Research › Search › Judgment

Allahabad High Court · body

2025 DIGILAW 1088 (ALL)

Chandra Shekhar Tiwari v. State of U. P.

2025-09-02

NALIN KUMAR SRIVASTAVA

body2025
JUDGMENT : NALIN KUMAR SRIVASTAVA, J. 1. This criminal revision is directed against the order dated 28.5.2025 passed by the learned Sessions Judge, Jhansi in S.T. No. 960 of 2022 ( State Vs. Sunil Tiwari and others ) arising out of Case Crime No. 85 of 2022 under sections 147, 302, 201 IPC, Police Station Punchha, District Jhansi whereby the Application 33-B under section 319 Cr.P.C. moved by the prosecution was allowed and the revisionists were summoned to face trial for the said offences. 2. Heard Shri Ramanuj Yadav, learned counsel for the revisionists, Sri Phool Singh Yadav, learned counsel for the opposite party no.2 and Shri Akhilesh Kumar Mishra, learned A.G.A. for the State. 3. The brief facts of the case, as unfolded in the F.I.R., are as follows : On 9.5.2022 at about 9.00 p.m. Dipendra Yadav @ Deepu, brother of the informant, had gone to attend the marriage ceremony of Lokendra Singh Yadav's nephew to village Madora Khurd and a quarrel started there between Lokendra Singh Yadav, Amit Tiwari, Anuj and Deepu and thereafter, Chandra Shekhar Tiwari, Lokendra Singh Yadav, Amit Tiwari, Anuj Pandey, Sanchit Yadav, Sunil Tiwari tied his brother to a pillar of Chandra Shekhar Tiwari's verandah and he was beaten by them. When brother of the informant did not return home till evening, he was searched for but not found anywhere and the above mentioned people kidnapped him and made him disappear. On 10.5.2022 at 11.30 a.m. his body was found hanging on a tree at a deserted place on the highway, which was hung after committing his murder by the said accused persons. The incident was witnessed by Avadhesh Yadav. F.I.R. was lodged on 12.5.2022 at 11.35 a.m. under Sections 147, 302, 201 IPC. 4. It is submitted by learned counsel for the revisionists that although the present revisionists were named accused in the F.I.R. but the Investigating Officer of this case found absolutely no evidence disclosing their involvement during investigation hence they were exonerated by the Investigating Officer, however charge sheet was submitted only against the accused Sunil Tiwari. 5. Further argument is that the story set up by the prosecution is false and fabricated. The informant/PW-1 is not an eye witness of the occurrence and some major contradictions are clearly visible in his statement in examination-in-chief and cross-examination which makes his deposition inconsistent and unreliable. 5. Further argument is that the story set up by the prosecution is false and fabricated. The informant/PW-1 is not an eye witness of the occurrence and some major contradictions are clearly visible in his statement in examination-in-chief and cross-examination which makes his deposition inconsistent and unreliable. It is also submitted that it is explicitly clear from the record that the I.O. of this case found absolutely no evidence against the present revisionists and that was the reason they were exonerated and no charge sheet was submitted against them. 6. Another limb of the argument is that the PW-1 and PW-2 have made relevant improvements in their deposition recorded before the Court. The present revisionists are innocent and they have been falsely implicated in this matter. They were not present on the spot at the time of the incident. It is further submitted that though it has been alleged in the F.I.R. that the deceased was assaulted by the accused persons but no injury is found on his body in the post mortem report and the cause of death was found asphyxia due to ante mortem strangulation. 7. It is also urged that the trial court must have taken into account the statements recorded by the I.O. and materials collected by him during investigation. Hence, the trial court on the basis of shaky and inconsistent oral testimony of the witnesses, which is full of material contradictions, passed an arbitrary and illegal order to summon the revisionists to face trial under Sections 147, 302, 201 IPC which suffers from infirmity and perversity warranting interference by this Court. 8. Per contra, learned A.G.A. and learned counsel for the opposite party no.2 / informant vehemently opposed the prayer and it has been submitted that the present revisionists were named in the F.I.R. of this case and role of assault has also been attributed to them. However, some witnesses were won over by them during investigation. Two witnesses of fact have been examined before the trial court and both of them have proved the active participation of the present revisionists in the commission of the alleged crime. However, some witnesses were won over by them during investigation. Two witnesses of fact have been examined before the trial court and both of them have proved the active participation of the present revisionists in the commission of the alleged crime. It is further submitted that even if it is presumed that PW-1 was not present on the place of occurrence at the time of incident but the F.I.R. version has been firmly corroborated by the eye witness - PW-2 and he has assigned specific role of assault to all the revisionists alongwith other co- accused Sunil Tiwari. It is also submitted that while deciding the application under Section 319 CrPC the Court must take into consideration the entire testimony of the witnesses recorded before the Court. The trial court relying upon the evidence of PW-1 and PW-2, which corroborates the F.I.R. version and on being satisfied that there is sufficient material to summon the present revisionists to face trial for the relevant offences, summoned them accordingly. There are no material contradictions in the statements of PW-1 and PW-2 in respect of complicity of the present revisionists in the incident. It is also submitted that the medical evidence fully corroborates the prosecution version. The trial court has not committed any irregularity, illegality or impropriety in passing the impugned order. 9. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully. 10. A perusal of the material available on record transpires that PW-1 - Krishna Kumar (informant), PW-2 - Awadhesh Kumar (eye witness) were examined before the trial court and at that stage an application under Section 319 CrPC to summon the present revisionists to face trial for the offences under Sections 147, 302, 201 IPC was moved by the informant. The trial court relied upon the statement of PW-1, the informant, who in his examination-in-chief supported the prosecution story and stated that Avadhesh witnessed this incident on the spot and told him. He is not an eye witness of the incident. The trial court relied upon the statement of PW-1, the informant, who in his examination-in-chief supported the prosecution story and stated that Avadhesh witnessed this incident on the spot and told him. He is not an eye witness of the incident. PW-2 - Awadhesh Kumar naratting the incident corroborates the prosecution version and gave ocular evidence of the occurrence in his examination-in-chief and it was added by him that all the accused persons Chandra Shekhar Tiwari, Lokendra Singh Yadav, Amit Tiwari, Anuj Pandey, Sanchit Yadav and Sunil Tiwari were beating Deepu with lathi, danda, kicking and fisting and they dragged him into the gate of Chandrashekar Tiwari and when he tried to mitigate, he was threatened to leave the place. The trial court finding a prima facie case against the revisionists allowed the application of the informant and all the revisionists were summoned to face trial for the offence Sections 147, 302, 201 IPC vide impuged order alongwith the accused Sunil Tiwari, who was already facing the trial. 11. The latest law over the subject is Satbir Singh vs. Rajesh Kumar and others , (2025) 5 SCC 740 wherein reiterating the established law rendered by the Constitution Bench in Hardeep Singh Vs. State of Punjab and others , 2014 (85) ACC 313 , the Hon'ble Apex Court in paragraph 16 of the said judgment explained the law over the subject relying upon the Constitution Bench decision in Hardeep Singh case (supra) and quoted the conclusions arrived at by the Hon'ble Supreme Court qua the questions arising for consideration and decision and it was quoted as under : "117. We accordingly sum up our conclusions as follows: Questions (i) and (iii) What is the stage at which power under Section 319 CrPC can be exercised? Whether the word "evidence" used in Section 319(1) CrPC has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? Answer 117.1. In Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. In Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of the investigation. Such cognizance can be taken under Section 193 CrPC and the Sessions Judge need not wait till "evidence" under Section 319 CrPC becomes available for summoning an additional accused. 117.2. Section 319 CrPC, significantly, uses two expressions that have to be taken note of i.e. (1) inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 CrPC, and under Section 398 CrPC are species of the inquiry contemplated by Section 319 CrPC. Materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 CrPC, and also to add an accused whose name has been shown in Column 2 of the charge-sheet. 117.3. In view of the above position the word "evidence" in Section 319 CrPC has to be broadly understood and not literally i.e. as evidence brought during a trial. Question (ii)—Whether the word "evidence" used in Section 319(1) CrPC could only mean evidence tested by cross- examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? Answer 117.4. Considering the fact that under Section 319 CrPC a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) CrPC the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question (iv)—What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? Answer 117.5. Question (iv)—What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 319(1) CrPC can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? Answer 117.5. Though under Section 319(4)(b) CrPC the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 CrPC would be the same as for framing a charge [ In para 106, the Court held: [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 , SCC p. 138, para 106]" 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 difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question (v)—Does the power under Section 319 CrPC extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged? Answer 117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial. Answer 117.6. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh." 12. In the case in hand also the impugned order passed by the trial court is needed to be examined in the light of the aforesaid settled law with a caution that any observation may not make any influence upon the trial. 13. Further, the Courts' power for invoking under Section 319 Cr.P.C. with regard to the accused, who is not named in the F.I.R. or if named, no charge-sheet was submitted against him or even he has been discharged by the Court is well recognized. At the stage of inquiry when the Court uses its power for the aforesaid purpose, it may take into consideration all the materials collected by the Investigating Officer during investigation or even the statement recorded under sections 200 and 202 Cr.P.C., as the case may be, and it acts at a pre-congnizance stage of the matter before filing the charge-sheet by the police. However, after submission of the charge-sheet and after framing of charges when the trial commences and evidence of witnesses is recorded, the trial court may pass an order under Section 319 CrPC to summon a person as co-accused alongwith the accused persons who are already facing trial and at this stage no extraneous material is to be looked into or considered by the trial court except the deposition of the witnesses recorded before the Court. 14. 14. It is vehemently argued by the learned counsel for the revisionists that during investigation the I.O. collected absolutely no evidence against the revisionists and the trial court was not empowered to replace the evidence recorded during trial where it found some materials adverse to the revisionists by totally ignoring the evidence collected during investigation and if evidence and materials collected during investigation by the I.O. are also considered the situation turns in support of the revisionists and the trial court commits a legal error in totally discarding the evidence which was found during investigation. 15. To diminish the aforesaid plea the observations made in Hardeep Singh case (supra) and another landmark judgment in Brijendra Singh & others Vs. State of Rajasthan, 2017 (7) SCC 706 are also to be taken support of which authoritatively pronounce that the trial court must keep attention to the fact that the material and evidence collected during investigation which corroborates the prosecution story only can be taken cognizance of for the purpose of summoning the accused under Section 319 CrPC and the principle which emerges out from the judgments of Hardeep Singh case and Brijendra Sing case (supra) is that the statement and evidence recorded and collected by the I.O. during investigation may always be taken as a corroborative piece of evidence by the Courts during trial. This is the evidence recorded before the Court which always finds preference and supremacy over the evidence collected by the I.O. during investigation. 16. If on the basis of aforesaid legal position the oral evidence recorded before the Court is examined it is crystal clear from the deposition of PW-1 and PW-2 that they have deposed that accused persons Lokendra Singh Yadav, Amit Tiwari, Anuj Pandey started altercation with Dipendra Yadav @ Deep Yadav and subsequently accused Chandra Shekhar Tiwari, Lokendra Singh Yadav, Sunil Tiwari, Amit Tiwari tied the deceased Dipendra , the brother of the informant, with a pole and made assault upon him. Although PW-1 is not the eye witness of the incident but he has named Awadhesh Singh as eye witness of the incident and the said Awadhesh Singh, who appeared as PW-2, has stated before the Court in his deposition, the ocular evidence of the matter and he has named all the six persons who also find place in the statement of PW-1 to commit the crime jointly. The prosecution story set up in the F.I.R. finds full corroboration by the deposition of PW-1 and PW-2. 17. The dictum of law promulgated by the Hon'ble Supreme Court in the judicial pronouncement may be summarized as mentioned hereinafter and it can be safely held that the Court during trial is justified to look into the materials collected during investigation by the Investigating Officer but however such materials and evidence can be used only for corroboration of the evidence recorded in the Court after the trial commences for the exercise of power under section 319 Cr.P.C. 18. A specific plea has been taken by the learned counsel for the revisionist to assail the impugned order that in the post mortem report of the deceased besides a ligature mark only one injury has been found below the left ear of the deceased by the doctor whereas as per the prosecution case several accused persons had beaten him. Hence the prosecution story is highly suspicious and it was not probable that if a person is being beaten by many persons how he could sustain only one injury over his body. 19. To meet out the aforesaid submission, learned counsel for the opposite party no.2 and the learned AGA vehemently contended that besides the ligature mark one other injury was found over the body of the deceased which was "Upward and backward along the line of mandible ligature mark, situated 6 cm below right ear, 6 cm below chin, 5 cm below left ear." It is also submitted that the injuries sustained by the deceased may be explained at the proper stage of trial before the trial court. It is further submitted that in the autopsy report cause of death of the deceased has been found asphyxia due to ante mortem strangulation. 20. In this backdrop, the oral evidence on record was examined by this court. It is further submitted that in the autopsy report cause of death of the deceased has been found asphyxia due to ante mortem strangulation. 20. In this backdrop, the oral evidence on record was examined by this court. The present revisionists, who are named in the F.I.R., have been specifically named by PW- 2, the eye witness of this case, and he has assigned role of assault upon the deceased Deepu Yadav to all of them by use of lathi, danda, kicking and fisting and further he has stated that after beating him he was tied by the revisionists and was forcefully dragged into the gate of the house of Chandra Shekhar Tiwari and when he tried to persuade the matter, Chandra Shekhar Tiwari, revisionist no.1, threatened him to leave the place at once and he (PW-2) left the place of occurrence and subsequently the dead body of Deepu was found hanging in a tree. He further states that his dead body was hidden somewhere in the house and in the night the revisionists / accused persons took the dead body of the deceased and hanged it from a tree. The said statement made on oath by PW-2 before the Court is found in tact and consistent if it is examined on the face of his entire deposition including the cross-examination. Awadhesh Kumar - PW-2 appears to be an innocent witness, who had no reason to falsely implicate the revisionists in the offence of murder. He has also stated that for about five minutes the deceased was beaten by the accused persons but no assault by use of 'lathi' was made by them. It is true that the dead body of the deceased was not hanged before this witness but since the incident of assault upon the deceased has been strongly corroborated by this witness, it can be easily inferred prima facie that the revisionists were the persons who hanged the dead body of the deceased on tree. In fact the entire deposition of PW-2 is relevant taking recourse of Section 6 of the Evidence Act also, which is based upon the theory of res gestae evidence. The said Section 6 reads as under : " Section 6. In fact the entire deposition of PW-2 is relevant taking recourse of Section 6 of the Evidence Act also, which is based upon the theory of res gestae evidence. The said Section 6 reads as under : " Section 6. Relevancy of facts forming part of same transaction - Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places." 21. In State of U.P. vs. Bashisht Rai & others, 2006 (5) ALJ (NOC) 902 (All) , this Court has held that for application of Section 6 of the Evidence Act it is necessary that fact must not be too remote but a part of single transaction. Whatever is stated by eye witness to murder immediately after incident as to participation of accused would be res gastae evidence, same would be admissible in evidence under Section 6. 22. PW-2, the eye witness, although in his initial deposition has stated that assault was made by use of lathi, danda, kicking and fisting but however further he clarifies that lathi was not used during incident. The contention raised by the learned counsel for the revisionists regarding the injuries sustained by him is a fact which can be explained only after recording the evidence and at this stage this Court does not need to go into deep in marshaling the evidence recorded before the Court. 23. It is a trite law, particularly after the pronouncement of the judgment of the Hon'ble Supreme Court in the case of Hardeep Singh (supra) and further reiterated in Brijendra Singh case (supra) and very recently in the case of Satbir Singh (supra) that an effective order under Section 319 Cr.P.C. may very well be passed by the trial court relying only on the statement made by a witness in his examination-in-chief and there is no need to wait for the cross-examination of such witness which makes the prosecution easy to move an application under Section 319 Cr.P.C. and to force the court to rely upon the same. 24. It is on the touchstone of the settled law, this Court has examined the correctness and validity of the impugned order passed by the learned Sessions Court. 24. It is on the touchstone of the settled law, this Court has examined the correctness and validity of the impugned order passed by the learned Sessions Court. There is constant and reliable ocular evidence of PW-2 on record to show the complicity of the revisionists in the alleged occurrence alongwith the accused who is already facing the trial. They all were alleged to have participated in the commission of crime altogether having same role. Hence, the revisionists could safely be tried together with the accused Sunil Tiwari. 25. Now it is trite law particularly after the judgment of Hon'ble Supreme Court passed in Hardeep Singh (supra) case that since the Court exercises discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at a satisfaction for the role played by the proposed accused and 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. 26. On the basis of aforesaid discussion, in the peculiar facts and circumstances of the case, this Court is of the view that the impugned order is sustainable. The evidence on record which was recorded before the trial court definitely makes out a prima facie case against the proposed accused persons which is more than a prima facie case as exercised at the time of framing of charge but less than such a satisfaction that the evidence, if goes unrebutted, would lead to conviction. From the entire testimony of PW-2 prima facie it appears that the accused persons / revisionists also have played an active role in commission of the crime and the Court concerned committed no mistake to summon them to face trial for the offence under Sections 147, 302, 201 IPC. 27. In view of the above discussion, in my view, there is no infirmity, illegality, perversity or lack of judicial mind in the impugned order dated 28.5.2025 and the said order is liable to be affirmed and the criminal revision deserves to be dismissed. 28. The criminal revision is accordingly dismissed . 27. In view of the above discussion, in my view, there is no infirmity, illegality, perversity or lack of judicial mind in the impugned order dated 28.5.2025 and the said order is liable to be affirmed and the criminal revision deserves to be dismissed. 28. The criminal revision is accordingly dismissed . The impugned order order dated 28.5.2025 passed by learned Sessions Judge, Jhansi in S.T. No. 960 of 2022 ( State Vs. Sunil Tiwari and others ) arising out of Case Crime No. 85 of 2022 under sections 147, 302, 201 IPC, Police Station Punchha, District Jhansi is affirmed. 29. Copy of this order be sent to the court concerned for compliance and necessary action.