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2021 DIGILAW 721 (ALL)

Vineet v. State of U. P.

2021-07-26

SUBHASH CHANDRA SHARMA

body2021
JUDGMENT : 1. Counter affidavit filed today by the State is taken on record. 2. Office report indicates that notice has been served personally upon opposite party no. 2 but none has appeared on her behalf. 3. This appeal has been filed against the order dated 16.01.2021 passed by Special Judge, S.C./S.T. (Prevention of Atrocities) Act, 1989, Muzaffar Nagar in Special Session Trial No. 826 of 2017 (State Vs. Raju) arising out of Case Crime No. 325 of 2017, under Section 302, 201, 328 IPC and Section 3(2)V S.C./S.T. Act by which appellant has been summoned under Section 319 Cr.P.C. for trial. 4. Brief facts of the case are that on 22.2.2017 at about 3 o'clock, informant Smt. Krishna Devi was at her home along with her son Ashish, daughter-in-law Savita and daughter Archana @ Rachana. Vineet came to her house and took her daughter Archana to engage her employment. He took Rs. 15,000/- from her and took her daughter on the pretext of service. Till evening, her daughter Archana did not return. She made search of her and also tried to contact on mobile but it was switched off. On the same day at about 3.30 p.m. her daughter Archana and accused Vineet met to her son Sachin at Idgah. On query by Sachin, Vineet told that he was taking Archana for employment. On 24.2.2017 in the morning informant saw the photo of Archana in the newspaper and came to mortuary with her relatives where dead body of her daughter was lying. She identified her and became sure that Vineet had cancealed the dead body of her daughter after committing her murder in the field of wheat and F.I.R. in this regard was lodged on 24.02.2017 at Police Station Kotwali Nagar, Muzaffar Nagar. 5. During investigation, it was found that Vineet was not real culprit but Raju was real culprit who was in love affair with deceased and deceased made pressure on him to get married but being already married Raju refused and he brought with him poison which he mixed in the bottle of water and gave her to drink. She drank water from the bottle and died, thereafter her dead body was cancealed in the field. Statements of informant and her son were recorded and on conclusion of investigation charge sheet against accused Raju was submitted by the police and this appellant Vineet was exonerated. She drank water from the bottle and died, thereafter her dead body was cancealed in the field. Statements of informant and her son were recorded and on conclusion of investigation charge sheet against accused Raju was submitted by the police and this appellant Vineet was exonerated. During trial informant Smt. Krishna Devi was examined before the court. She again named Vineet to have committed the murder of her daughter with Raju. An application under Section 319 Cr.P.C. was moved on her part on which the order dated 16.01.2021 was passed by the court which is in question in this appeal. 6. Heard Sri Sandeep Shukla, Advocate holding brief of Sri Sushil Kumar Pandey, learned counsel for the appellant, learned A.G.A. for the State and perused the record. 7. Learned counsel for the appellant submits that in this case appellant Vineet was named in the F.I.R. but during investigation no evidence was found against him for committing murder of deceased. There was love affair between Raju and deceased. Raju was already married. For saving himself from the affair of deceased, he gave her poison in water to drink. As a result, she died and he cancealed her dead body in the field of wheat. Charge sheet was also filed against Raju and appellant Vineet was exonerated. 8. During investigation, statement of informant was recorded by Investigating Officer in which she disclosed the name of Raju as real culprit and made no allegation against Vineet. Statements of Chandrabosh and Ashish, sons of informant and brothers of deceased were also recorded during investigation in which they stated about accused Raju to have committed the murder of their sister but did not state about participation of appellant Vineet in her murder. In this way, there is no evidence against the appellant connecting them to the commission of crime. F.I.R. has also been lodged after two days delay. Different story was narrated in the F.I.R. and matter was found different during investigation. During trial statement of informant was recorded before the court. She again narrated the involvement of appellant Vineet as taking the deceased with him on the pretext of giving employment. At that time, Raju was also with him. As a result, she became sure that Vineet and Raju has committed murder of her daughter Archana. During trial statement of informant was recorded before the court. She again narrated the involvement of appellant Vineet as taking the deceased with him on the pretext of giving employment. At that time, Raju was also with him. As a result, she became sure that Vineet and Raju has committed murder of her daughter Archana. On the basis of statement of P.W. 1 informant, learned trial court has summoned the appellant Vineet for trial which is against the spirit of provisions contained under Sections 319 Cr.P.C. Learned trial court has passed the order casually without applying his legal mind. 9. Learned counsel for the appellant relied his argument on the basis of law as laid down by Hon'ble Apex Court in the case of Sunil Kumar Gupta and others Vs. State of Uttar Pradesh and others (2019) 4 SCC 556 , Brijendra Singh and others Vs. State of Rajasthan 2017 (2) JIC 825 SC and Hardeep Singh Vs. State of Punjab (2014) 3 SCC 92 . 10. Learned A.G.A. urged that in this case appellant was named by informant in F.I.R. During investigation, her statement was not recorded by the Investigating Officer in proper way. During trial she has again supported the version as mentioned in the F.I.R. Appellant was the person who took deceased from her house on the pretext of giving her employment. Accused Raju was also with him. Both of them have committed the murder of deceased. During trial the informant has been examined and subjected to cross-examination. She has supported the complicity of appellant. Learned trial court has taken in view all the fact and circumstances of the case while passing the order in question. The order impugned is based on settled principles of law. It is not illegal but appeal is devoid of merit and liable to dismissed. 11. Section 319 Cr.P.C. confers powers on the court to proceed even against those persons who are not arraigned as accused. 12. The principles for exercise of power under Section 319 Cr.P.C. by Criminal Court are well settled. The Constitution Bench of the Hon'ble Apex Court in Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 , has elaborately considered all contours of Section 319 Cr.P.C. The Court has held that Power under Section 319 Cr.P.C. is a discretionary and extra-ordinary power which has to be exercised sparingly. The Constitution Bench of the Hon'ble Apex Court in Hardeep Singh Vs. State of Punjab and others, (2014) 3 SCC 92 , has elaborately considered all contours of Section 319 Cr.P.C. The Court has held that Power under Section 319 Cr.P.C. is a discretionary and extra-ordinary power which has to be exercised sparingly. The Court further held 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. In paragraph 105 and 106, following has been laid down: - "105. Power under Section 319 CrPC is a discretionary and an extraordinary 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. 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 un-rebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC 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 CrPC to form any opinion as to the guilt of the accused." 13. The Two-Judge Bench of the Hon'ble Supreme Court again reiterated the same ratio in Rajesh and others Vs. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused." 13. The Two-Judge Bench of the Hon'ble Supreme Court again reiterated the same ratio in Rajesh and others Vs. State of Haryana (2019) 6 SCC 368 . 14. From perusal of order in question it transpires that though the learned trial court has considered the statement made by informant as P.W.1 but gave more weight to the material contained in parcha no. 14 of case diary and has concluded that Investigating Officer has found the involvement of accused appellant Vineet to be false but has not given any solid conclusion about his non-complicity. It shows that learned trial court has not acted in accordance with settled law as propounded by Hon'ble Supreme Court in aforementioned cases. In this way, order passed by learned Special Judge S.C./S.T. Act, not being in accordance with established principles of law, cannot be said to be sound, therefore, it cannot sustain. Appeal has force and liable to be allowed. 15. Accordingly, the appeal is allowed. 16. Order dated 16.01.2021 passed by learned Special Judge S.C./S.T. Act in Session Trial No. 826 of 2017 under Section 319 Cr.P.C. is hereby set aside and matter is remitted back to the trial court to decide it afresh as per principles of law or if it appears to the court necessary to arrive at the right conclusion, it may also record the statements of witnesses Chandrabosh and Ashish, those are said to be brothers of deceased.