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Allahabad High Court · body

2020 DIGILAW 444 (ALL)

Jaswant v. State of U. P.

2020-02-10

SANJAY KUMAR SINGH

body2020
JUDGMENT : 1. Mr. Ajay Sengar, learned Advocate has filed his appearance slip today on behalf of opposite party No. 2/informant, which is taken on record. 2. Heard Mr. Ashok Nath Tripathi, Mr. Gopal Krishna, Mr. Rakesh Nath Tripathi, learned counsel appearing for the applicant, Mr. Ajay Sengar, learned counsel for the opposite party No. 2/informant and Mr. Shiv Sewak Ram Dwivedi, learned Additional Government Advocate assisted by Mr. Raj Mani Yadav, learned brief holder representing the State and perused the materials available on record. 3. By means of this application under section 482 of the Code of Criminal Procedure, herein after referred as "Cr.P.C" the applicant has invoked the inherent jurisdiction of this Court for quashing of the order dated 26.11.2019 passed by learned Sessions Judge, Jalaun at Orai in Sessions Trial No. 30 of 2019 (Lakhan and others vs. State of U.P. and another) arising out of Case Crime No. 326 of 2018, police station Kotwali, district Jalaun, whereby the application No. 16-Kha dated 3.7.2019 moved by the informant, Premnarayan under section 319 Cr.P.C. was allowed and applicant, Jaswant was summoned to face the trial for the offence punishable under Sections 147, 148, 302/149, 323/149, 504 and 506 IPC as well as entire proceedings of aforesaid case. 4. In short compass, the facts of the case are that a written report was lodged by the informant of the case, namely, Premnarayan on 09.11.2018 at the police station Kotwali Koanch, district Jalaun against accused-persons, Lakhan, Man Singh, Sahab Singh, Jaswant (present applicant) and Yatendra to the effect that on 08.11.2018 at 5.00 p.m., while he was sitting along with his brother, Sundar (deceased), and witnesses, Mahendra, Gajendra, Karan Singh and Sitaram at the door platform (Chabootra) of Gajendra situated in front of his house, the accused, Man Singh came there and abused the aforesaid persons that they were laughing at him. Thereafter, accused, Man Singh left the place giving threat to the persons sitting there, and after some time, he along with accused, Lakhan, Sahab Singh, Jaswant (applicant) and Yatendra came there and with an intention to kill, accused Lakhan and Man Singh caught hold of deceased, Sundar and accused Jaswant (applicant) fired at him by his country made pistol (Katta), as a result thereof, he received pellet injuries on his forehead and succumbed to the injury. The accused Sahab Singh also fired at the deceased by his weapon, but his shot did not hit the deceased. The accused persons also cordoned the aforesaid persons with a common intention and started beating them with lathi and danda, due to which, witnesses Gajendra, Mahendra, Karan and Sitaram also received grievous injuries. It is further mentioned in the report that there was old enmity between the parties. 5. On the basis of the aforesaid written report, a case was registered at Case Crime No. 326 of 2018, under Sections 147, 148, 149, 323, 504, 506 and 302 IPC, police station Kotwali, district Jalaun, 6. On 09.11.2018 post-mortem of deceased, Sundar was conducted and following injuries were found on his person:- 1. Wound of entry 3 cm X 1.5 cm on right parietal region oval shaped 2 cm medial from right ear & 5 cm lateral to Rt. Orbit. Margins are lacerated. Edges are inverted and irregular. No blackening, scorching, tattooing seen. 2. No other external visible injury seen. 3. No exit wound present. 7. During Investigation, statements under Section 161 Cr.P.C. of informant, Premnarayan and Mahendra Singh have been recorded, in which they have reiterated the prosecution version as mentioned in the first information report in which specific allegations have been levelled against the applicant, Jaswant that while the deceased was caught hold of by Man Singh and Lakhan Singh, Jaswant fired at the deceased, hitting on his forehead. Due to the injury received by the deceased he died. However, in their statements recorded under Section 161 Cr.P.C. other witnesses, namely, Gajendra Singh, Karan Singh, Anil Kumar Kori, Deep Narayan Pal, Ramesh Singh Pal and Shyam Kishore Rathore have stated that co-accused, Jahar Singh fired at deceased, Sundar, causing his death. 8. After the culmination of investigation, the Investigating Officer submitted charge sheet dated 18.1.2019 against Lakhan Singh, Man Singh, Sahab Singh, Yatendra and Jahar Singh under Sections 147, 148, 302/149, 323/149, 504 and 506 IPC and exonerated the present applicant, Jaswant from all the charges. 9. 8. After the culmination of investigation, the Investigating Officer submitted charge sheet dated 18.1.2019 against Lakhan Singh, Man Singh, Sahab Singh, Yatendra and Jahar Singh under Sections 147, 148, 302/149, 323/149, 504 and 506 IPC and exonerated the present applicant, Jaswant from all the charges. 9. It is also pointed out that Ramesh Kumar has also lodged first information report dated 09.11.2018 at 10.33 PM with regard to alleged incident dated 08.11.2018 at 5.00 PM against Sundar, Mahendra Singh, Premnarayan, Gajendra, Parichat, Sitaram and Purshuram, which was registered as Case Crime No. 334 of 2018, under Sections 147, 148, 149, 323, 504, 506 and 308 IPC, police station Kotwali Konch, district Jalaun with the allegation of causing injuries to Surajpal, Jitendra, Man Singh and Sahab Singh, in which also charge sheet dated 22.1.2019 has been submitted by the Investigating Officer against Mahendra Singh, Premarayan, Gajendra Singh and Sitaram for the offence under Sections 147, 148, 149, 323, 504, 506 and 325 IPC as no offence against Mahendra Singh, Premarayan, Gajendra Singh and Sitaram was made out under Section 308 IPC. 10. As the case against the applicant at Case Crime No. 326 of 2018, police station Kotwali, district Jalaun was exclusively triable by the court of Sessions, the learned Magistrate committed the case to the court of sessions, where case was registered as Sessions Trial No. 30 of 2019. 11. In the trial, evidence of informant, Premnarayan, who was examined as PW-1 and injured Mahendra Singh, who was examined as PW-2 has been recorded. 11. In the trial, evidence of informant, Premnarayan, who was examined as PW-1 and injured Mahendra Singh, who was examined as PW-2 has been recorded. Both the aforesaid prosecution witnesses in their evidence have specifically stated that the deceased was caught hold by accused, Man Singh and Lakhan Singh, whereas Jaswant fired at the deceased, which hit on forehead of the deceased The relevant part of statements of PW-1 and PW-2, which is against the present applicant is reproduced herein below:- Statement of PW-1 Premnarayan xxxx blds ckn yk[ku vkSj eku flag us lqUnj dks idM+ fy;kA tloUr us vius reaps ls Qk;j dj fn;kA mlds ckn lkgc flag us Hkh xksyh pyk;hA ysfdu tloUr dh xksyh HkkbZ lqUnj dks yxh vkSj ykBh M.Mksa ls lHkh yksx ekjus yxsA ge yksx tc cpkus ds fy, igqaps rks ge yksxksa ds lkFk Hkh ekjihV dh ftlesa egsUnz] lhrkjke] xtsUnz] dju flag bu lHkh dks xEHkhj pksVsa vk;haA Statement of PW-2, Mahendra Singh xxxx rHkh eku flag o yk[ku flag us esjs firk lqUnj flag dks idM+ fy;kA tloUr flag us vius reaps ls esjs firk lqUnj flag dks xksyh ekj nh tks esjs firk lqUnj flag ds flj ij yxhA rHkh lkgc flag us Hkh xksyh pyk;hA rc ge yksx cpkus vk;sA rc ge yksxksa dh Hkh ekjihV dh dju flag] lhrkjke] xtsUnz flag o esjh ekjihV dh A eq>s Hkh pksVas vk;h FkhaA 12. On the basis of aforesaid evidence, application under Section 319 Cr.P.C. dated 37.2019 was moved by the informant/opposite party No. 2, which has been allowed by the trial court. The said impugned order dated 26.11.2019 is under challenge in the present case. 13. Assailing the impugned order dated 26.11.2019, the main substratum of argument of learned counsel for the applicant is that merely on the basis of statements of PW1 and PW-2, applicant cannot be summoned as an additional accused to face trial unless entire prosecution witnesses are examined. 14. It is next submitted by learned counsel for the applicant that merely by taking the name of applicant, he cannot be summoned. It is also submitted by learned counsel for the applicant that during investigation some of the witnesses have stated that fire was made by Jahar Singh, therefore, charge sheet was not submitted against the applicant, Jaswant. 14. It is next submitted by learned counsel for the applicant that merely by taking the name of applicant, he cannot be summoned. It is also submitted by learned counsel for the applicant that during investigation some of the witnesses have stated that fire was made by Jahar Singh, therefore, charge sheet was not submitted against the applicant, Jaswant. PW-1 and PW-2 deliberately taken his name assigning the role of firing on deceased with ulterior motive, which cannot said to be more than prima facie, therefore, impugned order dated 26.11.2019 is not sustainable in the eye of law and liable to be quashed by this Court. 15. Learned counsel for the applicant has placed reliance upon the judgments of Hon'ble the Apex Court in the cases of Labhuji Amratji Thakor and others vs. State of Gujarat and others; AIR 2019 SC 734 and Hardeep Singh vs. State of Punjab and others; 2014 (3) SCC 92 or Shiv Prakash Mishra vs. State of Uttar Pradesh and another 2019 (7) SCC 806 to contend that the power under Section 319 Cr.P.C. can be exercised only where strong and cogent evidence are found against a person and not in a casual and cavalier manner. The decree of satisfaction before summoning the offence under Section 319 Cr.P.C. must be more than prima facie, which is warranted at the time of framing of charges against the accused. 16. Per contra, learned Additional Government Advocate supported the order of the court below and vehemently opposed the aforesaid submissions of learned counsel for the applicant by contending that in the first information report there is specific allegation of firing against the applicant, which hit the deceased and thereby he died. The statement of informant, recorded during trial as PW-1 is consistent. PW-2 has also given same statement against the applicant, which is much more than prima facie evidence against the applicant. It is also submitted by learned Additional Government Advocate that the cross-examination of PW-1 and PW-2 has already been completed. 17. In the present case there was specific allegations against the applicant and the enmity between the accused and the complainant was existing. It is a broad day light murder, which took place at 5.00 p.m. in front of the house of the informant. 17. In the present case there was specific allegations against the applicant and the enmity between the accused and the complainant was existing. It is a broad day light murder, which took place at 5.00 p.m. in front of the house of the informant. It is not expected from the injured to depose wrong facts and frame a false case against the applicant leaving the real culprits to go scot free. 18. Before adverting to the claim of the parties, it would be useful to quote Section 319 Cr.P.C. “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.” 19. From the perusal of Section 319 Cr.P.C., it is clear that it is the duty of the Court to see that no accused is left unpunished. Where the investigating agency for any reason does not array the real culprit as accused, the Court is empowered to call the said accused to face the trial. 20. The moot question involved in the present case is as to at which stage the power should be exercised in respect of a person named in the FIR, but not charge sheeted and the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. 21. 20. The moot question involved in the present case is as to at which stage the power should be exercised in respect of a person named in the FIR, but not charge sheeted and the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. 21. These two questions, where specifically dealt with by the Constitution Bench of Hon’ble Supreme Court in Hardeep Singh and others (Supra), where the Court held as under: “Thus, in view of the above, we hold that power under Section 319 Cr.P.C. can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross-examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence” x x x x x x “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 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter.” 22. The Court further held as under : “Power under Section 319 Cr.P.C. 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. 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. 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. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. 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 Cr.P.C.. to form any opinion as to the guilt of the accused.” 23. The Division Bench of Hon’ble Supreme Court in Vikas Vs. State of Rajasthan (2014)3 SCC 321 has 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. 24. While dealing with the duty and power of the Court under Section 319 Cr.P.C., Hon’ble Supreme Court in Brijendra Singh and others Vs. State of Rajasthan, 2017(7) SCC 706 has held as under: “It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.” xx xx xx “The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.” It also goes without saying that Section 319 Cr.P.C., which is an enabling provision empowering the Court to take appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge-sheet is filed and before the pronouncement of the judgment, except during the stage of Section 207/208 Cr.P.C., the committal etc., which is only a pretrial stage intended to put the process into motion.” 25. The aforesaid principles have further followed by Hon’ble the Supreme Court in the cases of Periyasami and others Vs. S. Nallasamy; 2019 (4) SCC 342 , Sugreev Kumar vs. State of Punjab and others; AIR 2019 SC 2903 , Shiv Prakash Mishra vs. State of Uttar Pradesh; 2019 (7) SCC 806 and Mani Pushpak Joshi vs. State of Uttrakhand and another; AIR 2019 SC 5263 . 26. In the instant case the first information report has been lodged on 09.11.2018 with the allegations that on 08.11.2018 at about 5.00 P.M., while the informant was sitting along with his brother Sundar (deceased) and witnesses Mahendra, Gajendra, Karan Singh and Sitaram at the platform of Gajendra in front of his house, after some altercation, accused Lakhan, and Man Singh caught hold of his brother (deceased) whereas accused Jaswant (the present applicant) fired at him by the country made pistol, due to which he died. The version of the FIR was categorically reiterated by the first informant in his statement recorded under Section 161 Cr.P.C. Witnesses Mahendra Singh and Sita Ram have also stated that it was Jaswant (the applicant), who had fired at the deceased. However, some of the witnesses namely Gajendra, Karan, Anil Kumar Kori, Deep Narayan Pal, Ramesh Singh Pal and Shyam Kishore Rathore in their statements under Section 161 Cr.P.C have stated that it was co-accused Jahar Singh, who fired at the deceased. However, some of the witnesses namely Gajendra, Karan, Anil Kumar Kori, Deep Narayan Pal, Ramesh Singh Pal and Shyam Kishore Rathore in their statements under Section 161 Cr.P.C have stated that it was co-accused Jahar Singh, who fired at the deceased. The investigating officer on the basis of the statements of Gajendra, Karan, Anil Kumar Kori, Deep Narayan Pal, Ramesh Singh Pal and Shyam Kishore Rathore has exonerated Jaswant and in his place name of Jahar Singh has been introduced as accused, whereas the name of Jahar Singh did not find place in the FIR lodged by the first informant. 27. In the trial, the first informant Premnarayan was examined as PW-1 and injured Mahendra Pal has been examined as PW-2. Both the witnesses in their examination-in-chief have clearly deposed that accused Lakhan and Man Singh have caught hold of the deceased-Sundar, whereas accused-Jaswant (the present applicant) fired from his country made pistol, which hit the deceased. At this stage the evidence of PW-1, the first informant of the case, who was also an eyewitness of the case and PW2, Mahendra Pal, who is an injured witness cannot be discarded. 28. In view of above, it can safely be hold that the learned Sessions Judge while passing the impugned order dated 26.11.2019 was fully satisfied that there are strong and cogent evidence against the applicant and has not passed the order in a casual manner. 29. The order passed by the learned Sessions Judge was in consonance with the law laid down by Hon’ble Supreme Court in Hardeep Singh; Labhuji Amratji Thakor and others; Shiv Prakash Mishra; Vikas; and Brijendra Singh and others(Supra)and it cannot be said that the order of the learned Sessions Judge is in the teeth of the order of Hon’ble Supreme Court indicated referred to above. 30. Each case must be decided on its own facts and merit. Even one additional or different fact may make big difference between the conclusion in two cases, because even a single significant detail may alter entire aspect. 31. Considering the facts, materials on record as well as statements of PW-1 and PW-2, as mentioned above, this Court is also of the view that the evidence which has come on record against the applicant are much more than prima facie and are sufficient to proceed against the applicant in exercise of power under Section 319 Cr.P.C. 32. 31. Considering the facts, materials on record as well as statements of PW-1 and PW-2, as mentioned above, this Court is also of the view that the evidence which has come on record against the applicant are much more than prima facie and are sufficient to proceed against the applicant in exercise of power under Section 319 Cr.P.C. 32. In view of what has been indicated herein above, I do not find any illegality or irregularity in the order dated 26.11.2019 passed by the learned Sessions Judge, Jalaun at Orai summoning the applicant under Section 319 Cr.P.C. to face the trial under Sections 147, 148, 302/149, 323/149, 504 and 506 IPC along with other accused. 33. The application is bereft of merit. It is accordingly rejected.