Arun Tiwari S/o Shri Shriprasad Tiwari Aged About 29 Years Unemployed, R/o H.No. 141/9 v. 1 - Gulshan Nag, S/o Ramesh Nag R/o Phulwari Chauk, Rawa Bhata, Thana Khamtarai
Case Details
1 PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2025.08.22 17:20:13 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR Criminal Revision No. 719 of 2016 Arun Tiwari S/o Shri Shriprasad Tiwari Aged About 29 Years Unemployed, R/o H.No. 141/9 Danteshwari Chauk, Ward No. 13, Rawa Bhata, Post Birgaon, Thana Khamtarai, District Raipur, Chhattisgarh, ... Applicant versus 1 - Gulshan Nag, S/o Ramesh Nag R/o Phulwari Chauk, Rawa Bhata, Thana Khamtarai, District Raipur, Chhattisgarh. 2 - Gaukaran Shastri S/o Vinod Shastri R/o Rawa Bhata, Thana Khamtrai, District Raipur, Chhattisgarh. 3 - State of Chhattisgarh Through Station Incharge, Police Station Takhatpur, Takhatpur, District Bilaspur, Chhattisgarh, ... Respondents For Applicant : Mr. Arvind Shrivastava, Advocate For State/Respondent No.3
Legal Reasoning
: Ms. Pragya Pandey, Dy. Govt. Advocate For Respondent No.1 & 2 : None Hon’ble Shri Justice Radhakishan Agrawal, Order on Board 18.08.2025 1. The present criminal revision has been filed by the applicant under Section 397 read with Section 401 and 482 of the Criminal Procedure Code, 1973 (hereinafter ‘the Cr.P.C.’) against the order dated 26.05.2016 passed by 4th Additional Sessions Judge, District – Raipur, Chhattisgarh in Sessions Trial No.178/2015 wherein the application filed under Section 319 of Cr.P.C. by the State for impleading Gulshan and Gaukaran (respondent No.1 and 2 herein respectively) as accused persons for the commission of crime, has been rejected by the learned Trial Court. 2. Case of the prosecution, in brief, is that on 04.05.2015 at about 10:10 PM, Bhupendra Yadav, who was armed with knife like sharp weapon along with others, in furtherance of their common intention, assaulted Amit 2 Tiwari at Danteshwari Chowk, Rawabhata, and owing to assault, he suffered grievous injuries, and thereby committed the offence. The incident was witnessed by Naeem Khan (PW-01) and on the information given by the deceased, his brother present applicant Arun Tiwari (PW-05) reported the matter to the police and consequently, FIR was registered vide Ex.P-12 against Bhupendra Yadav and other persons. Thereafter, Amit Tiwari was medically examined by Dr. Shirish Yadu (PW-08) vide Ex.P-28 in which stab injuries were found and thereafter, he died and his postmortem was conducted by Dr. S.K. Bagh (PW-10) which is marked as Ex.P-15, in which, he noticed four stab injuries on thigh and according to the doctor, those injuries have been caused by sharp-edged weapon and were sufficient in ordinary course of nature to cause death. Pursuant to the memorandum statement of accused Bhupendra Yadav recorded vide Ex.P-08, knife was seized vide Ex.P-09. 3. Statements of witnesses were recorded under Section 161 of the Cr.P.C. and after completion of due investigation, charge-sheet was filed against the accused persons against Bhupendra Yadav, Rajkumar Yadav, Rajendra Pandey and Ramayan Singh in the Court of Additional Chief Judicial Magistrate, Raipur, who in turn, committed the case to the Court of Sessions, Raipur. 4. During trial, the prosecution moved an application under Section 319 of Cr.P.C. for impleading respondent No.1 – Gulshan Nag and respondent No.2 - Gaukaran Shastri, as additional accused persons for the commission of crime. The learned Trial Court, considering the statements of prosecution witnesses and materials documents available on record, rejected the application vide its order dated 26.05.2016, against which the present applicant (brother of deceased) approached this Court by way of present revision. 5. Shri Arvind Shrivastava, learned Counsel appearing for the applicant 3 submits that in the statements recorded by the Trial Court, Naeem Khan (PW-01), Smt. Urmila Tiwari (PW-02) and Arun Tiwari (PW-05) have specifically stated the names of Gulshan and Gaukaran along with other co-accused persons and their involvement in the crime in question with a common intention to cause murder of Amit Tiwari, based on which, prosecution filed an application subsequently under Section 319 of Cr.P.C. for impleadment of their names for the commission of crime. However, the Trial Court did not consider the reasons assigned in the said application and wrongly rejected the said application. 6. On the other hand, learned State Counsel supported the contention of the applicant while submitting that after completion of the investigation, the alleged four accused persons were charge-sheeted. 7. I have heard learned counsel appearing for the parties and perused the record carefully. 8. In the background of the rival contentions, in order to determine the question referred before this Court, it would be apt to take note of the provision as contained in Section 319 of Cr.P.C. which reads as under: 319. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. xxx xxx xxx xxx xxx xxx xxx xxx 9. The above provision would clearly reveal that the trial Court, during trial, if it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, may proceed against such person who appears to have committed. 10. In the matter of Sukhpal Singh Khaira vs. State of Punjab reported in (2023) 1 SCC 289, the Hon’ble Supreme Court, after quoting the Section 4 319 of Cr.P.C., observed in paragraph 15 as under: “15. At the outset, having noted the provision, it is amply clear that the power bestowed on the court is to the effect that in the course of an inquiry into, or trial of an offence, based on the evidence tendered before the Court, if it appears to the court that such evidence points to any person other than the accused who are being tried before the court to have committed any offence and such accused has been excluded in the charge-sheet or in the process of trial till such time could still be summoned and tried together with the accused for the offence which appears to have been committed by such persons summoned as additional accused.” 11. Yet in another matter rendered in the matter of R. Dineshkumar Vs. State, reported in (2015) 7 SCC 497, the Hon’ble Supreme Court after quoting sub-section (1) of Section 319 of Cr.P.C. has laid down twin requirements in paragraph 8 which reads as under:- xxx xxx xxx xxx 8. Section 319 Cr.P.C. insofar as it is relevant for the purpose of the present case reads as follows: “319. xxx xxx The section authorises the court making any inquiry into or conducting the trial of an offence to “proceed” against any person (other than the accused facing trial) subject to two conditions (I) that from the “evidence” it appears to the court that such a person “has committed any offence”, and (ii) that such a person “could be tried together with the accused”. xxx xxx 12. In the light of above referred judgments and the provisions to Section 319 of Cr.P.C. it is quite vivid that the statements recorded under Section 161 of Cr.P.C. marked as Ex.D1, D2 and D4 would not show the names of respondent Nos. 1 & 2 herein as one of the perpetrator of the crime in question whereas from perusal of statements under Section 164 Cr.P.C. recorded before the Trial Court, all the three above witnesses have subsequently added the names of Gulshan and Gaukaran as perpetrators of the crime in question. The prosecution on the basis of Court statements of the above witnesses, had filed the said application for their impleadment for commission of crime. Although their Court statements 5 would reveal that respondent No.1 and 2, Gulshan and Gaukaran were alleged to have accompanied by other co-accused persons to hold the deceased Amit Kumar and Bhupendra assaulted the deceased with knife, but in FIR, lodged by Arun Tiwari (PW-05), brother of the deceased, immediately after the incident, only the name of Bhupendra was mentioned as accused and the names of other persons are not mentioned. Even in the final report submitted by the police, the names of alleged four accused persons were mentioned but the names of present respondents Gulshan and Gaukaran were not added along with the alleged four accused persons. In addition, even in their 161 Cr.P.C. statement would not show the names of respondent No.1 and 2, Gulshan and Gaukaran, to have been participated in the said assault. 13. It appears that the Trial Court ultimately vide its judgment dated 11.07.2016, after appreciating the evidence available on record, convicted and sentenced the 4 accused persons under Sections 302/34 of the IPC and sentenced them to life imprisonment with fine of Rs.500/- each and in addition thereto, Bhupendra Yadav was convicted also under Section 25 & 27 of the Arms Act and sentenced him to undergo R.I. for 5 and 3 years with fine of Rs.500/- on each count. However, the Division Bench of this Court, in CRA No.1319/2016, filed by the said 4 accused persons, vide judgment dated 30.11.2023, partly allowed the appeal while maintaining the conviction and sentence awarded to Bhupendra Yadav and acquitted the remaining accused persons of the charge under Section 302/34 of IPC on the ground of benefit of doubt. While deciding the said appeal, this Court in the above appeal held in paragraphs 28, 29 & 30 which are relevant for the purpose of the present case read as follows:- 28. Following the principles of law laid down by their Lordships of the Supreme Court with regard to applicability and scope of Section 34 of the IPC in above-stated judgments and keeping in mind those principles, reverting to 6 the facts of the present case, it is quite vivid that immediately after the incident, on being informed, Arun Tiwari (PW-5) brother of the deceased has reported the matter to the police in which except appellant No.1 herein i.e. Bhupendra Yadav (A-1), none of the appellants herein have been named in the FIR and Naeem Khan (PW-1) though has stated that firstly, Ramayan Singh (A-3) caught hold of the deceased and thereafter, Gore Pandey (A-4) & Rajkumar Yadav (A-2) had also caught hold of the deceased, but there is no concrete evidence available on record and no overt-act has been stated by Naeem Khan (PW-1) so far as appellants No.2 to 4 herein are concerned, and even they were not armed with any weapon and no weapon has been seized from them as no memorandum statement of these accused persons (appellants No.2 to 4 herein) has been recorded. The prosecution was under obligation to prove that appellants No.2 to 4 have committed the overt-act or they were having knowledge that appellant No.1 might cause fatal injuries to deceased Amit Tiwari which may result in his death and thus, the fact of common intention has not been established and overt-act has also not been established. Furthermore, it has also not been established beyond doubt by the prosecution that injuries were caused by appellant No.1 in furtherance of common intention with A-2 to A-4. 29. In that view of the matter, conviction of appellants No.2 to 4 namely, @Gore Pandey (A-4) with the aid of Section 34 of the IPC is hereby set aside and they are acquitted of the charge under Section 302 read with Section 34 of the IPC on the ground of benefit of doubt. They are in jail since 5-5- 2015, 15-5-2015 & 18-5-2015, respectively. They be set at liberty at once. They be released forthwith, if not required in any other case.
Decision
30. In the result, the appeal so far as it relates to appellant No.1 is dismissed and so far as it relates to appellants No.2 to 4 is allowed. 14. It is pertinent of mention here that the Trial Court while deciding the application filed under Section 319 of Cr.P.C. has observed that firstly the FIR (Ex.P-12) has been registered against the name of Bhupendra Yadav and did not name the other accused persons. Further, in the statement of prosecution witnesses, namely, Naeem Khan (PW-01), Smt. Urmila Tiwari (PW-02) and Arun Tiwari (PW-05) recorded under Section 161 of Cr.P.C., the names of Gulshan and Gaukaran had not been mentioned regarding 7 their involvement in the alleged act. Furthermore, a perusal of the record does not suggest that Gaukaran and Gulshan assisted in committing the alleged crime, as the prosecution did not conduct a test identification parade for them. Moreover, in the FIR which was promptly lodged by Arun Tiwari (PW-05), brother of the deceased, the names of respondent Nos. 1 and 2 (Gulshan and Gaukaran) were not mentioned, except for that of the accused, Bhupendra Yadav. In such a situation, the Trial Court has dismissed the application under Section 319 of Cr.P.C. 15. Considering the facts and circumstances of the case and in view of the above, I am of the opinion that the Trial Court was justified in rejecting the application. 16. For the foregoing reasons, the impugned order dated 26.05.2016 passed by the Trial Court rejecting the application for impleadment of Gulshan and Gaukaran as accused persons in the commission of alleged crime, is justified. Accordingly, the revision is liable to be and is hereby dismissed. Sd/- (Radhakishan Agrawal) Judge Prakash/Anjani