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2019 DIGILAW 2257 (ALL)

Manidhar Mishra v. State of U. P.

2019-09-25

PRADEEP KUMAR SRIVASTAVA

body2019
JUDGMENT : Pradeep Kumar Srivastava, J. 1. Heard Sri Rajiv Lochan Shukla, learned Senior counsel assisted by Sri Ravi Kant Shukla, appearing for the revisionists, Sri I.K. Chaturvedi, learned Senior counsel assisted by Sri Pawan Kumar Mishra, appearing for the opposite party No. 2, the learned A.G.A. for the State and also perused the record. 2. This revision has been filed by the revisionist, Manidhar Mishra and Gangadhar Mishra @ Ankur Mishra against the judgment and order dated 05.09.2019 passed by learned Sessions Judge, Basti on the application (Paper No. 77 Kha) moved by opposite party No. 2 Pradeep Kumar Tiwari in S.T. No. 211 of 2016 (State Vs. Roop Narayan Giri) in Case Crime No. 0568 of 2016 under section 302 I.P.C., Police Station Captainganj, District Basti. 3. Submission of the learned counsel for the revisionist is that initially an application was moved from the side of prosecution under section 319 Cr.P.C. and the learned Sessions Judge, Basti passed an order dated 28.10.2017 by which he rejected the application. 4. Against that order, a revision being Revision No. 236 of 2018 was filed before this Court and vide order dated 08.07.2019, that revision was partly allowed in respect of two accused persons Ankur Mishra and Manidhar Mishra remanding the file with the direction that in respect of both of them, learned trial court shall reconsider and re-visit as to whether Ankur Mishra and Manidhar Mishra may be summoned in exercise of power under section 319 Criminal Procedure Code in the light of the guidelines provided in the case of Hardeep Singh Vs. State of Punjab : (2014) 3 SCC 92 and shall pass fresh order in respect of summoning of these two accused persons. For remaining revisionists, revision was rejected finding no illegality and infirmity in the order of the learned trial court in respect of them. Therefore, matter remained pending in respect of Ankur Mishra and Manidhar Mishra and the learned Sessions Judge, Basti was expected to pass fresh order. Subsequently, learned Sessions Judge, Basti, after hearing both the sides, passed the impugned order by which he summoned the accused, Ankur Mishra and Manidhar Mishra for the offence under Section 302/34 I.P.C. under Section 319 Cr.P.C. 5. Subsequently, learned Sessions Judge, Basti, after hearing both the sides, passed the impugned order by which he summoned the accused, Ankur Mishra and Manidhar Mishra for the offence under Section 302/34 I.P.C. under Section 319 Cr.P.C. 5. Aggrieved by this order, the present revision has been filed by the revisionists, Ankur Mishra and Manidhar Mishra challenging the impugned order on the basis that the learned trial court, after the case was remanded back to him, did not consider the directions given in the order of this Court and without considering the guidelines of the aforesaid judgments, impugned order was passed. It was not considered that Investigation Officer did not submit charge-sheet against them. Impugned order is based on the testimony of P.W. 2, Ashutosh Tiwari. During trial the statement of P.W. 1 Pradeep Kumar Tiwari, the applicant/complainant was also recorded but the same has not been considered while passing the said order. The testimony of P.W. 1 and P.W. 2 were inconsistent and as such was not reliable at all. It appears that they are not even eye witnesses of the case and the complainant has implicated all the family members of accused persons. Post-mortem report also did not support the prosecution version and only three injuries were found on the body of the deceased, hence, order is not sustainable in the eye of law and deserves to be quashed. It has been further submitted that the revisionist No. 1 is employed as Government Servant whereas revisionist No. 2 is in search of job. 6. It has been further submitted that in the judgment passed by this Court in the aforesaid Revision, an observation was made by this Court that 'so far as the complicity of Ankur Mishra, Manidhar Mishra are concerned appears to be specific role has been attributed to them in the testimony of PW-2'. For remaining persons, this Court absolutely did not find any case and to that effect observation has been incorporated in the judgment of this Court. The learned trial court passed the impugned order on the basis of aforesaid observation which is not justified in view of the judgment of this Court in the earlier Revision. 7. For remaining persons, this Court absolutely did not find any case and to that effect observation has been incorporated in the judgment of this Court. The learned trial court passed the impugned order on the basis of aforesaid observation which is not justified in view of the judgment of this Court in the earlier Revision. 7. Submission of the learned counsel for the revisionists is of two folds; firstly, that the guidelines which were required to be considered by the learned trial court in view of the order of this Court was not at all considered while summoning the revisionists and secondly, learned trial court did not consider the statement of witnesses in detail as directed by this Court. 8. It is pertinent to mention that initially the F.I.R. was lodged naming 8 accused persons. After investigation, charge-sheet was filed only against one Roop Narayan Giri and other 7 accused persons were given clean chit in the matter. 9. Since copy of the CD in which Investigation Officer has recorded the statements of witnesses is not on record, therefore, it is not possible to take some assistance in order to test as to on what ground, Investigation Officer did not submit charge-sheet against the revisionists/accused persons. Therefore, I have to confine to the statement which was recorded during trial. Before the learned trial court, P.W. 2 has been examined. It is admitted fact from both the sides that P.W. 1 is not an eye witness and he made statement on the basis of information given to him on mobile and on receiving information, he came to lodge F.I.R. P.W. 2 has been examined as eye witness before the trial court and he has given his statement before the trial court in which involvement of the accused persons/revisionists has been clearly stated. From the statement of P.W. 2, it appears that he has specifically stated that at the time of the incident, accused Roop Narain Giri was carrying sabbal and accused Ankur Mishra was also carrying sabbal whereas accused Manidhar Mishra was armed with knife and lathi. The witness has stated that when they started beating his grandfather, he saw the said incident himself and with him, his grand-mother also saw the incident. The witness has stated that when they started beating his grandfather, he saw the said incident himself and with him, his grand-mother also saw the incident. The learned trial court has further referred to the statement of PW-3 Smt. Ketaki Tiwari who has stated that she saw her husband surrounded by the accused persons on his cot. On noise, her grandson told her that her husband was being beaten. She saw her husband was being beaten by accused Roopnarain Giri and Ankur Misra hitting her husband by sabbal and others were carrying lathi and have surrounded him. Seeing that all the accused persons surrounded her husband and beating him, she cried and fainted. Thus, the learned trial court found that both PW-2 and PW-3 are eyewitnesses and have stated that accused Roop Narayan Giri and Ankur Mishra were carrying sabbal and other accused Manidhar Misra with lathi were striking the deceased. Thus, the learned trial court found enough evidence against the accused persons showing their involvement in the commission of offence. 10. Learned counsel for the revisionists has referred to the judgment rendered in the Case of Sunil Kumar Gupta and others Vs. State of U.P. and others, (2019 (108) ACC 29), in which Supreme Court visited the law on the point of Section 319 Cr.P.C., that refers to the judgment of Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92 and Sarabjit Singh and another Vs. State of Punjab and another, (2009) 16 SCC 46 and has concluded that for summoning the accused under section 319 Cr.P.C. much stronger evidence than mere probability of complicity of such persons is required and it should appear that if such evidence remains un-rebutted, the trial would result in conviction. It is also to be seen as to whether impugned order which has been passed in consonance with the said guidelines and the law laid down. 11. Section 319 Cr.P.C. reads as under:- "319. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub-section (1), then- (a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." 12. In Hardeep Singh (supra), the Constitution Bench has settled the law in respect of Section 319, Criminal Procedure Code. that the standard of proof employed for summoning a person as an accused under Section 319 is higher than the standard of proof employed for framing a charge against an accused. The Supreme Court observed for the purpose of Section 319 as under: "..... What is, therefore, necessary for the Court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to the conviction of a person sought to be added as the accused in the case." Regarding the degree of satisfaction necessary for framing a charge, the Court observed: "However, there is a series of cases wherein this court while dealing with the provisions of Sections 227, 228, 239, 240, 241, 242 and 245 of the Cr.P.C., has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further". The Court concluded as below: "106. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further". The Court concluded as below: "106. 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 unrebutted, would lead to conviction......" 13. In Babubhai Bhimabhai Bokhiria vs. State of Gujarat, 2014 (5) SCC 568 , the aforesaid view of Hardeep Singh (supra) has been further quoted with approval and the Supreme Court has held as under:- "Section 319 of the Code confers power on the trial court to find out whether a person who ought to have been added as an accused has erroneously been omitted or has deliberately been excluded by the investigating agency and that satisfaction has to be arrived at on the basis of the evidence so led during the trial. On the degree of satisfaction for invoking power under Section 319 of the Code, this Court observed that though the test of prima facie case being made out is same as that when the cognizance of the offence is taken and process issued, the degree of satisfaction under Section 319 of the Code is much higher." 14. In Brijendra Singh vs. State of Rajasthan, AIR 2017 SC 2839 , the supreme court discussed the meaning of 'evidence' in section 319, Criminal Procedure Code and expressed the view that the examination-in-chief of prosecution witnesses is to be considered and there is no need to wait for cross-examination. The prima facie opinion and satisfaction with regards to complicity of the person in commission of the offence is not mere probability of involvement. It requires stronger and cogent evidence. The prima facie opinion and satisfaction with regards to complicity of the person in commission of the offence is not mere probability of involvement. It requires stronger and cogent evidence. In this case, the IO investigated the offence and did not submit charge-sheet for the reason that at the time of incident the appellant was at a distance of 175 km from the place of occurrence. The supreme court set aside the summoning order and observed that no doubt, the trial court can summon the person on the basis of the statement of witnesses given during trial. However, where plethora of evidence was collected by the IO including documentary evidence indicating his plea of alibi to be correct, the trial court is duty bound to consider the evidence so collected by IO while forming opinion and recording satisfaction regarding prima facie case for the purpose of section 319 of the Criminal Procedure Code. 15. The view expressed in Hardeep Singh (supra) has been further reiterated in Labhuji Amaratji Thakor vs. State of Gujarat, AIR 2019 SC 734 and has laid down that 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 unrebutted, would lead to conviction. The Supreme Court set aside the order of the High Court and up held the order of Court below rejecting the application under section 319. 16. In Rakesh vs. State of Haryana, AIR 2019 SC 2168 , It appears that the facts of the case was quite similar in the case before the Supreme Court as in that case also the name of the persons was not mentioned in the FIR and when the statement under section 161 Cr.P.C. was recorded by the Investigating Officer, the name of these persons did not find mention. The supreme court again considered the ambit of section 319 and laid down as follows: "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 supreme court again considered the ambit of section 319 and laid down as follows: "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 charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction." 17. What is important is that the learned trial court discussed the statement of PW-2 and PW-3 and found sufficient evidence showing involvement of and for proceeding against the revisionists Ankur Mishra and Manidhar Mishra for the offence under Section 302/34 IPC. After reaching this conclusion, the learned trial court took support in favour of the conclusion by referring to the observation of this court in the judgment of earlier Revision in which this court has observed to the effect that in the testimony of PW-2, specific role has been attributed to two accused persons Ankur Mishra and Manidhar Mishra. I do not find anything wrong in it and it cannot be said that the learned trial court has summoned the revisionists only on the basis of the aforesaid observation of this Court. 18. So far as submission of the learned counsel for the revisionists with regard to non mentioning of judgment of the Supreme Court is concerned which has been pointed out in the earlier judgment of this Court in the said revision, of course, it appears to be missing, but, this revision is not to be decided on this basis or on the basis why the learned trial court did not mention or discuss those references. 19. In the situation like this, where two eyewitnesses supported the prosecution version and have stated the involvement of these two accused persons in commission of the offence and if the same remains unrebutted, the prosecution will certainly succeed, and also considering the fact that these two accused persons/revisionists were named in the F.I.R., I find that there remains no reason as to why and how otherwise conclusion could be reached by the learned trial court with regard to these two accused person. 20. 20. In view of the above, I am of the view that there is no substance in the arguments of the learned counsel to the revisionists and the impugned order does not suffer from any illegality, infirmity or jurisdictional error. Revision has no force and is liable to be dismissed. 21. The revision is accordingly, dismissed.