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2013 DIGILAW 1310 (ALL)

SANJEEV KUMAR v. STATE OF U. P.

2013-05-03

S.C.AGARWAL

body2013
S.C. Agarwal, J. Heard Sri M.C. Chaturvedi, learned counsel for the revisionist, learned A.G.A. for the State and perused the record. This criminal revision is directed against order dated 22.3.2012 passed by Special Judge ( D.A.A.), Etawah in Special Trial No.204 of 2008, State Vs. Vimlesh and others under section 364-A IPC, P.S. Bharthana, District Etawah, whereby the revisionist Sanjeev Kumar son of Jagdish Chandra was summoned under section 319 Cr.P.C. for facing trial in respect of the offence under section 364-A IPC. Learned counsel for the revisionist submits that initially the application was allowed vide order dated 4.5.2005 and the revisionist was summoned under section 319 Cr.P.C., but order dated 4.5.2005 was set-aside by this Court vide order dated 6.5.2009 passed in criminal misc. application no.9938 of 2009 with a direction to the trial court to decide the application afresh after examination and cross-examination of all the prosecution witnesses. Learned counsel contends that the abductee Vimal Kumar @ Kallu, in cross-examination, has specifically stated that he was kidnapped/adbucted by Sanjeev Kumar son of Ram Das and Anil Kumar, whereas another abductee Rajesh ( P.W.2) simply named Sanjeev, but did not disclose his father's name. The contention is that from the statement of Vimal Kumar @ Kallu, the involvement of the revisionist is completely ruled out. The next contention is that a person summoned under section 319 Cr.P.C. has to be jointly tried with the persons, who are already accused in the case, but in the instant case, learned trial court has separated the case of the revisionist and decided the case of other co-accused whereby all other accused, except Anil Kumar, have been acquitted and Anil Kumar has been convicted for the offence under section 364-A IPC. Learned A.G.A. supported the impugned order and submitted that name of the revisionist finds place in the statements of both the abductees namely Rajesh and Vimal Kumar @ Kallu and revisionist is named in the FIR. Therefore, the summoning order is fully justified. Certified copies of statements of Vimal Kumar @ Kallu ( P.W.1), Rajesh Kumar ( P.W.3) and Ramesh Chandra Yadav - the investigating officer ( P.W.5) have been filed along with second supplementary affidavit. Therefore, the summoning order is fully justified. Certified copies of statements of Vimal Kumar @ Kallu ( P.W.1), Rajesh Kumar ( P.W.3) and Ramesh Chandra Yadav - the investigating officer ( P.W.5) have been filed along with second supplementary affidavit. In the examination-in-chief, P.W.1 Vimal Kumar named Sanjeev Kumar son of Jagdish Chandra ( revisionist) and made allegations against him, but in the cross-examination dated 9.12.2009, Vimal Kumar admitted that Sanjeev son of Ram Das had thrown him in the marshall jeep. Sanjeev son of Ram Das was accompanied by Anil. Sanjeev son of Jagdish Chandra did not abduct him. From this statement of Vimal Kumar, the entire prosecution case against the revisionist falls to the ground like a pack of cards. May be, he was won over by the revisionist, but the fact of the matter is that this witness, who is the star witness for the prosecution, ruled out involvement of the revisionist in the entire episode and alleged that kidnapping or abduction was done by another person named Sanjeev son of Ram Das. As far as the second abductee Rajesh is concerned, he has not given the father's name of Sanjeev in his statement. When there are two Sanjeev, one is son of Ram Das and another is son of Jagdish, it was necessary for the prosecution to clarify from this witness as to whether the kidnapper is Sanjeev son of Ram Das or Sanjeev son of Jagdish. The third witness - the complainant is not an eyewitness and, therefore, his statement is immaterial for the purposes in this revision. Learned trial court has not even referred to the statement of Vimal Kumar @ Kallu ( P.W.1) given by him in the cross-examination and this aspect of the matter was completely ignored by the trial court. It is also noteworthy that when an accused is summoned under section 319 Cr.P.C., he has to be jointly tried with other co-accused and the trial court was not justified in separating the case of the revisionist and deciding the case of rest of the accused. Except Anil, all other co-accused have been acquitted by the trial court. When we consider the prosecution evidence in its entirety, the question arises whether the evidence is of such a nature, which may result in conviction of the revisionist. Except Anil, all other co-accused have been acquitted by the trial court. When we consider the prosecution evidence in its entirety, the question arises whether the evidence is of such a nature, which may result in conviction of the revisionist. Considering the statement of P.W.1 given in the cross-examination ruling out the involvement of the revisionist, the possibility of a conviction is remote. In these circumstances, the trial court was not justified in summoning the revisionist under section 319 Cr.P.C. and the impugned order cannot be sustained and is liable to be set-aside. Revision is allowed. Impugned order dated 22.3.2012 is set-aside and the application under section 319 Cr.P.C. preferred by the prosecution stands dismissed.