High Court
Case Details
Court No. - 89 Case :- CRIMINAL REVISION No. - 5082 of 2022 Revisionist :- Sachin And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Kripa Shankar Tiwari,Shivani Chaudhary Counsel for Opposite Party :- G.A.,Ram Raj Pandey Hon'ble Syed Aftab Husain Rizvi,J.
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 showing their complicity in the incident. They have been assigned the role of assault being armed with lathi, danda and other weapons. The complainant has suffered injuries in this incident, so she is an injured witness. The complainant in her statement before the trial court has corroborated the allegations of the FIR and has specifically stated that revisionists-accused along with other accused came at her house armed with lathi, danda and other weapons and assaulted her and her son Charchil. 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 learned trial court has narrated the entire facts and evidence available on record and after analyzing the material on record has come to the conclusion that there is sufficient ground to summon the revisionists for the offence under section 323, 504, 506 and 354 IPC. The impugned order is based on cogent evidence which meet the standard prescribed for exercising powers under section 319 Cr.P.C. There is no perversity or illegality in the the finding recorded by the learned trial court. There is no ground to interfere in the impugned order. The revision lacks merit and is hereby dismissed. Order Date :- 9.1.2023 Masarrat Digitally signed by :- MASARRAT HUSAIN High Court of Judicature at Allahabad
Arguments
Heard learned counsel for the revisionists, learned counsel for the O.P. No. 2 as well as learned A.G.A. for the State and perused the record. This criminal revision is filed against the order dated 30.10.2022 passed by Judicial Magistrate, Baghpat in Case No. 1604 of 2021 (State Vs. Rahul and others) Case Crime No. 298 of 2020, P.S. Singhawali, District Baghpat. By the impugned order learned Magistrate has summoned the revisionists under section 319 Cr.P.C. to face trial for the offence under section 323, 504, 506 and 354 IPC. The FIR of this case was lodged on 21.9.2020 at 14:40 hours with regard to the incident dated 15.9.2020 at about 6:30 p.m. Besides other avermnts it is alleged in the FIR that seven accused persons namely Ramesh, Chachin, Smt. Ram Bhateri, Manish, Smt. Sheela, Vilendra and Smt. Suneeta with common intention and armed with Lathi, Danda, country made pistol and sharp edged weapons entered into the house of the first informant and started to assault first informant and his son Charchil causing them injuries. They also torn the clothes of the first informant and threatened her with death. The first informant and her son received injuries in this incident and they were medically examined. After investigation charge-sheet was submitted only against Smt. Sheela, Smt. Ram Bhateri, Vilendra and Rahul. During course of trial the complainant Ilmo was examined as P.W. 1. Thereafter, an application under section 319 Cr.P.C. was moved by the prosecution to summon the other accused persons named in the FIR on the ground that Smt. Ilmo-the complainant is also an injured witness. In her statement before the court she has supported the allegations of the FIR. The learned trial court after hearing the parties by the impugned order has summoned the revisionists to face trial for the offence under section 323, 504, 506 and 354 IPC. It is contended by the learned counsel for the revisionists that according to allegations of the FIR Charchil son of complainant was also assaulted but in his statement under section 161 Cr.P.C. Charchil has not named the revisionists. The complicity of the revisionists was also not found in the incident by the I.O. during course of investigation and they were exonerated. It is also contended that FIR has been lodged with delay of six days without any plausible explanation. The learned trial court has not considered the objections filed against the application under section 319 Cr.P.C. while passing the impugned order. The learned trial court has passed the order in a cursory manner without application of mind. During course of investigation it is found that Sachin is employed in police department and on the alleged date of incident he was present on his duty. It is next contended that till the time of passing the impugned order only one witness P.W. 1 has been examined and only on that basis the impugned order has been passed which is perverse and illegal. Learned A.G.A. and learned counsel for the O.P. No. 2 contended that revisionists are named in the FIR with specific allegations of being armed with deadly weapons, lathi, danda and assault. The complainant and her son have suffered injuries in this incident. The complainant is also an injured witness. She has fully corroborated the allegations of the FIR and her previous statement under section 161 Cr.P.C. The I.O. has not recorded the statement of injured witness namely Charchil and just to benefit the accused recorded his statement at his own and on its basis exonerated the revisionist-accused. It is further contended that the complainant/injured witness in her statement before the court has fully corroborated the prosecution story as set up in the FIR and the complicity of the revisionist is established from it. The learned trial court after considering the entire material on record came to the conclusion that the complicity of the revisionists-accused is fully established and has passed the summoning order, 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.