IPC (State v. Mahesh and others) Case Crime No
Case Details
A.F.R. Court No. - 89 Case :- CRIMINAL REVISION No. - 3526 of 2022 Revisionist :- Ashok Kumar And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Vinay Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Syed Aftab Husain Rizvi,J. Heard learned counsel for the revisionists, learned A.G.A. for the State and perused the record. This criminal revision has been filed against the order dated 10.6.2022 passed by Additional Sessions Judge, Court No. 10, Mathura in S.T. No. 396 of 2016, under section 147, 148, 149, 323, 324, 325, 504 and 506 IPC (State Vs. Mahesh and others) Case Crime No. 152 of 2015, P.S. Chhata, District Mathura.
Facts
An FIR was lodged by O.P. No. 2 Smt. Taravati alleging therein that today on 23.4.2015 at about 7:00 a.m. Chetram S/o her Jeth has gone to attend the call of nature. When he was coming back then near the house of Mahesh, Ashok, Ashiwin, Ram Kishan, Mahesh, Bankey, Rajveer and Yogesh holding lathi, danda and Farsa and Har Dayal holding licensee gun and Gajendra holding a country made pistol met him. Chetram ran towards his house and all the accused chased him and Har Dayal opened fire with his licensee gun and Gajendra fired with country made pistol. Chetram narrowling escaped and entered into his house and all the accused persons also entered into the house and on the cries and noise Ram Jeewan, Vijay, Km. Renu and Shaym came to rescue him. All the accused persons assaulted them with lathi, danda and farsa causing them serious injuries. Injured were medically examined. After investigation charge-sheet was submitted only against Mahesh, Ram Kishan, Rajveer, Bankey and Yogesh. During course of trial two prosecution witnesses Smt. Taravati P.W. 1 and Shyam Sunder P.W. 2 were examined. An application under section 319 Cr.P.C. was moved by the prosecution and it was alleged that in the FIR nine persons were named while I.O. has submitted charge-sheet only against five accused persons. The I.O. under indue influence has exonerated Ashok, Ashiwini, Har Dayal and Gajendra while all the accused persons have actively participated in the incident. During trial P.W. 1 Smt. Taravati eye witness and Shyam Sunder P.W. 2 injured witness have been examined and they have implicated the aforesaid accused also in the incident. On the aforesaid ground it was prayed that all the remaining accused persons be also summoned to face trial. The learned trial court after hearing the parties by the impugned order dated 16.6.2022 has allowed the application and summoned all the four accused persons exonerated by the I.O.
Legal Reasoning
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." It is undisputed that revisionists-accused are named in the FIR and there are specific allegations against them that they along with other co-accused persons armed with lathi, danda and other weapons after entering into the house of the complainant assaulted the complainant and others. Five persons have received injuries in this incident. P.W. 1 Smt. Taravati is the complainant while P.W. 2 Shyam Sunder is the injured witness. Both the witnesses have fully corroborated the allegations of the FIR which shows the complicity of the revisionists in the incident. The evidence of an eye witness has greater evidentiary value and unless compelling reasons exist his statement is not to be discarded lightly. The Apex Court in the cases of State of M.P. Vs. Man Singh (2003) 10 SCC 414, Abdul Sayeed Vs. State of M.P. (2010) 10 SCC 259 and State of Uttar Pradesh Vs. Naresh (2011) 4 SCC 324 has laid-down the aforesaid proposition of law. The statements recorded under section 161 Cr.P.C. of the witnesses is not proper. It is sketchy and has no details of the incident. It reflects that the I.O. just to benefit the accused has recorded the statements at his own in highly improper manner. In the impugned order the learned trial court has narrated the entire facts, evidence and legal proposition and after analyzing all the material on record has recorded finding that there is sufficient evidence on record to summon the revisionists-accused. The evidence on record fulfill the standard prescribed for exercising powers under section 319 Cr.P.C. The learned trial court has rightly exercised the powers and on the basis of sufficient material has passed the summoning order. There is no illegality in the impugned summoning order. The revision lacks merit and is hereby dismissed. Order Date :- 11.1.2023 Masarrat Digitally signed by :- MASARRAT HUSAIN High Court of Judicature at Allahabad
Arguments
It is contended by the learned counsel for the revisionists that I.O. has recorded the statements of complainant and injured witnesses. They have not taken the name of revisionists -accused. During course of investigation it was found that they have been falsely implicated and were not involved in the incident. On the aforesaid ground the I.O. exonerated them and has not submitted charge-sheet against them. The FIR has been lodged by the complainant on false and fabricated facts under the pressure of her wife and family members because there is some dispute between the parties. The revisionist nos. 1 and 2 are cousin. The husband of informant and his family members want to settle all the criminal matters and due to this reason they have falsely implicated all the revisionists. It is also contended that all the revisionists were exonerated by the I.O. on the basis of statements and evidence collected during course of investigation but same was not considered by the court below. Learned A.G.A. submitted that revisionists are named in the FIR and there are also allegations against them that they have actively participated in the incident. They assaulted the complainant and others. Five persons have received injuries in this incident. The statements recorded by I.O. under section 161 Cr.P.C. is sketchy, without details of the incident. It is further contended that complainant and injured witnesses examined during course of trial have fully supported the prosecution version and from their statements the complicity of the revisionists- accused is fully established. So there is no illegality in the impugned summoning order. The Apex Court in the case of Hardeep Singh Vs. State of Punjab AIR 2014 Supreme Court 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.