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2022 DIGILAW 213 (JK)

Mohan Singh v. State of J&K

2022-05-07

SINDHU SHARMA

body2022
JUDGMENT : 1. This petition under Section 561-A of Cr.P.C. has been filed by the petitioners as they are aggrieved of the order dated 25.05.2018, passed by the Principal Sessions Judge, Kathua whereby the application of the petitioners for arraigning respondent Nos. 2, 3 and 4 as co-accused has been dismissed. 2. The petitioners-Mohan Singh and Inder Singh, brother and father of the deceased have filed this petition on the ground that the order impugned is illegal, as on the evidence collected by the prosecution all the persons named in the application ought to have been arraigned as accused in the case in which the prosecution has arraigned only Mohan Singh and his father Samunder Singh, now deceased and filed Challan against them. 3. The private respondents are the brothers of the accused-Mohan Singh and according to the allegations made by the petitioners, they were members of the unlawful assembly and, therefore, jointly guilty of offence punishable under Section 302 read with Section 149 of IPC. 4. Since the private respondents were the first who assaulted the deceased before the father of the accused instigated the accused to kill the deceased and accused hit the deceased with the 'Drat' which he was having, so all of them are vicariously liable for murder. 5. It is only on the basis of the order of the then learned Sessions Judge, Kathua dated 03.06.2013, that the statement of Inder Singh was recorded under Section 164-A of Cr.P.C., whether such direction could be issued by the trial Court in view of the mandate of section, as it is the satisfaction of the Investigating Officer that evidence of Sh. Inder Singh was material and essential for proper investigation of the case not the functions of the Court to doubt. It appears that the Court proceeded on the averments made in the application, while issuing such a direction to record his statement though even the direction to investigate the case is against the law laid down by the Hon'ble Supreme Court. 6. The contention of Mr. A.P. Singh, learned counsel is that the accused constituted an unlawful assembly and, therefore, assuming that the Act committed by A-1 at the instigation of A-2 deceased the other members cannot escape the liability as they had assaulted the deceased before he was hit by A-1, at the behest of his father (now dead). 7. 6. The contention of Mr. A.P. Singh, learned counsel is that the accused constituted an unlawful assembly and, therefore, assuming that the Act committed by A-1 at the instigation of A-2 deceased the other members cannot escape the liability as they had assaulted the deceased before he was hit by A-1, at the behest of his father (now dead). 7. However, unlawful assembly as defined in Section 141 of IPC as observed by their lordships of the Hon'ble Supreme Court in "Dev Karan @ Lambu vs. State of Haryana (2019) 8 SCC 596 , (in Para 19 and 20) is reproduced below : "...19. Thereafter, it has been opined that if charges framed against the appellant contain all the necessary ingredients to bring home to each of the member of the unlawful assembly, the offence, with aid of Section 149 of the IPC, and the prosecution proves the existence of an unlawful assembly with a common object, which is the offence, as also the membership of each appellant, nothing more is necessary. The effect of these observations is that Section 141 of the IPC only defines what is an unlawful assembly and in what manner the unlawful assembly conducts itself, and in what cases the common object would make the assembly unlawful is specified in the Sections thereafter, inviting the consequences of the appropriate punishment in the context of Section 149 of the IPC. 20. In Kuldip Yadav & Ors. v. State of Bihar, it has been opined in para 36 that a clear finding regarding the nature of the common object of the assembly must be given and the evidence discussed must show not only the common object, but also that the object was unlawful, before recording a conviction under Section 149 of the IPC. What is required is that the essential ingredients of Section 141 of the IPC must be established." 8. Common object to hold the assembly unlawful only can be proved from circumstances of the case but it is in the statement of Mohan Singh that the accused persons who were present on spot questioned A-1 as to why he was cutting the branches of the tree which belongs to them. 9. Common object to hold the assembly unlawful only can be proved from circumstances of the case but it is in the statement of Mohan Singh that the accused persons who were present on spot questioned A-1 as to why he was cutting the branches of the tree which belongs to them. 9. It is admitted case of the parties that the accused is the real brother of deceased Samunder Singh and the accused A-1 claimed that he has a right to 'Shakh Taraashi' i.e. to cut the branches of the tree, while prosecution witness claimed that the tree exclusively belongs to them as per the will executed by their grandfather. 10. It is also not disputed by the prosecution that the non-applicants assaulted the deceased only with feet as they were not armed which is a circumstance against the petitioners. As per the statement of PW Inder Singh, after the deceased got down from the tree only Jaimal Singh, Sohan Singh, Varinder Singh and Angrez Singh started assaulting him. 11. Mr. Singh, next argued that it is only the examination-in-chief and not any other evidence which is to be appreciated while considering an application under Section 319 of Cr.P.C., this argument has been controverted by the learned counsel for the respondents Mr. R.S. Thakur, by referring to the decision of the Constitution Bench in "Hardeep Singh & Ors. vs. State of Punjab & Ors. (2014) 3 SCC 92 ", which has also been relied upon by the trial Court by reproducing Para 24 in Para 10 of the impugned order. The statements of PW Mohan Singh and Inder Singh do not show the complicity of the respondent because the trial Court has also found that there is no other injury except the head injury of which the deceased died. Therefore, oral evidence in the absence of any hematoma on the body of the deceased could not be a ground to summon the respondent Nos. 2 to 4 as accused person in view of the law laid down in Paras 105 & 106 of the Constitution Bench in "Hardeep Singh & Ors. vs. State of Punjab & Ors. (2014) 3 SCC 92 ", which is reproduced below : "105. 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. vs. State of Punjab & Ors. (2014) 3 SCC 92 ", which is reproduced below : "105. 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. 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. 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." 12. Relying on this, their lordship of the Hon'ble Supreme Court in "Sagar vs. State of U.P. and another" in Criminal Appeal No. 397 of 2022, decided on 10.03.2022, while setting aside the order of the High Court of Judicature at Allahabad had held as under : "9. Relying on this, their lordship of the Hon'ble Supreme Court in "Sagar vs. State of U.P. and another" in Criminal Appeal No. 397 of 2022, decided on 10.03.2022, while setting aside the order of the High Court of Judicature at Allahabad had held as under : "9. The Constitution Bench has given a caution that power under Section 319 of the Code is a discretionary and extraordinary power which should be exercised sparingly and only in those cases where the circumstances of the case so warrant and the crucial test as noticed above 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 Learned Single Judge of the High Court has even failed to consider the basic principles laid down by this Court while invoking Section 319 of the Code, which has been considered by the learned trial Judge under its order dated 30th January, 2018." 13. Since the power to arraign the accused under Section 319 of Cr.P.C. is discretionary and the learned trial Court has rightly exercised the discretion by giving cogent reasons, while dismissing the application, therefore, there is no ground to tender a different view. 14. In view of the aforesaid discussions, there is no merit in this petition, accordingly, the same is dismissed. Consequently, CRR No. 13/2019 also stands dismissed.