on the facts on record as well as in the eyes of law. 4. Learned counsel for the revisionists took recourse of the following citations. (i) 2008 (63) ACC 194 (SC), Kailash v. State of Rajasthan and another, in which Hon’ble the Supreme Court has held that exercise of power under Section 319 Cr.P.C. should be very sparingly and with caution during trial if it has to be appear from the evidence that persons not being accused have committed any offence. In this case the trial Court had come to the conclusion that there was no possibility of convicting the accused on the basis of evidence on record and the High Court had not applied the mind independently to the question as to whether there was material on record to convict the accused. (ii) 2009 (67) ACC 733 (SC), Lal Suraj alias Suraj Singh and another v. State of Jharkhand and another, in which the Hon’ble Supreme Court has held that the trial Court must form an opinion on basis of evidence brought before it that the case has been made out and that such person can be tried alongwith other accused persons who was named in the F.I.R. but not charge-sheeted. (iii) 2009 (65) ACC 971 (SC), Ram Singh and others v. Ram Niwas and another, in which the Hon’ble Supreme Court has held that the extra ordinary power under Section 319 Cr.P.C. is to be exercised only when it appears to the Court that the person not being tried has committed an offence on basis of evidence on record and mere existence of prima facie case is not sufficient to exercise jurisdiction. The Court must arrive at satisfaction that evidence adduced on behalf of the prosecution if un-rebutted would lead to conviction of the persons sought to be added as accused. 5. In the light of the contention of both the parties and the law as aforesaid, I have gone through the entire facts and circumstances on record. The learned lower Court by way of impugned order arrived on this conclusion that the revisionists/accused named Prem Pal Singh and Vijendra Singh were also appeared alongwith accused Ram Veer and Gajju facing trial in this case. P.W. 1 Charan and P.W. 3, Triveni the prosecutrix examined on record have stated that Prem Pal and Vijendra Singh were amongst the accused at the time of taking away Triveni by a Car and therefore, the learned lower Court found that there are sufficient grounds for summoning them. Consequently, the learned lower Court has summoned the accused persons who are revisionists in this revision. No doubt by way of the very words, the learned lower Court has not stated in the impugned order that the evidence adduced on behalf of the prosecution if unrebutted may lead to conviction of the persons sought to be added i.e. the revisionists of this case. It reveals from the order that the learned lower Court after going through evidence adduced by the prosecution have formed an opinion that sufficient grounds are available on record for summoning the accused/revisionist in this case for the offence alleged in trial. In my view the trial Court seems to have formed an opinion on the basis of merely the examination-in-chief of the aforesaid witnesses as evidence brought before it that the case has been made out for this purpose that the revisionists/accused can be tried alongwith other accused persons facing trial, which is erroneous. 6. In my view the trial Court seems to have formed an opinion on the basis of merely the examination-in-chief of the aforesaid witnesses as evidence brought before it that the case has been made out for this purpose that the revisionists/accused can be tried alongwith other accused persons facing trial, which is erroneous. 6. The trial Court should have come to this conclusion on perusal of the completes and entire statements of the witnesses including cross-examination which was available on record that there was material to convict the appellant and to arrive at his satisfaction that the evidence adduced on behalf of prosecution, if un-rebutted, would lead to conviction of the persons sought to be added as accused in the case, as is the law laid down by the Hon’ble Supreme Court. Though the learned lower Court opined sufficient grounds as per evidence of the prosecution for summoning the accused persons/revisionists but I do not find it very much perfect in the eyes of law as well as on the facts on record in view of discrepancy in the evidence of P.W. 1, Charan Singh and P.W. 3 Triveni. Each and every case has to be scrutinized on his own facts. There has been a case on record for the offence under Sections 366 and 376 I.P.C. against accused Ram Veer Singh and Gajju facing the trial. Accused Prem Pal Singh and Vijendra Singh have been summoned as per provisions under Section 319 Cr.P.C. on the evidence of PW-1 Charan Singh and PW-3 Triveni the prosecutrix for whom it is stated that Triveni was taken away by Gajju, Prem Pal, Vijendra and Ram Veer thereby instigating her at the time when she was plucking Saag in the fields alongwith Chameli. This fact if un-rebutted so long is sufficient for trial of accused Gajju and Ram Veer, it may be sufficient too for the trial of accused Prem Pal and Vijendra but since this fact is shaken in the cross-examination of the prosecution witnesses examined. Therefore, merely the examination chief of the witnesses could have not been considered sufficient for conviction of the revisionists. Therefore, merely the examination chief of the witnesses could have not been considered sufficient for conviction of the revisionists. The record shows that in her cross-examination Triveni the prosecutrix has stated that when she was taken away by the Car there were only two persons more in the car apart from the Driver, while if both the revisionist were also present with Gajju and Ramveer, there should have been four persons, in Car apart from the Driver. She has also stated that she was taken away from Gharkona to Delhi by Gajju and Ramveer. She has further denied the presence of Ram Veer too on spot of her abduction. She stated too that Gajju alone had taken her to Ginora. In his cross-examination the witness Charan Singh too has stated that Triveni was taken away by Gajju, Prempal, Vijendra and Chameli. The name of Ram Veer is missing in his statement while the name of Chameli is added. Not even this, the prosecutrix admitted herself of 19 years old. No alarm or any noise is remained or raised on spot of occurrence is an admitted fact by Charan Singh the witness. 7. In the aforesaid circumstances, I come to this conclusion that on such type of suspicious evidence the revisionists were not liable to be summoned in view of the law laid down by Hon’ble Supreme Court in the case of Suraj Singh (supra), quoted below : “The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A Court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the Court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the Court. There lies a fine but clear distinction.” 8. In a case where, however, the Court exercises its jurisdiction under Section 319 of the Code, the power has to be exercised on the basis of the fresh evidence brought before the Court. There lies a fine but clear distinction.” 8. In the case of Yuvaraj Ambar Mohite v. State of Maharashtra, 2006(56) ACC 984 (SC), the Hon’ble Supreme Court has observed that if there is a possibility of the accused being convicted on the basis of evidences brought on record even if the same is taken to be correct in its entirety, the power under Section 319 Cr.P.C. may be used by the Court. 9. Looking into the entire facts and circumstances on record, the law in this regard, I am of this view that “The key words in Section 319 Cr.P.C.” it appears from the evidence”.....” any person”....”has committed any offence” seems to have not been cautiously perused and observed with by the learned lower Court and therefore, I find it a fit case in which the extraordinary power supposed to have been used sparingly should have not been used in this case by the lower Court. Therefore, this revision deserves to be allowed and is allowed accordingly. The impugned order dated 18.11.2004 is quashed and the matter is remanded back to the Court concerned with this direction that if at the time of trial, the Court finds such evidence on record which may be sufficient to convict the accused supposed to be summoned, the aforesaid power may be invoked in the light of the observations made aforesaid and the law laid down by Hon’ble the Supreme Court in this regard. ————