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2023 DIGILAW 2908 (ALL)

Mohd. Akib v. State of U. P.

2023-12-22

NAND PRABHA SHUKLA

body2023
JUDGMENT : Nand Prabha Shukla, J. Heard Sri S.S. Rajput, learned counsel for the revisionist, learned AGA for the State and Sri Ram Behari Saxena, learned counsel for opposite party No. 2. 2. The present criminal revision has been filed by the revisionist against the order dated 11.11.2022 passed by the learned Additional Session Judge, Court No. 7, Aligarh in Sessions Trial No. 2689 of 2021 (State v. Mumshad alias Banti) arising out of Case Crime No. 345 of 2021, under Section 326A IPC, Police Station Gandhi Park, District Aligarh whereby application moved by the revisionist/informant under Section 319 Cr.P.C. has been rejected. 3. The revisionist/informant gave a Tehrir dated 9.6.2021 stating that on 8.6.2021 at 9.00 p.m. at the Old Roadways Bus Stand when he, his brother Tazeem and cousin Javed were waiting for the bus, in the meantime, Mumshad alias Banty and Amil Husain reached identifying his brother Tazim. Amil threw an acid pouch on the face of Tazim. They tried to throw the pouch at him too, but fled away in fear. The revisionist/informant at once reached the nearby police Chowki and with their help Tazim was admitted for treatment at Malkhan Singh Hospital. On the very night, his brother was referred to J.N. Medical College, Aligarh. The condition of his brother was serious who completely lost an eye, even the face was distorted. 4. An FIR was registered on 10.6.2021 at 11.13 a.m. bearing Case Crime No. 0345 of 2021 under Section 326A IPC, Police Station Gandhi Park, District Aligarh naming Mumshad alias Banty and Amil Husain. 5. After investigation only Mumshad alias Banty was charge-sheeted, the name of Amil Husain was dropped. The charge was framed and the trial proceeded. 6. The first informant Mohd. Akib, an eye-witness was examined as P.W-1. In his examination-in-chief recorded on 21.3.2022, he supported the prosecution version with specific allegations against Amil Husain. 7. The injured witness Tazim Ahmed was examined as P.W.-2. His examination-in-chief was recorded on 2.6.2022. He also supported the prosecution version with specific allegations against Amil Husain. 8. Subsequently, an application was moved by the prosecution under Section 319 Cr.P.C. stating that accused Mumshad alias Banty and Amil Husain were named in the FIR but the Investigating Officer dropped the name of Amil Husain by filing the final report, therefore, Amil too be summoned and tried as an accused. 9. 8. Subsequently, an application was moved by the prosecution under Section 319 Cr.P.C. stating that accused Mumshad alias Banty and Amil Husain were named in the FIR but the Investigating Officer dropped the name of Amil Husain by filing the final report, therefore, Amil too be summoned and tried as an accused. 9. Raising objection, counsel for the accused Amil in his defence stated that he was falsely implicated for the reason that he lodged an FIR bearing Case Crime No. 492 of 2019 under Sections 354, 376, 377, 504 and 506 IPC against Tazeem Ahmad for committing rape on his sister, Shahin Husain. In order to mount pressure for compromise, he was falsely implicated. He further pleaded that on the date of incident he was on his job at H.F.A. Formulation Private Limited Dehradun. 10. Learned counsel for the revisionist/informant argued that the learned Trial Court rejected his application under Section 319 Cr.P.C. on the following grounds: (i) Firstly, in the examination-in-chief, the prosecution witnesses admitted that in the year 2019 his brother Tazeem(injured) was roped in a rape case which was still pending. (ii) The said witnesses admitted that the FIR was not lodged on the date of occurrence. (iii) PW-1 admitted that the FIR was lodged after consulting his brother Tazeem as to who should be roped as an accused. (iv) P.W-2(injured) in his cross-examination admitted that Km. Shahin who was a nurse in a Medical College lodged an FIR in the year 2019 regarding commission of rape and further admitted that Amil Husain was her brother and the rape case was still pending. (v) P.W-2 further admitted that he knew Fatima but denied that she left him near the Masjid. Fatima was carrying a Mobile No. 7599967521 and gave a written application to the Investigating Officer stating that on 8.6.2021 she took dinner at the Medical College Road with Tazim, as he had to go to Delhi. She left Tazim at the Masjid who was all alone. Thereafter Fatima returned back to her home on her Activa UP 12 AU 7559. After a while, she received a call from Tajeem that acid has been thrown on him and he was admitted at the Malkhan Hospital. She went to Malkhan Hospital where Tazim informed that he could not see very clearly but he knew who had thrown the acid. After a while, she received a call from Tajeem that acid has been thrown on him and he was admitted at the Malkhan Hospital. She went to Malkhan Hospital where Tazim informed that he could not see very clearly but he knew who had thrown the acid. She remained at the Medical College till 1.00 a.m. She did not see the brother or his relative at the Hospital and Tajeem was all alone. (vi) The Trial Court found that during investigation the statement of the mother of Amil Husain, namely, Zubeda Begum was recorded who stated that her son was falsely implicated in order to create pressure to compromise the rape case. And that her son Amil Husain was on job on the date of incident at H.F.A. Formulation Private Limited, Dehradun. (vii) A certificate issued by an Authorised Officer of H.F.A. Formulation Private Limited, Dehradun was procured by the Investigating Officer stating that Amil Husain was available there on 8.6.2021 at 9.07 a.m. to 7.11 p.m. Certain other documents alongwith the attendance report was also placed. Few affidavits of landlords and other persons were also taken into account stating that Amil Husain was residing in that House from 8.6.2022 to 10.6.2022. (viii) The call details reports procured by the Investigating Officer from Idea Mobile Services Company showed the location of Amil Husain from 8.6.2021 to 9.6.2021 at Dehradun. As the accused Amil Husain was available at Dehradun, the presence of Amil Husain was doubtful. As PW-2 injured Tazeem was an accused in a rape case, therefore, in order to create pressure for compromise, the accused Amil Husain was also robed. 11. Learned counsel for the revisionist submitted that the Trial Court had rejected the application under Section 319 Cr.P.C. in a cursory manner, ignoring the evidence on record and without application of judicial mind. 12. Reference was made to deposition of P.W.-1 and P.W. 2 which is as follows: 13. From the perusal of record, we find that during trial, the P.W.-1 (first informant/eye-witness) supported the prosecution version. In examination-in-chief, he specifically roped the respondent No. 2 Amil Husain. Even P.W.-2 (injured witness) in his examination-in-chief supported the prosecution case and had also specifically roped the respondent No. 2 Amil Husain. 14. From the perusal of record, we find that during trial, the P.W.-1 (first informant/eye-witness) supported the prosecution version. In examination-in-chief, he specifically roped the respondent No. 2 Amil Husain. Even P.W.-2 (injured witness) in his examination-in-chief supported the prosecution case and had also specifically roped the respondent No. 2 Amil Husain. 14. From the order impugned, it is apparent that the learned trial Court while dealing with the application under Section319 Cr.P.C. had taken into account the material collected during the investigation. Reference has been made to the statement of Fatima and the mother of respondent No. 2, namely, Amil Husain Zubeda Begum which cannot be seen at this stage. Even the defence version of the accused cannot be seen at this stage. The plea of alibi taken by the accused that he was present at Dehradun and the call detailed reports showing the location of Amil at Dehradun are to be seen and considered during trial. 15. Per contra, learned counsel for the accused/Amil argued that the application moved by the revisionist has been rightly rejected and there is no illegality in the impugned order. 16. Upon hearing the counsel for the parties and upon perusal of record, we find that the accused Amil Husain was named in the FIR but during the course of the investigation his name was dropped and only the co-accused Mumshad alias Banty was charge-sheeted under Section 326A IPC. 17. In the case, at hand, the Court below has not taken note of the fact that the respondent No. 2 was named in the FIR and was assigned the main role of throwing acid on PW-2 (injured). The testimony of PW-1 (eye-witness) and PW-2 (injured witness) clearly indicate the complicity of the respondent No. 2 as is apparent from the evidence. 18. Recently, the Hon'ble Supreme Court in Sandeep Kumar v. The State of Haryana and another, 2023 SCC Online SC 888, has observed that the entire purpose of criminal trial is to go to the truth of the matter. Once there is satisfaction of the Court that there is evidence before it that an accused has committed an offence, the Court can proceed against such a person. At the stage of summoning an accused there has to be a prima facie satisfaction of the Court. Once there is satisfaction of the Court that there is evidence before it that an accused has committed an offence, the Court can proceed against such a person. At the stage of summoning an accused there has to be a prima facie satisfaction of the Court. The evidence which was there before the Court was of an eye-witness who clearly stated before the Court that the crime has been committed by the revisionist. Therefore, the Court need not cross-examine this witness. It can stop the trial at that stage itself if such application had been moved under Section 319 Cr.P.C. The detail examination of the witness and other witnesses is a subject-matter of the trial which has to begin afresh. The scope and ambit of Section 319 Cr.P.C. has been discussed and dealt with an detail in the Constitution Bench judgement of Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92 , where it said: ''12. Section 319 Cr.P.C. 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 Cr.P.C. 13. It is the duty of the Court to do justice by punishing the real culprit. Where the inestigating 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.'' 19. In Hardeep Singh (supra), this Court further said that the Court only has to see at the state of Section 319, whether a prima facie case is made out although the degree of satisfaction has to be much higher. ''95. At the time of taking cognizance, the Court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C. though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. ''95. At the time of taking cognizance, the Court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C. though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objection satisfaction of the Court a person may be ''arrest'' or ''summoned'', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. In para 106 it stated as under: 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'' it 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.'' 20. Thus, the main object for exercise of powers under Section 319 of the Code is that the real perpetrator of the offence should not go away unpunished specially in a situation where the investigating agency for any reason whatsoever had not arraigned any culprit as an accused. The Court would not be powerless in calling the accused to face trial, rather it is the duty of the Court to do justice by punishing the real culprit. 21. The Court would not be powerless in calling the accused to face trial, rather it is the duty of the Court to do justice by punishing the real culprit. 21. In view of the aforesaid facts and circumstances as well as in the light of Hon'ble Apex Court judgements, it is hereby directed to the Trial Court concerned to consider the matter afresh and pass appropriate orders in the light of observations as aforesaid. 22. Accordingly, the revision is disposed of.