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2023 DIGILAW 1179 (JHR)

Mahendra Yadav v. State of Jharkhand

2023-09-21

SUBHASH CHAND

body2023
JUDGMENT : Heard the learned counsel for the petitioners and the learned counsel for the opposite party no.2 and also the learned Spl. PP for the State. 2. This criminal revision is against the order dated 15.03.2022 passed by the learned Additional Sessions Judge-VII, Hazaribagh in Misc. Cr. Application No.298 of 2021 whereby the learned court below had allowed the application of the informant under section 319 of Cr.PC directing to issue summons against the petitioners to face the trial with Chouparan P.S. Case No. 214 of 2012 dated 09.10.2012 corresponding to G.R. Case No.4202 of 2012 registered under sections 341, 323, 504, 307, 427 and 143 of IPC. 3. The learned counsel for the petitioners has submitted that though all the petitioners were named in the FIR but the charge-sheet was not filed against them. The Court concerned while taking cognizance on the charge-sheet also took cognizance against those only against whom the IO had already filed the charge-sheet. No cognizance was taken by the court concerned against the petitioners. After commencement of trial, the five witnesses were examined and among them PW2-Chandri Devi was the informant, PW3-Nageshwar Yadav was the husband of informant, PW4-Asha Devi is the wife of the son of informant, PW5-Birendra Yadav is the son of informant. These all the four were interested witnesses and PW1-Naresh Ravidas was the chaukidar he had not witnessed any of the occurrence which are stated in the FIR and contended that the court below had committed error in summoning the petitioners while no charge-sheet was filed against them and also contended that the testimony of these witnesses were not sufficient to summon the petitioners for the offence alleged. 4. The learned counsel for the opposite party no.2 and learned Spl. PP on behalf of State submitted that there was ample evidence before the court concerned to summon these petitioners moreover all these petitioners were also named in the FIR and specific role has been attributed to them assaulting to the informant victim and all the four witnesses were the natural witness being related and interested; their testimony cannot be ignored taking into consideration that they were natural witness and also the injured one. 5. 5. As per FIR case, the informant victim Chandri Devi gave the written information report with the police station concerned with these allegations that on 09.10.2012 at 3 O'clock in the agricultural field adjoining to her house, Degni Devi, Sukri Devi, Meena Devi and China Devi all entered forcibly in their agricultural field and were cutting grass. She forbade them and all these accused did marpit with her and whereby she sustained injury in her hand and head as well. She was alone at her house and her husband and her son came from the market she told them in regard to the occurrence and her husband asked to the husbands of the accused. At this Sukri Devi, Meena Devi, China Devi, Degni Devi and fifth one is Ramkishun Yadav six Birju Yadav, seven Suresh Yadav eight Permeshwar Yadav, nine Mahendra Yadav all armed with tangi, bhala, farsa intruded in her house with intent to kill them and they assaulted whereby she sustained injury on her head and hand or other parts of the body. They intruded in their house and also assaulted to them causing them injured and thereafter all the accused persons had damaged the door and the roof of her house. Their intention in the marpit was to cause murder of her husband and son as well. 6. On this written information, the Case Crime No. 214 of 2012 was registered with the police station Chouparan for the offence under section 341, 323, 504, 307, 427 and 143 of IPC. 7. The investigating officer after concluding the investigation filed charge-sheet against Ramkishun Yadav, Birju Yadav, Suresh Yadav, Permeshwar Yadav, Meena Devi and no charge-sheet was filed against the petitioners. They were exonerated by the investigating officer. 8. When the trial commenced before the trial court the five witnesses were examined. PW1-Naresh Ravidas Chaukidar, PW2-Chandri Devi, PW3-Nageshwar Yadav, PW4-Asha Devi, PW5-Birendra Yadav and herein it is pertinent to mention that all these five witnesses were interrogated by the investigating officer during investigation and they have supported the prosecution story in their statement under section 161 of Cr.PC which is evident from the perusal of the case diary which is on record. 9. PW2-Chandri Devi is the informant and injured eye witness of the occurrence. In the FIR she has narrated two incidents. 9. PW2-Chandri Devi is the informant and injured eye witness of the occurrence. In the FIR she has narrated two incidents. One incident was of 3 O'clock which occurred when the informant had forbade the accused Degni Devi, Sukri Devi, Meena Devi and China Devi when they had cut the grass in the agricultural filed adjoining to her house and on the very issue, all these four had assaulted her whereby she sustained injury in her hand and head as well. Thereafter, in the FIR itself, she has stated that about second incident which occurred at her house. At the time of first incident, the only witness of the occurrence was the informant PW2-Chandri Devi and when her husband and her son both came from the market she told in the regard to the occurrence, thereafter, alongwith these four accused Sukri Devi, Meena Devi, China Devi, Degni Devi the accused Ramkishun Yadav, Birju Yadav, Suresh Yadav, Permeshwar Yadav, Mahendra Yadav all armed with tangi, bhala, farsa and lathi intruded in her house and assaulted to the informant and her husband and when son came to rescue, they also assaulted the son of informant. Therefore, the testimony of PW2-Chandri Devi who has corroborated the contents of the FIR and same is in consonance of her statement given under section 161 of Cr.PC. 10. PW3-Nageshwar Yadav is the husband of the informant. He is also the injured eye witness of the second incident which occurred in the very house of the informant. He has also stated that Degni Devi, Sukri Devi, China Devi, Meena Devi had hurled abuse to his wife when she forbade them from cutting grass. All these intruded to her house alongwith Ramkishun Yadav, Suresh Yadav, Mahendra Yadav, Permeshwar Yadav and Birju Yadav. Ramkishun Yadav armed with tangi, Suresh Yadav armed with bhala, others were armed with lathi, all the total accused were nine. His wife had sustained head injury caused by tangi he also came to rescue and all the accused persons having intruded in the house, also assaulted him. He also sustained injury in his right wrist which fractured. The injuries were also caused in other hand and on the forehead also. This witness is also the injured eye witness of the occurrence. 11. He also sustained injury in his right wrist which fractured. The injuries were also caused in other hand and on the forehead also. This witness is also the injured eye witness of the occurrence. 11. PW5-Birendra Yadav is the son of the informant he also corroborated the prosecution story wherein he stated that the accused persons had assaulted to her mother and father as well. His mother sustained head injury and father also sustained injury in his hands, the same were fractured. He also stated that his wife had informed to the police station concerned who at the behest of the officer in-charge of police station concerned the chaukidar came to his house. 12. PW4-Asha Devi also corroborated the prosecution story and stated that she had informed to the police station concerned and chaukidar came there. 13. PW1-Naresh Ravidas is the chaukidar he also stated that at the behest of the station officer in-charge of the police station concerned he reached at the place of occurrence and came to know that Ramkishun Yadav, Birju Yadav, Suresh Yadav, Permeshwar Yadav, Meena Devi and others had assaulted Chandri Devi and lock-up their house. He came to know that on the issue of cutting grass informant Chandri Devi, her husband Nageshwar Yadav were assaulted by the accused persons and the FIR was lodged by Chandri Devi who accompanied him to the police station concerned. 14. Herein the testimony of all these witnesses is in consonance of the statement under section 161 of Cr.PC. Chandri Devi PW2 and PW3 Nageshwar Yadav both are the injured eye witness of the occurrence. The testimony of an injured witness holds much significance and the reason behind it is that the injured witness will never conceal the real culprit. So far as the PW5-Birendra Yadav is concerned, he is also the eye witness of the occurrence. PW4-Asha Devi is also the eye witness of occurrence. All these eye witnesses though related to each other but their presence at the place of occurrence is not doubted since the place of occurrence is the house of the informant and the agriculture field wherein the grass was being cut is also adjoining to the house of informant. The testimony of PW1 is corroborated with testimony of all these injured eye witnesses of the occurrence. The testimony of PW1 is corroborated with testimony of all these injured eye witnesses of the occurrence. Taking into consideration the testimony of all these witnesses if the same is unrebuted would be sufficient for conviction which is the touch stone for summoning the accused persons under section 319 of Cr.PC. 15. The Hon'ble Apex Court in “Hardeep Singh v. State of Punjab and others” reported in (2014) 3 SCC 92 has held as under: “12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC. 13. 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 CrPC? 22. In our opinion, Section 319 CrPC is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial. It is this part which is under reference before this Court and therefore in our opinion, while answering the question referred to herein, we do not find any conflict so as to delve upon the situation that was dealt with by this Court in Dharam Pal (CB). 25. The stage of inquiry and trial upon cognizance being taken of an offence, has been considered by a large number of decisions of this Court and that it may be useful to extract the same hereunder for proper appreciation of the stage of invoking of the powers under Section 319 CrPC to understand the meaning that can be attributed to the words “inquiry” and “trial” as used under the section. 83. 83. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word “evidence” as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court. 84. The word “evidence” therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under Section 319 CrPC. The court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. The duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 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 CrPC. 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 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. Question (v)—In what situations can the power under this section be exercised : not named in FIR; named in the FIR but not charge-sheeted or has been discharged? 116. Thus, it is evident that power under Section 319 CrPC can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge-sheet and against whom cognizance had not been taken, or a person who has been discharged. However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 CrPC without taking recourse to provisions of Section 300(5) read with Section 398 CrPC.” 16. The Hon'ble Apex Court in “Ramesh Chandra Srivastava v. State of Uttar Pradesh and another” reported in (2021) 12 SCC 608 has held as under: “8. While this Court has approved of relying upon deposition which has not suffered cross-examination for the purpose of invoking Section 319 CrPC, it is relevant to note the standards which have been fixed by this Court for invoking the power under Section 319 CrPC. The statement of law in this regard is contained in paras 105 and 106 of Hardeep Singh : (SCC p. 138) “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. 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 unrebutted, 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.” (emphasis in original) 10. We say this for the following reason : The test as laid down by the Constitution Bench of this Court for invoking power under Section 319 CrPC inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 CrPC should be exercised. The power cannot be exercised in a casual and cavalier manner. The test to be applied, as laid down by this Court, is one which is more than prima facie case which is applied at the time of framing of charges.” 17. The Hon'ble Apex Court in “Ajay Kumar @ Bittu and another v. State of Uttarakhand and another” reported in (2021) 4 SCC 301 has held as under: “4. The test to be applied, as laid down by this Court, is one which is more than prima facie case which is applied at the time of framing of charges.” 17. The Hon'ble Apex Court in “Ajay Kumar @ Bittu and another v. State of Uttarakhand and another” reported in (2021) 4 SCC 301 has held as under: “4. The principles for exercise of power under Section 319 CrPC by the criminal court are well settled. The Constitution Bench of this Court in Hardeep Singh v. State of Punjab, has elaborately considered all contours of Section 319 CrPC. This Court has held that power under Section 319 CrPC is a discretionary and extraordinary power which has to be exercised sparingly. This 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 paras 105 and 106, the following has been laid down: (SCC p. 138) “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. 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.” 18. In view of the rival submissions made by learned counsel for the parties and also taking into consideration the testimony of all the five witnesses, the impugned order passed by the court below does not bear any infirmity and same needs no interference. Accordingly, this criminal revision deserves to be dismissed. 19. This criminal revision petition is, hereby, dismissed and the impugned order passed by the learned court below is affirmed. 20. It is made clear that any observation made herein shall not prejudice the merits of the trial. 21. Let the copy of the order be communicated to the concerned court alongwith the record.