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2023 DIGILAW 246 (ALL)

Bhola Yadav v. State of U. P.

2023-01-24

SYED AFTAB HUSAIN RIZVI

body2023
JUDGMENT Syed Aftab Husain Rizvi, J. - Heard learned counsel for the revisionist, learned counsel for opposite party no.2 as well as the learned A.G.A. and perused the material placed on record. 2. The revisionist, by way of filing the present revision, has sought to quash the impugned judgement and order dated 15.05.2019 passed by Additional Session Judge/Special Judge (POCSO Act), Court No.8, Allahabad in Session Trial No.793 of 2015 (State v. Lallu Ram and others) arising out of Case Crime No. 273 of 2015 under Section 302 I.P.C., Police Station Handiya, District Prayagraj/Allahabad. By the impugned order, learned trial court, on an application filed by the prosecution under Section 319 Cr.P.C., has summoned the revisionist to face trial with co-accused, Lallu Ram. 3. An F.I.R. was lodged on 22.06.2016 alleging therein that today father of complainant, Jagmal Prasad was returning from Allahabad,on the way, at 5.30 p.m. when on his Vikki motorcycle, he reached near Village Chaknandu Nahar Puliya, Lallu Ram Yadav and Bhola Yadav due to old enmity opened fire on the head of Jagmal Prasad by a country-made pistol. He died on spot. At the same time, Samar Bahadur, brother and Ram Prasad, uncle of the complainant, who were returning home, hearing the sound of fire, reached at the spot, then accused persons, waving the country-made pistols ran away from the spot. After investigation charge-sheet was submitted only against one accused, Lallu Ram Yadav. The other named accused, Bhola Yadav was exonerated. During course of trial three witnesses, Amar Bahadur PW 1, Samar Bahadur PW 2 and Ram Prasad PW 3 were examined. Thereafter, an application under Section 319 Cr.P.C. was filed by the prosecution on the grounds that the complainant in the F.I.R., in his statement under Section 161 Cr.P.C. and in testimony before the court has corroborated the allegations of the F.I.R. that Lallu Ram Yadav on the exhortation of Bola Yadav with intention to kill has opened fire on Jagmal Prasad causing his death. There are other eye-witnesses,Samar Bahadur PW 2 and Ram Prasad PW 3, who also in their statement under Section 161 Cr.P.C. and before the trial court, have fully corroborated aforesaid statement. The Investigating Officer has submitted charge-sheet only against Lallu Ram while it is clear that Bhola Yadav is also involved in the incident with co-accused Lallu Ram Yadav. Prayer was made to summon the accused, Bhola Yadav. The Investigating Officer has submitted charge-sheet only against Lallu Ram while it is clear that Bhola Yadav is also involved in the incident with co-accused Lallu Ram Yadav. Prayer was made to summon the accused, Bhola Yadav. Learned trial court has allowed the application and summoned the revisionist-accused. 4. It is contended by the learned counsel for the revisionist that there is no evidence against the revisionist fulfilling conditions required for summoning under Section 319 Cr.P.C., hence the impugned order is not sustainable in the eye of law. It is further contended that from the statements of Amar Bahadur PW 1, Samar Bahadur PW 2 and Ram Prasad PW 3 who are alleged to be eye-witnesses of the incident, it is clear that they were not present at the time of the incident, but they came later on. It is next contended that Investigating Officer during the course of investigation has collected the evidence of the fact that the revisionist-accused was employed at Mumbai and at the relevant time he was at Mumbai in relation to his employment. The Investigating Officer has collected reliable and cogent evidence in this respect and on these grounds exonerated the revisionist-accused. Learned trial court while passing the impugned order has lost sight of the evidence collected by the Investigating Officer that revisionist-accused was not present in the village at the time of occurrence. Learned counsel has submitted that the Apex Court in Hardeep Singh v. State of Punjab, 2014 (3) SCC 92 has held as follows: "though only a prima face 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." 5. He has further contended that trial of Lallu Ram Yadav was completed which culminated into his acquittal. The eyewitnesses account produced by the prosecution was disbelieved by the trial court, so there is no evidence against the revisionist-accused on which he could be tried. The fate of the trial is well-known and it may be a futile exercise. The impugned order suffers from material illegality and is liable to be set aside. Learned counsel for the opposite party no.2 and learned A.G.A. appearing for State contended that revisionist-accused is named in the F.I.R. with specific allegations of his complicity in the heinous crime of murder in which father of the complainant lost his life. The complainant, Amar Bahadur himself is the eye-witness. There are two other eye-witnesses, Samar Bahadur and Ram Prasad. All of them in their statements under Section 161 Cr.P.C. has fully corroborated the allegations of the F.I.R. establishing the complicity of the revisionist-accused in the incident. They have reiterated it before the trial court in their testimony. It is further contended that the plea of alibi is to be proved to the satisfaction of the court. Learned counsel has placed reliance on the case law of Soma Bhai v. State of Gujarat A.I.R. 1975 SC 1453. Relevant paragraph-17 is quoted below: "17. It was lastly contended by the learned Counsel for the appellant that as the accused was found at Surat at 9 P.M. when he lodged the report against Ratilal Leva and others regarding the concealment of smuggled silver, hence the accused could not have been present at the time of occurrence. In other words, this was a sort of plea of alibi which was sought to be taken by the appellant. There is, however, no evidence on the record to prove that the accused was seen at Surat by the police officer at 9 P.M. The evidence of Circle Inspector Rijhsinghani clearly shows that he saw the accused at about 10 P.M. The occurrence took place at Dandi a little before 9 P.M. There was ample time for the accused to have gone to Surat by a jeep. It may be mentioned that it is admitted case of the appellant that he went to Surat in a jeep and in fact he explained that he got the injuries on his head because his jeep suddenly came to a stop in view of the crowded streets of Surat and his head dashed against the window-screen of the jeep. It is well settled that a plea of alibi has got to be proved to the satisfaction of the Court." 6. Learned counsels further contended that trial court has analysed all the facts, evidence and material on record and on its basis has recorded the finding that there is sufficient and cogent evidence against the revisionist-accused and has passed summoning order. The impugned summoning order is reasoned one and there is no illegality or irregularity in it. 7. It is not disputed that revisionist-accused was named in the F.I.R., but during investigation the Investigating Officer found that he was not present in the village at the alleged time of the incident. The Investigating Officer has collected evidence in respect of it which is part of the case diary. He has also visited Mumbai and has recorded statement of his employer and collected other documents also. The statement of Samar Bahadur PW 2 and Ram Prasad PW 3 before the court are reiteration of their statement as recorded under Section 161 Cr.P.C. 8. The standard of evidence required for exercising powers under Section 319 Cr.P.C. has been prescribed in the case of Hardeep Singh v. State of Punjab (supra).The relevant paras 98 and 99 are as follows: "98. 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. 99. 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. 99. Thus, we hold that though only a prima face 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." 9. In Brijendra Singh and another v. State of Rajasthan (2017) 7 SCC 706 , the Apex Court has made following observations: "13.In order to answer the question, some of the principles enunciated in Hardeep Singh's case may be recapitulated Power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during the trial, i.e.,before the conclusion of trial, to summon any person as an accused and face the trial in the ongoing case, once the trial court finds that there is some 'evidence' against such a person on the basis of which evidence it can be gathered that he appears to be guilty of offence. The 'evidence' herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt,such evidence that has surfaced in examination-in-chief, without cross-examination of witnesses,can also be taken into consideration. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt,such evidence that has surfaced in examination-in-chief, without cross-examination of witnesses,can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom chargesheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. 14.When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct. 15.This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. 15.This record was before the trial court. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so-called verbal/ocular version. Thus, the 'evidence' recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether 'much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny." 10. The facts of present case are almost identical to the facts of Brijendra Singh and another v. State of Rajasthan (supra). In this case also the Investigating Officer has collected a plethora of evidence regarding the fact that revisionist was not present at the time of occurrence. His presence was at Mumbai which is far away from the place of occurrence. Further in this case one more important factor is that co-accused, Lallu Ram Yadav has already been acquitted disbelieving the prosecution evidence. The evidence against the revisionist-accused is the same. 11. The impugned order reveals that learned trial court has assessed only the evidence recorded before it. It has not taken into consideration every facts and material available on record. The impugned order has been passed in a cavalier manner without appreciating entire facts and circumstances of the case. The evidence against the revisionist-accused is the same. 11. The impugned order reveals that learned trial court has assessed only the evidence recorded before it. It has not taken into consideration every facts and material available on record. The impugned order has been passed in a cavalier manner without appreciating entire facts and circumstances of the case. It does not satisfy the test laid down for exercising powers under Section 319 Cr.P.C. So, the impugned order is not sustainable in the eye of law. 12. Accordingly, this criminal revision is allowed. The impugned order dated 15.05.2019 passed by Additional Session Judge/Special Judge (POCSO Act), Court No.8, Allahabad in Session Trial No.793 of 2015 (State v. Lallu Ram and others) arising out of Case Crime No. 273 of 2015 under Section 302 I.P.C., Police Station Handiya, District Prayagraj/Allahabad is hereby set aside.