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2023 DIGILAW 596 (ALL)

Sandeep Kumar v. State of U. P.

2023-02-28

SYED AFTAB HUSAIN RIZVI

body2023
JUDGMENT Syed Aftab Husain Rizvi, J. - Heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri Dhiraj Srivastava, learned counsel for the revisionist, learned A.G.A. for the State of U.P.-opposite party no.1 and Sri Amar Chandra, learned counsel for the opposite party no.2. 2. This criminal revision is directed against order dated 27.09.2022 passed by Additional Session Judge, Court No.1, Shahjahanpur in Session Trial No.177 of 2016 (State v. Ashok Kumar) arising out of Case Crime No.377 of 2016 under Section 304, 323 and 504 I.P.C., Police Station Roja, District Shahjahanpur. 3. By the impugned order, learned trial court in exercise of powers under Section 319 Cr.P.C. on the application of the prosecution has summoned the revisionist-accused, Sandeep and another accused Vibha Devi to face trial with co-accused. 4. Km. Anushka Krishna, opposite party no.2 lodged an F.I.R. on 31.03.2016 regarding the incident which has taken place on 29.03.2016 at about 6.30 p.m. alleging therein that the complainant with her sister Surabhi was at her house when her real uncle Ashok Kumar, his wife (Vibha Devi) and Sandeep came there and started abusing. In the meantime her father Ram Krishna came there and requested not to hurl abuses, which infuriated Ashok Kumar who brought a knife from his house and Vibha and Sandeep caught hold the complainant's father and Ashok Kumar stabbed in the stomach of her father causing him serious injuries and profused bleeding. Surabhi also got injury on her right finger while rescuing her father. Her father became unconscious and all the accused ran away. Her father was brought to District Hospital for treatment. The doctors referred him to Lucknow and he was admitted in KGMC, Lucknow and ultimately died on 30.03.2016. The F.I.R. was lodged under Sections 304, 504 and 323 I.P.C. against Ashok Kumar, Vibha Devi and Sandeep. Charge-sheet was submitted against Ashok Kumar. During trial two witnesses Km. Anushka Krishna Complainant, PW 1 and Surabhi PW 2 were examined and theirupon an application under Section 319 Cr.P.C. was moved by the prosecution. 5. Learned counsel for the revisionists contended that after investigation charge-sheet was submitted only against Ashok Kumar on 25.08.2016. The Investigating Officer failed to collect any evidence against revisionist- accused, although the investigation continued. Anushka Krishna Complainant, PW 1 and Surabhi PW 2 were examined and theirupon an application under Section 319 Cr.P.C. was moved by the prosecution. 5. Learned counsel for the revisionists contended that after investigation charge-sheet was submitted only against Ashok Kumar on 25.08.2016. The Investigating Officer failed to collect any evidence against revisionist- accused, although the investigation continued. The second Investigating Officer made further investigation and verified the statement of complainant and other witnesses recorded by the earlier Investigating Officer and came to the conclusion that revisionist-accused is not involved, even remotely to the alleged incident and he submitted report to this respect on 09.03.2017 specifically mentioning that revisionist was not at all present on the place of occurrence as is apparent from his call detail record. During trial Anushka Krishna PW 1 and Surabhi PW 2 were examined and they both just repeated the version of the F.I.R without bringing on record any other fact, material or circumstances. They are real sisters and daughters of the deceased. No other prosecution witness or independent witness has been examined. Before the trial court there was no additional circumstance or any sufficient material or any documentary evidence or even statement of any independent witness. There existed on record only the version of the F.I.R. The complainant moved an application under Section 319 Cr.P.C. on 09.11.2016 when investigation against revisionist was still continuing. An objection was filed against it. The trial court called for report from Station House Officer, Police Station Roja, District Shahjahanpur about pending investigation. The Investigating Officer submitted report on 18.02.2017 stating that against revisionist investigation is continuing which included the final report dated 09.03.2017 and CDR dated 29.03.2016 apart from other material. However, trial court allowed the application under Section 319 Cr.P.C. vide order dated 23.06.2018 and summoned the revisionist, Sandeep Kumar. Being aggrieved with this order, revisionist preferred Criminal Revision No.2189 of 2018 which was allowed by this Court vide its order dated 18.07.2018 setting aside the order dated 23.6.2018 and the matter was remitted to the trial court to decide afresh in the light of the observations. Certified copy of this order was submitted before court below on 24.07.2018, but court below appreciated the material which were already available and ignoring the order of this Court has passed the impugned order dated 27.09.2022 in arbitrary and cursory manner. Certified copy of this order was submitted before court below on 24.07.2018, but court below appreciated the material which were already available and ignoring the order of this Court has passed the impugned order dated 27.09.2022 in arbitrary and cursory manner. The learned court below has miserably failed to exercise its jurisdiction while ignoring order of this Court in which this Court has quoted the decisions of Hon'ble Apex Court in Hardeep Singh's case which ought to have been considered while passing the impugned order but such exercise has not been undertaken by the court below. The impugned order dated 27.09.2022 is verbatim to the earlier order dated 23.06.2018 which reflects that court below has not applied its judicial mind and has passed the impugned order in a mechanical manner. It is further contended that the law stands settled by Apex Court and High Court that power under Section 319 Cr.P.C. should be exercised sparingly and in rarest of rare cases and that, too, after application of judicial mind and after considering the evidence and also only after objective satisfaction about strong probability which may lead to conviction of a person sought to be added for trial. Learned counsel submitted that the word, "appears", and "evidence" used in the provisions under Section 319 Cr.P.C. have been interpreted by Apex Court and this Court to the effect that the same should be just lesser than the higher degree of proof for determining the prima facie case for proceeding against the person who has been summoned. There does not exist such degree of either strong suspicion or even probability and no element of prima facie case or only ingredients is meted out. It is further contended that once the trial court has summoned the report and the Investigating Officer has submitted the entire material which demonstrated that revisionist was not at all present at the place of incident and he is not involved in the case, the court below ought to have carefully considered and applied judicial mind about the effect of those material evidences, but it failed to do so. There exists no material on record which may be sufficient for satisfaction of the court below so as to summon the revisionist. There exists no material on record which may be sufficient for satisfaction of the court below so as to summon the revisionist. The court below has passed impugned order in cursory and casual manner without considering the broad probabilities, detail fact, entire evidence, document produced and the remotest chances of conviction of revisionist, thus the impugned order is not sustainable. Learned counsel placed reliance on the following case laws: 1. Brijendra Singh and others v. State of Rajasthan (2017) 7 SCC 706 ; 2. Naveen v. The State of Haryana in Criminal Appeal No (s). of 2022 (arising out of Special Leave Petition (Crl.) No. 3746 of 2022) 6. Learned A.G.A. appearing for the State and learned counsel for the opposite party no.2 contended that the revisionist is named in the F.I.R. and there are specific allegations against him. He has been assigned role of catching hold the victim. The complainant and her sister Surabhi, the eye-witnesses, in their statement under Section 161 Cr.P.C. have fully corroborated the allegations of the F.I.R., but the Investigating Officer in an improper manner recorded statement of so-called eye-witnesses and exonerated the revisionist. No cogent evidence has been collected by the Investigating Officer which may indicate that he was not present at the spot. During trial the complainant and her sister Surabhi have been examined and they have supported the allegations of the F.I.R. and have clearly stated about complicity of the revisionist-accused in the incident assigning him role of catching hold. Surabhi has also got injuries in the incident. So, the testimony of PW 1 and PW 2 are of greater value in comparison to the statement of so-called independent witnesses on the basis of which the Investigating Officer has exonerated the revisionist-accused. There is sufficient and cogent evidence available on record as both the complainant and her sister the eye-witnesses have stated about active participation of revisionist-accused in the incident. The order is just and proper. There is no illegality in the impugned summoning order. 7. The Apex Court in the case of Hardeep Singh v. State of Punjab AIR 2014 SC page 1400 has prescribed the standard of evidence required for exercising powers under section 319 Cr.P.C. 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. 7. The Apex Court in the case of Hardeep Singh v. State of Punjab AIR 2014 SC page 1400 has prescribed the standard of evidence required for exercising powers under section 319 Cr.P.C. 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. 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." 8. In the case of Brijendra Singh and others v. State of Rajasthan (2017) 7 SCC page 706 the Apex Court has reiterated the principles laid down in Hardeep Singh's case. The relevant para no. 13 is quoted below: "13. In the case of Brijendra Singh and others v. State of Rajasthan (2017) 7 SCC page 706 the Apex Court has reiterated the principles laid down in Hardeep Singh's case. The relevant para no. 13 is quoted below: "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. 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 charge-sheet 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." 9. So the test as laid down by 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 under Section 319 Cr.P.C. 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. 10. The test to be applied is one which is more than prima facie case, which is applied at the time of framing of charge. 10. The F.I.R. of this case has been lodged against Ashok Kumar, Smt. Vibha Devi and Sandeep (revisionist) by Anushka Krishna, daughter of the deceased. There are specific allegations in the F.I.R. that the accused Vibha Devi and Sandeep caught hold Ram Krishna and co-accused Ashok inflicted knife injuries in the abdomen causing serious bleeding. It is further alleged that the complainant and her sister Surabhi tried to rescue their father and Surabhi also suffered knife injury in finger of her right hand. During investigation, the complainant and her sister Surabhi, both have corroborated the allegations of the F.I.R. The Investigating Officer has exonerated the revisionist-accused, Sandeep on the basis of affidavits and statements of some witnesses recorded under Section 161 Cr.P.C. in which they have stated that Sandeep was not present on the spot at the time of occurrence and further that from the CDR his presence at the place of occurrence is not established. The complainant Anushka Krishna and Surabhi her sister, who is also an injured, have been examined during trial as PW 1 and PW 2. They have reiterated their version of the incident as stated in the F.I.R. as well as in their previous statements recorded under Section 161 Cr.P.C. It is clear from the allegations of the F.I.R. that the incident has occurred at the house of the complainant and except complainant and her sister no other person is named as eye-witness of the incident. Even in their statements recorded under Section 161 Cr.P.C. no other person is named as eye-witness of the incident. In parcha of Case Diary dated 09.03.2017, the Investigating Officer has submitted that independent witnesses have not stated about the complicity of accused Sandeep in the incident. The previous Investigating Officer has collected the CDR of the mobile of Sandeep and has recorded that Sandeep was not present at the place of occurrence. So, the evidence on the basis of which the Investigating Officer has exonerated the revisionist is of a very weak type. The CDR of mobile may be relevant for corroboration to prove the presence of accused at the place of occurrence, but not vice versa. So, the evidence on the basis of which the Investigating Officer has exonerated the revisionist is of a very weak type. The CDR of mobile may be relevant for corroboration to prove the presence of accused at the place of occurrence, but not vice versa. Except oral statement of formal witnesses, no other cogent evidence has been collected by the Investigating Officer regarding alibi, while there is cogent evidence on record in the form of testimony of complainant (eye- witness) and her sister Surabhi injured as well as eye-witness of the incident. It is settled law that the testimony of an injured witness has greater evidenciary value and it should not be discarded, but for sound and cogent reasons. In Rajesh and ors v. State of Haryana, (2019) 6 SCC 368 wherein informant named 10 persons for attempt to murder of his son and another with specific allegations against all the accused. The Investigating Officer submitted his report under Section 173 (2) Cr.P.C. against four accused only, no challan filed against six accused (appellants). The trial proceeded against four accused only. During trial, P.W.-1 (complainant) and P.W.-2 (injured witness) specifically stated about the overacts by the accused appellants and role played by them. An application for proceeding against them under section 319 Cr.P.C. was allowed by the trial court. The High Court dismissed the revision. The Apex Court held that, "the appellants herein are also named in the FIR, in the deposition before court, P.W. 1 & 2 have specifically stated against appellants and specific roles attributed to them, on the basis of the same, the persons against whom, no charge-sheet is filed can be summoned to face the trial, no error has been committed by the courts below to summon the appellants therein to face the trial in exercise of power under Section 319 Cr.P.C. 11. So, it is clear that there is cogent evidence in the form of testimony of eye- witnesses and injured witness. So, it is clear that there is cogent evidence in the form of testimony of eye- witnesses and injured witness. Applying the test laid down by Apex Court on the present set of facts, it is clear that there is strong evidence than mere probability of the complicity of the revisionist-accused and it passes the test as laid down by the Apex Court which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to the extent that the evidence, if got unrebutted, would lead to conviction. 12. It is correct that earlier order passed by the trial court dated 23.06.2018 was set aside by this Court in Criminal Revision No. 2189 of 2018 vide order dated 18.07.2018 and the trial court was directed to revisit the matter and pass a fresh order. This Court in order dated 18.07.2018 has specifically observed that it has not given any opinion as to whether the strong satisfaction arose in the facts, circumstances and the evidence in the present case. In the impugned order, the trial court has narrated the allegations of the application and objections in paras 1st and 2nd of the impugned order. Thereafter, in the last paragraph before operative portion, learned trial court has made an analysis of the facts and evidence on record and on its basis has allowed the application. This Court has to judge the correctness, legality and propriety of the impugned order. The trial court may not have used proper language, but it has analyzed the entire facts, evidence and other material available on record and conclusion drawn by it is just and proper. The intention is to be gathered from reading the order as a whole. There is no infirmity or illegality or error in the impugned order. There is no sufficient reason to interfere in the impugned order. This criminal revision is liable to be dismissed. 13. This criminal revision is, accordingly, dismissed.