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2023 DIGILAW 1392 (ALL)

Reena v. State of U. P.

2023-05-23

SYED AFTAB HUSAIN RIZVI

body2023
JUDGMENT : 1. Supplementary affidavit filed by learned counsel for the revisionists is taken on record. 2. Heard, Sri Satyendra Narayan Singh, learned counsel for the revisionists, learned AGA for the State and Sri Sanjay Mishra, learned counsel for the opposite party no.2/first informant. 3. This criminal revision has been filed against the order dated 13.10.2022 passed by A.C.J.M. Court No.1, Etawah in Criminal Case No.623 of 2012 (State Vs. Balram and others) arising out of Case Crime No.633 of 2009, under Sections 323, 325, 504, 506 I.P.C., P.S. Bharthana, District Etawah. By the impugned order, the learned Magistrate in exercise of powers under Section 319 Cr.P.C. on application of first informant/ prosecution has summoned the revisionists to face trial with co-accused for offence under Sections 323, 325, 504, 506 I.P.C. 4. The opposite party no.2 i.e. Anuj Kumar lodged an F.I.R. on 27.12.2009 at 9 a.m. alleging therein that on 27.12.2009 at about 7 a.m. Ram Sakhi Devi, the mother and Pramod Kumar, the brother of the complainant were collecting cow dungs then Balram Singh, Smt. Gopshree, Ruby and Reena started scuffle with the mother and brother of the complainant and they assaulted them causing head injury to his mother, her left hand was also fractured, bleeding started from her head. The left hand of Pramod Kumar was also fractured. Omkar Singh and Rukum Singh saved her. The accused persons fled from the spot abusing and extending life threat. After investigation, charge-sheet was submitted only against Balram Singh and Smt. Gopshree. The revisionists, Rubi and Reena were exonerated. During trial, after examination of Anuj Kumar as P.W.1 and Ram Sakhi as P.W.2, an application under Section 319 Cr.P.C. was moved by the prosecution which has been allowed by the impugned order. 5. Learned counsel for the revisionists contended that there are general allegations in the F.I.R. and no specific role has been assigned to the revisionists-accused. All the members of the family have been implicated whereas no specific role has been assigned to anyone. The Investigating Officer has recorded the statements of independent witnesses who have stated that both the girls (revisionists) were school going and had gone to attend the school. After considering the witnesses and other evidence, the Investigating Officer has come to the conclusion that the involvement of the revisionists was not found, therefore, they were exonerated from the charge-sheet. The Investigating Officer has recorded the statements of independent witnesses who have stated that both the girls (revisionists) were school going and had gone to attend the school. After considering the witnesses and other evidence, the Investigating Officer has come to the conclusion that the involvement of the revisionists was not found, therefore, they were exonerated from the charge-sheet. It is further contended that injured, Ram Sakhi/ P.W.2 has suffered one lacerated wound on forehead, one contusion on right arm and one lacerated wound on wrist joint. In her X-ray report, fracture of right arm has been detected. The other injured, Pramod Kumar has suffered one lacerated wound, one contusion and one abrasion. His X-ray report is NAD. Therefore, the allegations of the F.I.R. are totally false and concocted. It is further contended that complainant, Anuj Kumar/P.W.1 is not an eye-witness of the incident, he has not stated anything about the involvement of the revisionists-accused in the F.I.R. The learned Magistrate only on the statement of Ram Sakhi/ P.W.2 has summoned the revisionists in a mechanical manner. At the time of incident, the revisionists were minor and as per High School Certificate-cum-Marksheet, the date of birth of revisionist no.1 is 10.08.1996 and as per High School Marksheet, the date of birth of revisionist no.2 is 11.10.1993. The application under Section 319 Cr.P.C. has been moved with malafide intention only to disturb the matrimonial lives of revisionists who are now married. It is also contended that the impugned order is against the evidence and materials available on record. The learned trial Court has committed manifest illegalities which is apparent on the face of the record. It is also contended that the Apex Court in so many cases has held that power to summon under Section 319 Cr.P.C. is an extraordinary power which should be exercised in exceptional cases where the situation so warrants. The degree of satisfaction is more than that of prima facie case. The learned trial Court has exceeded its jurisdiction in passing the impugned order. No finding has been recorded by the learned Magistrate that on the basis of evidence available on record there is the possibility of conviction of revisionists. Therefore, the order is erroneous and not sustainable. The learned Magistrate placed reliance on the following case laws:-(i) Hardeep Singh & others Vs. No finding has been recorded by the learned Magistrate that on the basis of evidence available on record there is the possibility of conviction of revisionists. Therefore, the order is erroneous and not sustainable. The learned Magistrate placed reliance on the following case laws:-(i) Hardeep Singh & others Vs. State of Punjab & others 2014 0 Supreme (SC) 27 and (ii) Periyasami & others Vs. S. Nallasamy 2019 0 Supreme (SC) 284. 6. Learned counsel for the opposite parties submitted that the revisionists are named in the F.I.R. with clear allegation that they were also present at the place of incident and took part in the commission of the offence. They assaulted Ram Sakhi/ P.W.2 and Pramod Kumar causing them injuries. The complainant-Anuj Kumar and both the injured in their statements during investigation have corroborated the allegations of the F.I.R. but the Investigating Officer in an unfair manner just to benefit the revisionists-accused has ignored it and exonerated them. Both Ram Sakhi/ P.W.2 and Pramod Kumar received injuries in this incident. Injury of Ram Sakhi/ P.W.2 is grievous in nature. The complainant, Anuj Kumar has been examined as P.W.1 while injured Ram Sakhi was examined as P.W.2 and they have again corroborated the allegations of the F.I.R. in their deposition before the Court. So there is sufficient evidence on record against the revisionists and the learned trial Court has rightly passed the impugned order. There is no illegality in the impugned order. 7. The revisionists are named as accused in the F.I.R. There are allegations that the revisionists-accused with other named accused of F.I.R. assaulted Pramod Kumar and Ram Sakhi/ P.W.2, the brother and mother of the complainant. Pramod Kumar and Ram Sakhi were injured and they were medically examined and their medical reports are part of the record. Ram Sakhi/ P.W.2 has suffered grievous injury in right forearm in the form of fracture. The complainant may not be an eye-witness of the incident but the two injured Pramod Kumar and Ram Sakhi, both in their statements recorded under Section 161 Cr.P.C. have supported the allegations of the F.I.R. and have stated about the involvement of the revisionists-accused in the incident with co-accused. The Investigating Officer on the basis of statements of some villagers has exculpated the revisionists-accused. The Investigating Officer on the basis of statements of some villagers has exculpated the revisionists-accused. One of the injured witness, Ram Sakhi has been examined before the trial Court as P.W.2, she has reiterated her previous statements and has stated about the involvement of revisionists-accused in the incident. It is the prosecution case that all the accused persons holding lathi, danda assaulted Ram Sakhi and Pramod Kumar causing them injuries. 8. The test laid down by the Apex Court for invoking powers under section 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person the power should be exercised. The test to be applied is one which is more than prima facie Case, which is applied at the time of framing of charge. The Apex Court in Rajendra Singh versus State of UP A.I.R. 2007 SC 2786 has held that the statement of witnesses to the Investigating Officer under section 161Cr.P.C. cannot be relied upon in recording finding that accused sought to be tried could not have been present at the scene of occurrence. It is further held that it must appear to the court on the evidence that someone not arrayed as accused appears to have committed an offence. The court need not be satisfied that he has committed an offence. It need only appear to it that he has committed an offence. 9. So applying the test laid down by the Apex Court on the present set of facts, it is clear that there is strong evidence than mere probability of the revisionist accused in the form of testimony of injured witness. In comparison to it, the evidence on the basis of which the Investigating Officer has exonerated the revisionist accused is of a very weak nature. There is sufficient and cogent evidence on record 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 and it passes the test as laid down by the Apex Court. 10. The learned trial court with a detailed and reasoned order has allowed the application. 10. The learned trial court with a detailed and reasoned order has allowed the application. The learned trial court has narrated the entire facts, evidence and other material available on record and after analyzing it, has come to the finding that there is sufficient ground to summon the revisionist accused U/s 319 Cr.P.C. There is no illegality or infirmity in the impugned summoning order. 11. Accordingly, the revision is hereby dismissed.