High Court
Case Details
Court No. - 89 Case :- CRIMINAL REVISION No. - 4242 of 2022 Revisionist :- Jaglal Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Dhanraj Singh Yadav Counsel for Opposite Party :- G.A.,Manoj Kumar Tiwari Hon'ble Syed Aftab Husain Rizvi,J. Counter affidavits filed on behalf of O.P. Nos. 1 and 2, are taken on record.
Legal Reasoning
The Apex Court in a catena of decisions has held that powers under section 319 Cr.P.C. is an extra-ordinary power it should be exercised sparingly and cautiously. The test as laid down by the 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 made than prima facie case, which is applied at the time of framing of charge. In this case there is cogent evidence on record in the form of testimony of the complainant Raju (P.W. 1)/injured witness Kamal (P.W. 2) and eye witness Nand Lal, P.W. 3. The remaining arguments as assailed by the learned counsel for the revisionist are all matter of trial which can not be considered and appreciated at this stage. From the evidence and material available on record it appears that the learned trial court in exercising the powers under section 319 Cr.P.C. has not committed any error. The learned trial court has rightly exercised his powers on the basis of sufficient and cogent evidence and material available on record, so there is no illegality in the impugned summoning order. This criminal revision is devoid of merits and is hereby dismissed. Order Date :- 6.2.2023 Masarrat Digitally signed by :- MASARRAT HUSAIN High Court of Judicature at Allahabad
Arguments
Heard learned counsel for the revisionist, learned A.G.A. for the State and learned counsel for the O.P. No. 2. This criminal revision is directed against the order dated 22.9.2022 passed by Additional Sessions Judge, Court No. 12, Kanpur Nagar in S.T. No. 207 of 2017 (State Vs. Vijay Pal and others) Crime No. 19 of 2017, under section 323, 324, 308, 504, 304 IPC, P.S. Narwal, District Kanpur Nagar. By the impugned order the learned court below on the application of prosecution under section 319 Cr.P.C. has summoned the revisionist-accused to face trial with co-accused for offence under section 323, 324, 308, 504 and 304 IPC. An FIR was lodged by O.P. No. 2 on 11.3.2017 alleging therein that on 11.3.2017 Rahul, son of complainant and Kamal, brother of the complainant have gone to their field to fetch milk. Then Vijay Pal, Mohan Lal, Jaglal and Gulab who were hiding near a tree suddenly at about 7:00 p.m. hurling abuses stated that why they have restrained from lifting wood and started to assault with lathi, danda and axe. The son of complainant suffered serious injuries. He fell down and become unconscious. Kamal also received injuries. The accused persons run away from the spot. FIR was registered for offence under section 323, 324, 308 and 504 IPC. Rahul succumbed to his injuries and section 304 IPC was added. Charge-sheet was submitted only against Vijaypal and Gulab while Mohan Lal and Jaglal were exonerated. During trial Raju, complainant (P.W. 1) and Kamal, injured (P.W. 2) were examined. Thereafter, an application under section 319 Cr.P.C. was moved by the prosecution. The learned trial court by the impugned order has allowed the aforesaid application and summoned the revisionist- accused. Learned counsel for the revisionist contended that revisionist- accused is innocent and has been falsely implicated due to previous enmity. No specific role has been assigned to the revisionist. One person Rahul has died in the incident. According to postmortem report he suffered one injury of incised wound which has been caused by the axe, so the revisionist is not involved in it. The other injured Kamal has not suffered any visible injury. He has not been medically examined and no medico legal report of Kamal is available on record. I also shows that revisionist is not involved in the incident. It is further contended that there is a cross version and co-accused Vijaypal has also lodged an FIR against the first informant and others. Being a family member the revisionist-accused has been falsely implicated. The I.O. during course of investigation has recorded the statement of independent witnesses and they have stated that revisionist-accused was not present at the place of occurrence. They have also stated that revisionist has gone to the house of in- laws of daughter for Chauthi ceremony and was not present at the place of occurrence on the alleged date of incident. On the basis of statements of independent witnesses the I.O. has exonerated the revisionist-accused and has filed charge-sheet only against co- accused Vijaypal and Gulab. It is further contended that before the trial court Raju, P.W. 1 and Kamal, P.W. 2 have been examined and they have reiterated their statements recorded under section 161 Cr.P.C. which has not been given credence by the I.O. as independent witnesses have not supported it. There is no allegation against the revisionist. No specific role has been assigned to him. The deceased Rahul has died due to injury caused by axe while no other has sustained injuries. It is further contended that revisionist has been falsely implicated. Lastly it is contended that the learned trial court while passing the impugned order has not considered the evidence collected by I.O. on the basis of which he has exonerated the revisionist-accused. The impugned order is arbitrary and perverse and against the settled principle of law. Learned counsel for the O.P. No. 2 and learned A.G.A. opposed and submitted that the revisionist is named in the FIR. There are clear allegations that he with other co-accused persons actively participated in the offence. One person has died in the incident while others have suffered injuries although he has not been medically examined but that is not necessary. The complainant and other injured witnesses Kamal and another eye witness Nand Lal, P.W. 3 have fully corroborated the allegations of the FIR. Some other witnesses in their statements under section 161 Cr.P.C. have stated about the presence of the revisionist-accused at the place of occurrence. The prosecution has produced three witnesses before the trial court and they have again corroborated the allegations of the FIR showing the complicity of the revisionist- accused in the offence. The I.O. on the basis of some weak type of evidence has exonerated the revisionist-accused. The injured witness Kamal, P.W. 2, complainant, P.W. 1 and another eye witness Nand Lal, P.W. 3 have fully supported the prosecution case so there is sufficient evidence on record to exercise the powers under section 319 Cr.P.C. which has rightly been exercised by the trial court. So there is no illegality in the impugned order. It is established from the material on record that the revisionist is named in the FIR with co-accused persons and there are specific allegations that he with other accused persons holding lathi, danda and axe assaulted Rahul and Kamal. Rahul has died in the incident. The complainant and other witness Kamal in their statements under section 161 Cr.P.C. have corroborated the allegations of the FIR. The I.O. has recorded the statements of some independent witnesses and they have also taken the name of revisionist-accused showing his complicity in the incident but later on the I.O. on the basis of statements of some of the witnesses regarding the fact that revisionist-accused was not present at the place of occurrence on the alleged date of incident has exonerated him. There is cogent evidence in the form of statement of complainant (P.W. 1) Kamal, injured/eye witness of the incident (P.W. 2) and Nand Lal other eye witness (P.W. 3) on the record. The impugned order is detailed and reasoned one. The learned trial court has narrated the entire facts and evidence available on record. After analyzing the evidence available on record the learned trial court has recorded the satisfaction that there is sufficient evidence against the revisionist and has passed the impugned summoning order.