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Allahabad High Court · body

2018 DIGILAW 1165 (ALL)

Bhagwan Das v. State of U. P.

2018-05-09

DINESH KUMAR SINGH

body2018
JUDGMENT & ORDER : DINESH KUMAR SINGH, J. 1. Heard Sri Vishwendra Singh, learned counsel for the applicant and Smt. Sadhna Upadhyay, learned counsel for the opposite party nos. 2, 3, 4 and 5 and Sri Takeshwar Yadav, learned A.G.A. for the State and perused the record. 2. In brief, the facts of the present matter are as follows. 3. The applicant moved an application no. 21-Kha dated 30.10.2014 and 32-Kha dated 12.12.2017 under Section 319 Cr.P.C. stating that accused Rajendra Singh, Munna, Satish @ Pappu, Mayaram, Komal Singh, Amresh @ Manni and Ram Naresh @ Natto had been named in the FIR, where after the investigating officer in collusion with the accused submitted charge sheet only against Rajendra Singh, Komal Singh, Satish @ Pappu under Section 302, 504 and 506 IPC and exonerated Munna, Mayaram, Ram Naresh @ Natto and Amresh @ Manni. 4. According to FIR, the eye-witnesses PW-8 Devendra Singh @ Pappu, PW-9 Ram Pati and PW-10 Dharmveer Singh stated in examination-in-chief and in cross-examination about involvement of the aforementioned four accused in the present case, on the basis of which, prima facie case is made out against them, hence, it was prayed that the accused Munna, Mayaram, Ram Naresh @ Natto and Ambresh @ Manni should also be summoned to face trial under Section 319 Cr.P.C. 5. From the side of accused objection 23-Kha dated 5.11.2014 was submitted stating therein that the parents of the deceased and other close witnesses had not stated anything about involvement of the accused. There was discrepancy in the statement of witnesses recorded by Investigating Officer under Section 161 Cr.P.C. and lot of exaggeration was made therein by stating themselves to be an eye witness of the occurrence, although none of them was an eye-witness. The said application was moved due to enmity and the same deserves to be dismissed. 6. From the side of the applicant, supplementary application 32-Kha dated 12.12.2017 under Section 319 Cr.P.C. was also moved stating therein that on 30.10.2017, the complainant had moved an application under Section 319 Cr.P.C. for summoning co-accused Munna, Mayaram, Ram Naresh @ Naresh and Ambresh @ Manni which was paper No. 21- Kha/1 to 21-kha/2 in reply to which, objection 23-Kha was submitted. Even in the supplementary application, it was stated from the side of prosecution that the witnesses PW-10 Ram Das and PW-11 Vijay Pal Singh were eye-witnesses of the occurrence and had deposed about involvement of the aforesaid accused. PW-8 Devendra Singh @ Pappu, PW-9 Ram Pati and CW-1 Dharmveer Singh were also examined, who also had supported the prosecution version stating that the co-accused had played role in commission of the offence with the main accused. Thus, complainant/informant Bhagwan Das himself (PW-1), CW-1 Dharmveer, PW-2 Smt. Aneeta, PW-3 Balattar, PW-4 Bhagwan Singh, PW-5 Ram Pati, PW-6 Rishikesh, PW-7 Dilip Singh, PW-8 Devendra @ Pappu, PW-9 Ram Pati, PW-10 Ram Das and PW-11 Vijay Pal Singh had supported the version mentioned in the application in their statements. PW-1 Bhagwan Das (complainant of the case) has stated in examination-in-chief that his son Satya Bhan was fired upon by which, he died relating to which he had given a complaint at the Police station which was written by Dharmveer (CW-1) and the said written report (Ext. Ka-1) was proved by him in examination-in-chief. PW-2 Smt. Aneeta is mother of the deceased, who has stated in examination-in-chief at about 5-6 O'clock Rajendra and Komal were coming drunk with Satish and started indulging in using abusive language, her son Satya Bhan had reached there to see the occurrence in front of the house of Rampati, where her son was shot dead. 7. Pw-3 stated that on 4.12.2012 at about 5-6 O' clock fire was made upon the Satya Bhan. PW-4 has given evidence that Rajendra and Komal had come there along with Satish and started abusing and that Satya Bhan died due to getting shot. Similarly PW-5, PW-6 and PW-7 have also corroborated the place of occurrence and the death taking place due to fire arm injury being received by the deceased Satya Bhan. 8. Pw-8 Devendra @ Pappu has also stated about the occurrence having taken place on 4.12.2012 at about 5:00 PM, when he was standing at his door and that accused Rajendra, Mayaram, Komal, Munna, Mani @ Amresh, Nattu @ Ram Naresh, Pappu @ Satish were abusing and when they stopped them from abusing, he was shot upon and the fire hit Satya Bhan, who was standing at Chabutra. Similarly, PW-9 Ram Pati, PW-10 Ram Das and PW-11 Vijay Pal have also stated as an eye-witnesses that accused Rajendra, Munna, Mayaram, Satish, Amresh, Ram Naresh and Komal had fired with an intention to kill, which hit Satya Bhan in his head, as a result of which, he died. 9. In the said application, the complainant has stated that the police has submitted charge sheet only against Rajendra Singh, Komal Singh and Satish while co-accused Maya Ram, Munna, Amresh, Ram Naresh @ Natto were exculpated. The names of the aforesaid persons have been taken out only on the basis of wrong affidavits being filed by few persons while in the statements given before the court, it has clearly come to the light that the said four co-accused persons were also involved with Satish, Rajendra Singh and Komal Singh in giving effect to this occurrence. 10. Learned court below after having perused the entire evidence as mentioned in the impugned order has recorded that PW-1 to PW-7 have not supported the prosecution version. CW-1, who was examined as a court witness has only proved writing of the first information report. PW-8 to PW-11 have supported the prosecution version. During arguments from the side of prosecution, an application 21-Kha dated 30.10.2014 was moved and thereafter on 12.12.2017 another application 32-Kha had been moved, which was not proper. It was argued on behalf of the prosecution that there was no prohibition in moving second application, rather it was stated that 32-Kha was not a second application, rather the same was supplementary application of the earlier moved application 21-Kha, which was not barred under law and reliance has been placed in this regard upon Ajay Kumar Vs. State of U.P., 2014 2 JIC 60 Allahabad. 11. Learned court below has made in depth analysis of the statement of the witnesses, who have given incriminating evidence against the accused persons, particularly that of PW-8 Devendra @ Pappu, PW-9 Ram Pati, PW-10 Ram Das and PW-11 Vijay Pal, who all have stated that on 4.12.2012 in the evening at about 5:00 PM, they were present at the place of occurrence at that time Devendra @ Pappu, Vijay Pal, Vijay Prakash, Sudama, Dharmveer, Raghuvir and Shankar were also standing. At that very time, Rajendra, Komal Singh, Satish @ Pappu came there and with them there were Maya Ram, Munna, Amresh, Ram Naresh and Satish also. At that very time, Rajendra, Komal Singh, Satish @ Pappu came there and with them there were Maya Ram, Munna, Amresh, Ram Naresh and Satish also. Rajendra and Munna were armed with rifle, Satish with double barrel gun and others were armed with country made pistols. They started abusing and when they were stopped from doing so, all of them started firing, which hit Satya Bhan in his head, as a result of which, he died. But the learned lower court has mentioned that in the present matter, the complainant of the case had moved an Application No. 104/29 to 104/41 wherewith affidavits of Ram Das, Devendra @ Pappu, Vijay Pal, Balattar, Ram Pati and Bhagwan Das were given before the S.P., the same were taken on record during the proceedings of investigation, which were got prepared in Kutchehary on 14.2.2013. It appeared from the perusal of the Parcha No. 4 of the Case Diary that the statement of Ram Das and Dharmveer had already been recorded by the investigating officer on 7.12.2012, in which in his statement recorded under Section 161 Cr.P.C., Ram Das stated that he had gone on 4.12.2012 to his agricultural field and when he returned he came to know that Rajendra, Munna, Komal, Satish, Mayaram, Ram Naresh and Amresh had fired upon Satya Bhan, which resulted in his death. He had not seen the occurrence. 12. Similarly the scribe of the FIR Dharmveer stated that on 4.12.2012 regarding the murder of Satya Bhan, Sri Bhagwan Das had told him and as he narrated, he had written same in the report and had put his signatures thereon Ram Pati in Case Diary Parcha No. 19 dated 25.2.2013 has stated that on 4.12.2012, there was commotion in the house of Bhagwan Das hearing which many people had assembled, he also reached there and saw the son of Bhagwan Das (i.e. Satyabhan) had got a fire arm injury, which resulted in his death. He had heard Rajendra, Komal and Satish running away from the spot and abusing, who had made that fire, he could not tell. His relatives Munna, Mayaram, Amresh and Ram Naresh were not on the spot nor had they committed any offence. Apart from that Balattar Singh (PW-3) has stated in his examination-in-chief that what was written in the affidavit, he could not tell. His relatives Munna, Mayaram, Amresh and Ram Naresh were not on the spot nor had they committed any offence. Apart from that Balattar Singh (PW-3) has stated in his examination-in-chief that what was written in the affidavit, he could not tell. Nothing was mentioned in the affidavit as to who had made fire. He also states that he was illiterate and used to put his thumb impression. He was not read out the affidavit and further he stated that he had reached the spot after the occurrence and there was a lot of crowd. In the examination-in-chief, he also stated that he knew Rajendra Singh, Komal Singh and Satish, who belonged to his village. The occurrence took place on 4.12.2012 in the evening around 5-6 PM. Satya Bhan was shot dead by someone but he was not on the spot so he did not know, who had shot him. 13. Pw-1 and PW-2 in their cross-examination have admitted that the occurrence took place in winters, when it was dark. He had not seen Ram Pati, Devendra @ Pappu on the spot, they had reached the spot much after the occurrence. It is also mentioned in the order that it is worth mentioning that PW-1 had got an affidavit filed, Paper No. 104/39, which was got submitted to Investigating Officer through A.S.P. Agra. When this witness (PW-1), deposed before the court on 22.8.2013, he stated in his cross examination-in-chief the same facts, which were mentioned in the affidavit. Otherwise also the affidavit does not have any evidentiary value but during arguments, it was stated that some Advocate, who had got these affidavits prepared, he only had moved an application from the side of prosecution now and that those applications were given due to village enmity with mala-fide intention because in the present case, the trial was taking place of only three accused and if intense evaluation was made of the evidence at this stage, there could be possibility of adverse impact on the trial of the case. Therefore, under these circumstances, the court was supposed to see as to whether there was sufficient evidence against the persons, who were sought to be summoned as an accused and whether the evidence of said witness namely, PW-1, PW-2 and PW-7 was of the kind that they should be summoned. Therefore, under these circumstances, the court was supposed to see as to whether there was sufficient evidence against the persons, who were sought to be summoned as an accused and whether the evidence of said witness namely, PW-1, PW-2 and PW-7 was of the kind that they should be summoned. Panchayat Nama Paper No. 94/3 is on record, which was signed by Dilip Singh, Munna, Pappu, Indal and Kalyan Singh, out of whom Dilip Singh (PW-7) was examined, who stated that the occurrence happened on 4.12.2012 in the evening around 5-6 Pm. At that time, he was at home and after hearing out-cry he reached the spot and saw that somebody had shot upon Satya Bhan. He knew Rajendra Singh, Komal Singh, Satish @ Pappu, none of them had fired upon Satya Bhan in his presence nor were they abusing him nor had they given any threat to kill. Apart from that, PW-1 also stated before the Court at the time when his evidence was recorded that he could not see in the crowd Rajendra Singh, Komal Singh, Satish @ Pappu nor had he seen any weapons with them. PW-1 is father of the deceased. Prosecution had moved an application for declaring him hostile and for permission to be granted to him to cross-examine, even then he did not take name of the accused persons, who have committed this offence. When PW-1 was examined, he stated that it was the period of winters and darkness had enveloped, he was on the spot but he did not see Ram Pati & Devendra @ Pappu. They had come much after the occurrence on the spot. In cross examination, he has also stated that whatever was told by any body, he had got it written in the FIR. PW-2 Aneeta, mother of the deceased has also stated that it was winter when the occurrence took place and it had become dark by then at the time of occurrence, she did not see Ram Pati, Devendra @ Pappu. Similarly PW-3 to PW-7 have also denied to have seen the occurrence. 14. PW-2 Aneeta, mother of the deceased has also stated that it was winter when the occurrence took place and it had become dark by then at the time of occurrence, she did not see Ram Pati, Devendra @ Pappu. Similarly PW-3 to PW-7 have also denied to have seen the occurrence. 14. In view of above, learned lower court has concluded that whatever statements have been given by PW-8 to PW-11, they do not contain evidence of such level on the basis of which, Ram Naresh, Munna, Amresh and Mayaram be summoned as an accused under Sections 319 Cr.P.C. and accordingly, he has dismissed both the above mentioned applications. 15. The main contention during the arguments of learned counsel for the applicant is that on the basis of statements of PW-8 Devendra @ pappu, PW-9, Ram Pati, PW-10 Ram Das and CW-1 Dharmveer, it is evident that the opposite party nos. 2 to 5 were involved in this occurrence as they were also armed with fire arm weapons and had made indiscriminate firing on the complainant side in which the son of the complainant Satya Bhan got one bullet injury, as a result of which, he died. Under Section 149 Cr.P.C., all these persons would also be required to be tried with other co-accused, who are facing trial being involved in an offence in which with a common object of murdering the deceased, fire was made by all of them. There was enough evidence on record to nail them as accused. 16. On the other hand, Smt. Sadhna Upadhyay, learned counsel for the opposite parties stated that in the light of law laid down in Hardeep Singh's Case, the evidence on record is not of that level which if left un-rebutted would result in conviction of the respondent nos. 2 to 5 because according to prosecution, as many as seven persons are alleged to have made indiscriminate firing from a close range upon the complainant side in which only one bullet is being alleged to have hit the deceased and others have escaped unhurt, which is absolutely unbelievable. 17. This application has been moved with mischievous and mala-fide intention to keep the trial pending and to harass the opposite party nos. 2 to 5. 17. This application has been moved with mischievous and mala-fide intention to keep the trial pending and to harass the opposite party nos. 2 to 5. After having gone through the entire evidence and perusal of record in the light of arguments raised, it would be proper to mention here the law laid down in Hardeep Singh vs. State of Punjab and others, . "88. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Code of Criminal Procedure, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, (2013) 11 SCALE 23 , held that on the objective satisfaction of the court a person may be 'arrested' or 'summoned', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. 98. Power under Section 319 Code of Criminal Procedure is a discretionary and an extra-ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one 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 un-rebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Code of Criminal Procedure. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Code of Criminal Procedure. In Section 319 Code of Criminal Procedure the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the Court acting under Section 319 Code of Criminal Procedure to form any opinion as to the guilt of the accused." 18. As regards summoning a person as an accused to face trial with co-accused persons, therefore, it is evident that this Court has to see as to whether the evidence has come on record of the kind that, if the same is left un-rebutted, it would result in conviction of the opposite party nos. 2 to 5. It is evident that the main reliance is being placed on the statement of PW-8 to PW-11 from the side of complainant. 19. Pw-8 Devendra @ Pappu has stated in examination-in-chief that on 4.12.2012 at about 5:00 Pm, he was standing at his door and Rajendra Mayaram, Komal, Munna, Manni @ Amresh, Naththu, Ram Naresh, Satish @ Pappu were abusing him and when he told them not to abuse, they fired upon him which did not hit him but the same hit Satya Bhan, who was standing on Chabutara (Pucca Plateform), all of them had fired and the bullet hit Satya Bhan, who was standing behind him. In cross-examination, he has stated that huge indiscriminate firing was being made towards him 10 to 12 times and at that time, he was hardly 30-40 steps away from where firing was being made. He and Satya Bhan had got there together. In opinion of this Court, this seems exaggerated version because from such a close range indiscriminate firing was alleged to have been made and yet only one injury is being found of the deceased. 20. Pw-9 Ram Pati has repeated the same date and time of occurrence and has named Pappu @ Devendra, Vijay Pal, Vijay Prakash, Sudama, Dharmveer, Raghuveer, Shankar to be standing near him. 20. Pw-9 Ram Pati has repeated the same date and time of occurrence and has named Pappu @ Devendra, Vijay Pal, Vijay Prakash, Sudama, Dharmveer, Raghuveer, Shankar to be standing near him. Right then Rajendra, Komal Singh, Satish @ Pappu accompanied with Maya Ram, Munna, Amresh and Ram Naresh and Satish, all of them had fire arm weapons with them and started abusing him and stated that they were being defamed as drunkards. At this, PW-9 denied and, thereafter, all of them had started firing upon him and to save himself from getting hurt, he fell flat on the ground but Satya Bhan, who was standing behind Devendra received bullet injury, as a result of which, he died. All these accused had fired on them. This version also seems to be exaggerated because such a large number of persons making fire upon the complainant side from a close range does not result in injury to others except one to the deceased, seems an exaggerated version. 21. Pw-10 Ram Das has stated that he has seen the occurrence on 4.12.2012 in the month of December at about 5:00 pm, he was cutting Barseen. Accused were about 20-25 steps away from him from where they started firing. Fire was made towards him and to avoid getting hit, he had laid down on the ground, all the seven had fired aiming towards him for quite some time and during this entire period, he continued to put himself in that condition. When all of them stopped firing, he also went away from there. They had made about 15 fires, thereafter, stated that they must made about 30-40 fires, he was alone when he was cutting Barseen. It is wrong to say that the occurrence took place where Barseen was being cut, it is also wrong to say that the deceased, who died in this occurrence had died in the field of Barseen. The chabutara was about 20-25 steps from the place where he was cutting Barseen and the Satya Bhan received injury on Chabutara (Pucca Plateform). His statement also reveals that the said fire was made from a close range. The chabutara was about 20-25 steps from the place where he was cutting Barseen and the Satya Bhan received injury on Chabutara (Pucca Plateform). His statement also reveals that the said fire was made from a close range. In cross-examination, this witness has stated that it was not the statement made by him to police that on 4.12.2012 he had gone to his agricultural land and from there when he returned late in the night then he came to know that Rajendra, Munna, Komal, Satish, Mayaram, Ram Naresh and Amresh have killed Satya Bhan by making fire upon him and that he had not seen the occurrence, rather had heard about it subsequently after reaching there and it also appears that he had given different statements to police. 22. Pw-11 Vijay Pal, has stated that at the time of occurrence, he was standing near the deceased. When he reached the spot, the fire was being made from the house of Ram Pati. The fire was being made from the place which was 4-6 steps away from the house of Bhagwan Das. The deceased was standing on Chabutara (Pucca Platform). When the firing started, he took cover of Med which was 3-4 Ft. high and from there he was witnessing the occurrence. The firing continued to be made for one minute approx. He has also stated that he had not given any affidavit stating that in discriminate firing was made at the house of Bhagwan Das, in which his son died and if any, such affidavit is on record, he could not tell its reason. The statement of this witness is also seems to be an exaggerated for the same reasons as mentioned above. 23. Cw-1, has stated that occurrence took place on 4.12.2012 at about 5:00 PM, he was standing at his door with Devendra, Ram Pati Singh, Bhagwan Das, Sudama and Satya Bhan was standing on Chabutara (Pucca Platform) behind him. Rajendra, Mayaram, Komal, Munna and Satish, all seven were armed with weapons, he was brought in court by Bhagwan Das. In cross-examination, he stated that all of them were standing at the place of occurrence for about 5 to 10 minutes and in all about 9 to 10 persons had assembled there but none of them got injured. The abusing was being made from 40-50 steps away. None of the accused came near them. In cross-examination, he stated that all of them were standing at the place of occurrence for about 5 to 10 minutes and in all about 9 to 10 persons had assembled there but none of them got injured. The abusing was being made from 40-50 steps away. None of the accused came near them. It appears from the above statement, that he was also making exaggerated statement because it is unbelievable that no other person got injured despite seven persons making fire upon them except the deceased and that to only one bullet injury hit the deceased. It has also come into light that the father and mother of the deceased, both had turned hostile, which is being alleged by the learned counsel for the applicant that it happened on account of undue pressure exerted upon them. 24. In view of above evaluation of evidence on record, this Court finds that there is no infirmity in the order of the trial court in declining the summoning of the opposite party nos. 2 to 5 as accused to face trial with the co-accused. This evidence is not being found of such a kind that if left un-rebutted that would result in their conviction, hence, the order of the lower court is found to be well considered. Application u/s 482 Cr.P.C. is, accordingly, rejected.