High Court
Case Details
Neutral Citation No. - 2024:AHC:182726 Court No. - 86 Case :- CRIMINAL REVISION No. - 1683 of 2024 Revisionist :- Samrpal Singh Opposite Party :- State Of Up And 2 Others Counsel for Revisionist :- Gambhir Singh Counsel for Opposite Party :- G.A.,Manoj Kumar Tripathi,Vinod Kumar Tirpathi Hon'ble Ram Manohar Narayan Mishra,J.
Legal Reasoning
This criminal revision has been filed against the impugned order dated 4.11.2023 passed by learned Additional District and Session Judge, court no. 6, Bijnor in Session Trial no. 246 of 2019 (State vs. Tahar Singh and others) arising out of Case Crime no. 266 of 2017, under sections 308, 323, 504, 506 IPC, P.S. Heempur Dipa, District Bijnor whereby application under section 319 Cr.P.C. filed by the revisionist to summon the respondent nos. 2 and 3 for facing trial, has been dismissed. Heard learned counsel for the revisionist, learned counsel for respondent no. 2 and learned AGA for the State. According to prosecution version, informant Samarpal Singh lodged FIR at police station concerned on 13.9.2017 at 11:00 am with allegation that accused Yadram Singh, Tahar Singh and Sher Singh and their family members had dug a drain in front of his field in illegal manner which resulted in blocking of his way to his agricultural field. The informant made a complaint to SDM, Chandpur in this regard and an order was passed to close the drain (naali). On 13.9.2017 at around 9:00 am and his co-villagers Tahar Singh and Sher Singh armed with spade, Kamal Singh and Vimal Singh armed with lathi danda and Arvind armed with SBBL gun and Ujjawal having been an axe in his hand came there and engaged in abusing the informant on account of closure of drain. They started beating his brother Nand Kishore whereupon his brother Mahipal rushed from the field and reached the spot but accused persons also gave beating to him. The witnesses Rajendra, Ramesh, Dharveer, Gram Pradhan and some labourers came to rescue the injured persons. The injured Nand Kishor was in unconscious position and injured Mahipal both were brought to police station for lodging the report. Learned counsel for the revisionist submitted that investigating officer wrongly dropped the name of respondent nos. 2 and 3, who were named in the FIR, in the charge-sheet placing reliance on evidence of some persons, who are not concerned with the incident, even their names are not mentioned in the charge-sheet. He next submitted that FIR has been lodged in the matter promptly within two hours of the incident and the grievous injury has been found on the person of injured Nand Kishor as in his x-ray report, fracture on parietal bone was found, another injured Mahipal also received simple injury in the incident. He further submitted that inspite of respondent nos. 2 and 3 having been named in the FIR and their role in the offence has been stated by PW-1 and PW-2 in their evidence before the court, learned trial court has dismissed the application under section 319 Cr.P.C. placing reliance on the statement of some got up witnesses under section 161 Cr.P.C.. He lastly submitted that evidence, which is envisaged for the purposes of exercising power under section 319 Cr.P.C. is evidence recorded during inquiry and trial and that does not include statement recorded under section 161 Cr.P.C. inasmuch as learned trial court had even not mentioned the statement of PW-1 and PW- 2 in respect of complicity of named accused persons in the offence including respondent nos. 2 and 3, therefore, the impugned order is not sustainable and deserves to be set aside and respondent nos. 2 and 3 are liable to be summoned to face trial for said charges. Learned counsel for the revisionist submitted that injured Nand Kishor has stated the complicity of Ujjawal respondent no. 2 in the offence specifically in his testimony before the court. Per contra, learned counsel for respondent nos. 2 and 3 submitted that learned trial court has dismissed the application under section 319 Cr.P.C. after taking into account the totality of facts and circumstances of the case. In FIR itself accused respondent no. 3 Ujjawal is stated to be armed with axe but there is no injury of axe on the person of injured persons. The injury of both injured persons are caused by hard and blunt object as per injury report. He also submitted that respondent nos. 2 and 3 are students and they were named in the FIR only with ulterior motive to ruin their career. Learned trial court has discussed the statement of Assistant Teacher Jitendra Singh recorded under section 161 Cr.P.C., wherein, he has stated that on the basis of attendance register of school, Aditya @ Ujjawal is student of class-12-B in the school and on 13.9.2017 he was present in the school from morning to evening. Another teacher Rohtas stated in his statement under section 161 Cr.P.C. that on 13.9.2017 student Aditya was present is physics practical classes in class-12 and description in this regard is available in science practical statement register of class-12-B available in school record. Even the injured persons Nand Kishore and Mahipal has not stated the presence of respondent nos. 2 and 3 in their statement under section 161 Cr.P.C. There is no illegality, irregularity or perversity in the impugned order passed by the trial court. Learned trial court has rightly quoted the statement of injured Nand Kishor and Mahipal, wherein, injured Nand Kishor has not stated presence of accused Ujjawal in the incident and injured Mahipal has neither named Kamal nor Ujjawal @ Aditya regarding their presence in the offence. From perusal of record it appears that learned trial court has dismissed the application 23-Kha moved under section 319 Cr.P.C. mainly on the basis of statement of injured Nand Kishor and formal witnesses assistant teacher Jitendra and Rohtas and headmaster Dayashankar Singh recorded under section 161 Cr.P.C. during investigation. Learned trial court has reiterated the contents of application under section 319 Cr.P.C., wherein, statement of PW-1 and PW-2 namely Samarpal and Nand Kishor injured are referred, however, learned trial court has nowhere considered the statement of PW-1 and PW-2 in the impugned order. Section 319 Cr.P.C. provides as under:- "(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. (2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under Sub-Section (1) then — (a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced." In Constitution Bench judgement, Hardeep Singh vs. State of Punjab and others, 2014(3) SCC 94, Hon'ble Supreme Court held that the word "evidence" in Section 319 CrPC means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. It is only such evidence that can be taken into account by the Magistrate or the court to decide whether the power under Section 319 CrPC is to be exercised and not on the basis of material collected during the investigation. Later on another judgement in Brijendra Singh and others vs. State of Rajasthan, 2017 AIR (SC) 2839, Hon'ble Court observed that powers of the Court to proceed under section 319 Cr.P.C. even against those persons who are not arraigned as accused, cannot be disputed. This provision is meant to achieve the objective that real culprit should not get away unpunished. Section 319 CrPC 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 CrPC. It is duty of the court. Hon'ble Court observed in last para of the judgement as under:- "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 319 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. " Thus, if we read the ratio of Hardeep Singh (supra) together with Brijendra Singh (supra) it can be discerned that undoubtedly the 'evidence' envisaged under section 319 Cr.P.C. is evidence recorded during trial but keeping in view the dictum of Hon'ble Supreme Court in Brijendra Singh it is obvious that 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 complicity has come on record. Thus, while deciding application under section 319 Cr.P.C. and forming the opinion for recording prima facie satisfaction to exercise power under section 319 Cr.P.C. the trial court may look into the evidence collected during investigation particularly in the case where there are ample material which suggest otherwise the complicity of person which is sought to be added as an accused in exercise of power under section 319 Cr.P.C. In present case, although the IO has exonerated the respondent nos. 2 and 3 from charge-sheet on the ground that these persons were found elsewhere during investigation and these accused are students and their concerned teacher and headmaster appeared before the court and deposed in respect of their presence in the school on the date of alleged incident, yet the learned trial court is also duty bound to look into the sworn testimony of the injured witnesses and form the opinion by passing speaking order in exercise of power under section 319 Cr.P.C. in respect of respondent nos. 2 and 3, who are named in the FIR but their name was dropped in the charge-sheet for the reasons shown during investigation. As learned trial court has ignored the evidence of PW-1 and PW-2 recorded during trial and based its conclusion on statement under section 161 Cr.P.C. while dismissing the application filed by the revisionist under section 319 Cr.P.C., the order is vitiated due to legal infirmity and same cannot be sustained in the eyes of law. Consequently, the impugned order dated 4.11.2023 passed by learned Additional District and Session Judge, court no. 6, Bijnor is set aside. The matter is remitted back to the court below to hear the matter afresh and pass a speaking order on application under section 319 CrP.C. in the light of observations made herein before. The revision is allowed accordingly. Order Date :- 22.11.2024 Dhirendra/