High Court · 2025

Revisionist :- Shriram Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Swati Agrawal Srivastava Counsel for Opposite Party :- Ranjeet Yadav,G.A. Connected with Case :- CRIMINAL REVISION No. - 3602 of 2025 Revisionist :- Ashok Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Swati Agrawal Srivastava Counsel for Opposite Party :- G.A.,Ranjeet Yadav Hon'ble Nalin Kumar Srivastava,J.

1. Since these criminal revisions arise out of same impugned order, they have been heard together and are being decided by a common order.

2. Heard learned counsel for the revisionists, learned A.G.A. for the State as well as learned counsel for the opposite party no. 2 and perused the record.

3. Admit.

4. The present criminal revisions have been preferred by the revisionists - Shriram and Ashok against the order dated 28.05.2025 passed by the Additional Sessions Judge/Special Judge POCSO Act II, Jaunpur in Session Trial No. 179 of 2024 (State Vs. Santosh Kumar Yadav @ Bhotu and others), arising out of Case Crime No. 08 of 2024, under Sections 323, 304 I.P.C., Police Station Rampur, District Jaunpur whereby the application under Section 319 Cr.P.C. moved by the opposite party no. 2 was allowed and the revisionists were summoned under Sections 323, 304 I.P.C. to face trial.

5. An F.I.R. was lodged at Police Station Rampur, District Jaunpur by the informant Karishma Yadav alleging therein that on 21.01.2024 at about 3.00 P.M. when her father was going for filling the gas cylinder, he was bitterly assaulted by Ram Dular Yadav and Santosh Yadav with lathi and danda who sustained serious injuries and was taken to the District Hospital, Jaunpur. The F.I.R. was lodged on the same day at 16.55 P.M. However, during course of investigation, injured Shiv Shanker Yadav died and matter was converted under Section 304 I.P.C. After investigation, charge sheet was submitted by the police against named accused persons Ram Dular Yadav and Santosh Yadav under Sections 323, 304 I.P.C.

6. It is to be noted that the injured Shiv Shanker was referred to B.H.U. Trauma Center for further management and subsequently he died due to injuries sustained by him and the matter was converted under Section 304 I.P.C. However, during investigation, name of Shriram Yadav and Ashok Yadav also came into light but however, the Investigating Officer submitted no charge sheet against them and they were exonerated.

7. During course of trial, an application under Section 319 Cr.P.C. was moved by the informant to summon the present revisionists Shriram Yadav and Ashok Yadav for facing trial under Sections 323, 304 I.P.C. alleging therein that during course of evidence, PW-1 Karishma, informant, PW-2 Smt. Nagina Devi wife of the deceased have categorically stated that the present revisionists Shriram Yadav and Ashok Yadav have also participated in the commission of crime and they are liable for facing the trial alongwith other co-accused persons Ram Dular Yadav and Santosh Yadav. The said application was allowed by the court of Additional Sessions Judge/Special Judge POCSO Act II, Jaunpur vide impugned order dated 28.05.2025.

8. It is submitted by learned counsel for the revisionists that they are innocent and have not committed the alleged offence and they have been falsely implicated in this case. It is further submitted that the impugned order is wholly perverse and against the settled legal principles.

9. It is next urged that all the witnesses of fact, who were interrogated by the Investigating Officer, categorically stated before the I.O. in their statements under Section 161 Cr.P.C. that the revisionists have been falsely implicated in this matter and they have nothing to do with the alleged occurrence. It is also submitted that in the autopsy report of the deceased, cause of death was found coma as a result of head injury. It is further argued that during investigation, when named accused persons Ram Dular Yadav and Santosh Yadav @ Bhotu were held by the police, the murder weapon lathi was retrieved by the police on the basis of confessional statement of the accused Santosh Yadav and not from the possession or on the pointing out of the present revisionists. It is next submitted that even in the statement of the informant Karishma Yadav, there is even no whisper of the fact that both the revisionists were present at the place of occurrence and nothing was stated regarding their participation in the alleged crime and same is the situation in respect of the statement under Section 161 Cr.P.C. given by Smt. Nagina Devi, wife of the deceased to the police. It is further submitted that for the first time, during trial, an application under Section 319 Cr.P.C. was moved by the opposite party no. 2 to summon the revisionists to face trial in the instant matter. PW-1 Karishma and PW-2 Smt. Nagina Devi both in their deposition made before the trial court implicated the present revisionists stating that they made serious assault by lathi, danda and iron rod in commission of the crime alongwith previously named accused persons Santosh Yadav and Ram Dular Yadav. An improvement was made in the statement of PW-1 Karishma when she stated that on receiving information of the occurrence, she went to P.H.C. Rampur alongwith his mother and sister where her father told them that Ram Dular Yadav, Santosh Yadav, Ashok Yadav and Shriram Yadav all four persons made assault upon him together. In the like manner, PW-2 Smt. Nagina Devi also averred the name of the revisionists for taking active participation in the alleged crime and she has also made an improvement when she stated that in the hospital her husband had specifically told that he was beaten by Shriram Yadav, Ashok Yadav, Santosh Yadav and Ram Dular Yadav by lathi, danda, iron rod, kicking and fisting and on the basis of the said statements, the application under Section 319 Cr.P.C. was moved by the informant, which was allowed by the Sessions Court vide impugned order dated 28.05.2025.

10. It is further submitted by learned counsel for the revisionists that the revisionists were not named in the F.I.R. and PW-1 and PW-2 are not the eye witnesses of the occurrence and while recording their testimony before the court, a significant improvement was made by them regarding involvement of the revisionists in the crime by way of referring so called dying declaration made by the deceased. It is next submitted that while passing the impugned order, the learned Sessions Court totally discarded the said significant aspect of the matter and made trust over the statements of PW-1 and PW-2.

11. It is also urged that the deceased in fact made no statement before PW-1 and PW-2 in respect of his injuries and name of the assailants. It is further submitted that none of the witnesses of fact has taken the name of the revisionists and even their presence on the spot was not confirmed by the witnesses of fact.

12. It is further emphasized that PW-1 has deposed that when she went to the hospital to meet her father, he disclosed the name of four accused persons including the revisionists and instructed her to lodge an F.I.R. against them. This issue was raised by the learned counsel for the revisionists that when the informant came to know the name of the four assailants before lodging of the F.I.R., why she did not name the present revisionists duo in the F.I.R. In the same manner, when the wife of the deceased also came to know the name of the present revisionists as assailants from the statement of her husband then why the present revisionists were not named in the F.I.R. It is also submitted that the aforesaid lacuna in the prosecution story and evidence is a relevant fact and a serious dent upon the story set up by the prosecution which falsifies the entire prosecution story. The learned trial court had no reliable evidence against the present revisionists in respect of their involvement in the commission of crime. The learned trial court did not pay any attention at all regarding legal principles prevailing in the matter and only on the basis of evidence of PW-1 and PW-2, which was in fact only an improvement, passed the impugned order.

13. Per contra, learned A.G.A. and learned counsel for the opposite party no. 2 vehemently opposed the instant revision and it has been submitted that two witnesses of fact have been examined before the trial court and both of them have proved the active participation of the present revisionists in the commission of the alleged crime. The medical evidence corroborates the prosecution version. PW-1 is the daughter and PW-2 is the wife of the deceased. When interrogated by the Investigating Officer during investigation, they at that stage, also disclosed the role of the present revisionists in the murder of the deceased. The learned trial court has also expressed its view in clear terms that there is strong evidence against the present revisionists and there are chance of their conviction in the instant case. They are liable to be tried with the other accused persons for the offence under Sections 323 and 304 I.P.C. and the learned trial court committed no mistake in considering the active role of the revisionists in the commission of the alleged crime of murder and in holding that they must be tried with the other accused persons who are already facing trial. There is no infirmity, illegality or perversity in the impugned order warranting interference by this Court and revisions deserved to be dismissed.

14. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully.

15. The law prevailing over the subject has been well explained by the Constitution Bench of Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others, 2014 (85) ACC 313, wherein it was held that under Section 319 Cr.P.C. a person against whom it appears from the evidence that he, though not an accused in the case so far, could be tried together with the accused already facing the trial and in such event by virtue of Section 319 (4) Cr.P.C. the proceedings against such person shall be commenced afresh and it shall be presumed as if he had been an accused when the court took cognizance of the offence upon which the trial was commenced and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by the cross examination. The degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. is in fact much stronger evidence than mere probability of his complicity. Thus, 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. The difference in the degree of satisfaction for summoning the original accused and the subsequent accused is on account of the fact that the trial may have already been commenced against the original accused and it is in the course of such trial that materials are discussed against the newly summoned accused, fresh summoning of the accused will result in delay of the trial, therefore, the decree of satisfaction for summoning the accused (original and subsequent) has to be different.

16. It was further clarified by the Hon'ble Apex Court that: "117.6 A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh."

17. The Hon'be Apex Court in Y. Saraba Reddy Vs. Puthur Rami Reddy and Anr. (2007) 4 Supreme Court Cases 773 has put a caution over the power of the Court with reference to Section 319 Cr.P.C. by making an observation as extracted herein below- "11. Power under Section 319 of the Code can be exercised by the court suo motu or on an application by someone including the accused already before it. If it is satisfied that any person other than the accused has committed an offence he is to be tried together with the accused The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier The word 'evidence' in Section 319 contemplates the evidence of witnesses given in court. Under sub-section (4)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced That would show that by virtue of sub-section (4)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned."

18. The aforesaid settled propositions of law leave no shadow of doubt that on the basis of the evidence before it during trial generally the sessions court is fully empowered and armed with competent jurisdiction over the issue of summoning the additional accused persons to face trial along with accused persons who were already been tried by it.

19. The aforesaid principle of law also echoed in the legal pronouncements of the Hon'ble Apex Court like, Shishupal Singh Vs. State of U.P. and Anr. (2019) 8 Supreme Court Cases 682, Babubhai Bhimabhai Bokiria and another Vs. State of Gujarat and others (2014) 5 SCC 568 (para 8), Sukhpal Singh Khaira Vs. State of Punjab (Criminal Appeal No. 885 of 2019 decided on 05.12.2022), Kallu Nat alias Mayank Kumar Nagar Vs. State of U.P. and Anr 2025 INSC 930 and so on.

20. So far as the factual aspect of the matter is concerned, admittedly, the present revisionists were not named in the F.I.R. and Ram Dular Yadav and Santosh Yadav were the two accused persons who were named in the F.I.R. and charge sheet after conclusion of the investigation, was submitted against both of them. There is no doubt that the Sessions Court is empowered to call a person to face trial as an accused under Section 319 Cr.P.C. on the basis of the evidence recorded before it during course of trial but however, a question may arise that at the time of entertaining an application under Section 319 Cr.P.C. whether the court has to see only the evidence which was recorded before it or it can also take into consideration the material collected by the Investigating Officer during course of investigation.

21. In the case of Hardeep Singh (supra) the said issue was specifically explained in para 117.2 and 117.3:- "Para- 117.2:- Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (i) Inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be pre-trial inquiry. Inquiry u/s 200, 201, 202 Cr.P.C., and u/s 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power u/s 319 Cr.P.C., and also to add an accused whose name has been shown in column 2 of the charge-sheet. Para- 117.3:- In view of the above position the word "evidence" in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial."

22. Following the judicial pronouncement made by Hon'ble Apex Court in Hardeep Singh (supra), the issue in hand was also considered in the case of Brijendra Singh Vs. State of Rajasthan, (2017) 7 SCC 706 wherein the Hon'ble Apex Court pronounced that:- "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."

23. On the basis of the decisions promulgated by the Hon'ble Apex Court, the principle behind the provisions of Section 319 Cr.P.C. emerges out that the court proposes at one hand to see and consider the evidence recorded during trial but at the same time, the courts are duty bound to consider the material collected by the I.O. during investigation subject to limitation that such material can be used for corroboration of the evidence recorded in the court after the trial commences.

24. Now if the abovementioned legal principles are translated into the facts and circumstances of the case in hand, it transpires from perusal of the record that in the F.I.R itself Ram Dular Yadav and Santosh Yadav were shown as named accused, whereas no eye witness of the occurrence has been disclosed therein. Significantly there is not even a whisper in the F.I.R. as to some other assailant/assailants was also present at the place of occurrence who also participated in the occurrence. Even the informant in the F.I.R. nowhere claims that she had been the eye witness of the incident, hence a question arises as to how she came to know that the named accused persons made assault over her father which remains unanswered. The F.I.R. contains the facts relating to the date, time, place of occurrence and assault made upon the deceased by two named accused persons with the aid of lathi and danda causing serious injuries to him and he was brought to District Hospital, Jaunpur. During the course of investigation, no eye witness of the incident was traced by the Investigating Officer. False implication of the revisionists was also explained by the villagers when they were interrogated by the Investigating Officer. Even Smt. Nagina Devi, wife of the deceased, although mentions the name of the present revisionists as assailants in her statement made before the I.O. but how she came to know this, has not been disclosed by her in her statement under Section 161 Cr.P.C. The informant Karishma Yadav while interrogated by the Investigating Officer has named the accused Ram Dular Yadav and Santosh Yadav only as assailants and she nowhere disclosed the name of the present revisionists as participants in the crime and their presence at the place of the occurrence but when she appeared before the court as PW-1 she deposed that Shriram Yadav and Ashok Yadav and two named accused persons together attacked over her father with the aid of lathi, danda and iron rod and inflicted serious injuries to him. Thus an improvement was made in her statement which was not found in the F.I.R. or in her statement under Section 161 Cr.P.C. that while her father (now deceased) was being taken to the hospital he told her that he has been assaulted by Santosh Yadav, Ram Dular Yadav, Shriram Yadav and Ashok Yadav. It was a new story which does not find corroboration by other oral statements of the witnesses. In the like manner, PW-2 wife of the deceased in her deposition has stated that when she alongwith her daughters Radhika and Karishma (PW-1) reached the hospital, her husband disclosed the name of Shriram Yadav, Santosh Yadav, Ram Dulkar Yadav and Ashok Yadav as assailants and asked her daughter Karishma to lodge the F.I.R. at the police station against all the four assailants. Although further in her evidence she has admitted that she never saw any person making assault upon her husband Shiv Shanker, the deceased.

25. It is significant to note here that although the court has ample power to pass an order under Section 319 Cr.P.C. on the basis of testimony of the witnesses examined before the court and their statements made in examination-in-chief alone may be taken into consideration for the said purpose and it is never necessary that the witnesses be cross examined prior to invoking the power under Section 319 Cr.P.C. by the court but in the instant case, the impugned order was passed on 28.05.2025 whereas the evidence of PW-1 and PW-2 was completed before passing the impugned order. Hence, the statements made by PW-1 and PW-2 in their cross-examination may be taken into consideration for the sake of disposal of the application under Section 319 Cr.P.C. which is shaky and full of inconsistencies.

26. Learned counsel for the revisionists strongly submits that if the deceased had clearly named four assailants and it included the names of the present revisionists to the witnesses Smt. Nagina Devi and Karishma, the informant, why the F.I.R. was lodged only against two accused persons Ram Dular Yadav and Santosh Yadav. It is vehemently submitted that the aforesaid lacuna strongly hits at the very root of the prosecution case and clearly indicates the fact that the present revisionists have been falsely implicated in this matter on the basis of false evidence led by the PW-1 Karishma and PW-2 Smt. Nagina Devi.

27. Learned A.G.A. and learned counsel for the opposite party no. 2 were unable to meet out the said argument. This Court has also taken note of the aforesaid argument. Since the aforesaid witnesses state that after disclosing the name of the assailants, the deceased himself directed her daughter Karishma to go to the police station to lodge the F.I.R., the informant was fully aware of the name and number of all the four assailants even then to the utter surprise of this Court she did not name the present revisionists in the F.I.R. and specifically named only two accused persons as the assailants excluding the present revisionists.

28. Hence, keeping in view the entire facts and circumstances of the case it is held that at this stage the prosecution has not produced proper and sufficient evidence on the basis of which the present revisionists could be called by the trial court to face the trial in the instant case as co-accused, rather it ought to have waited for some other cogent evidence of fact which could easily justify the summoning of the present revisionists to face trial in the instant case. Therefore, the application under Section 319 Cr.P.C. in the peculiar facts and circumstances of the case may be termed as pre-mature application moved before the trial court and at this stage on the basis of evidence on record this Court finds no substance in the submissions made by the learned A.G.A. and learned counsel for the opposite party no. 2. Hence, the impugned order is liable to be set aside. However, it is made clear that if at any subsequent stage of trial further cogent evidence is produced by the prosecution before the trial court, the prosecution may move another application under Section 319 Cr.P.C. praying therein to summon the additional accused to face trial in the case in hand alongwith other accused persons already facing trial before the trial court.

29. With these observations, both the criminal revisions at this stage are allowed and the order dated 28.05.2025 passed by the Additional Sessions Judge/Special Judge POCSO Act II, Jaunpur in Session Trial No. 179 of 2024 (State Vs. Santosh Kumar Yadav @ Bhotu and others), arising out of Case Crime No. 08 of 2024, under Sections 323, 304 I.P.C., Police Station Rampur, District Jaunpur is set-aside. The trial court is free to proceed with the matter for recording of further evidence and other legal proceedings.

30. Office is directed to send a copy of this order to the court concerned for necessary compliance. Order Date :- 11.8.2025 Rmk. RAM MURTI KUSHWAHA High Court of Judicature at Allahabad

Revisionist :- Shriram Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Swati Agrawal Srivastava Counsel for Opposite Party :- Ranjeet Yadav,G.A. Connected with Case :- CRIMINAL REVISION No. - 3602 of 2025 Revisionist :- Ashok Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Swati Agrawal Srivastava Counsel for Opposite Party :- G.A.,Ranjeet Yadav Hon'ble Nalin Kumar Srivastava,J.

1. Since these criminal revisions arise out of same impugned order, they have been heard together and are being decided by a common order.

2. Heard learned counsel for the revisionists, learned A.G.A. for the State as well as learned counsel for the opposite party no. 2 and perused the record.

3. Admit.

4. The present criminal revisions have been preferred by the revisionists - Shriram and Ashok against the order dated 28.05.2025 passed by the Additional Sessions Judge/Special Judge POCSO Act II, Jaunpur in Session Trial No. 179 of 2024 (State Vs. Santosh Kumar Yadav @ Bhotu and others), arising out of Case Crime No. 08 of 2024, under Sections 323, 304 I.P.C., Police Station Rampur, District Jaunpur whereby the application under Section 319 Cr.P.C. moved by the opposite party no. 2 was allowed and the revisionists were summoned under Sections 323, 304 I.P.C. to face trial.

5. An F.I.R. was lodged at Police Station Rampur, District Jaunpur by the informant Karishma Yadav alleging therein that on 21.01.2024 at about 3.00 P.M. when her father was going for filling the gas cylinder, he was bitterly assaulted by Ram Dular Yadav and Santosh Yadav with lathi and danda who sustained serious injuries and was taken to the District Hospital, Jaunpur. The F.I.R. was lodged on the same day at 16.55 P.M. However, during course of investigation, injured Shiv Shanker Yadav died and matter was converted under Section 304 I.P.C. After investigation, charge sheet was submitted by the police against named accused persons Ram Dular Yadav and Santosh Yadav under Sections 323, 304 I.P.C.

6. It is to be noted that the injured Shiv Shanker was referred to B.H.U. Trauma Center for further management and subsequently he died due to injuries sustained by him and the matter was converted under Section 304 I.P.C. However, during investigation, name of Shriram Yadav and Ashok Yadav also came into light but however, the Investigating Officer submitted no charge sheet against them and they were exonerated.

7. During course of trial, an application under Section 319 Cr.P.C. was moved by the informant to summon the present revisionists Shriram Yadav and Ashok Yadav for facing trial under Sections 323, 304 I.P.C. alleging therein that during course of evidence, PW-1 Karishma, informant, PW-2 Smt. Nagina Devi wife of the deceased have categorically stated that the present revisionists Shriram Yadav and Ashok Yadav have also participated in the commission of crime and they are liable for facing the trial alongwith other co-accused persons Ram Dular Yadav and Santosh Yadav. The said application was allowed by the court of Additional Sessions Judge/Special Judge POCSO Act II, Jaunpur vide impugned order dated 28.05.2025.

8. It is submitted by learned counsel for the revisionists that they are innocent and have not committed the alleged offence and they have been falsely implicated in this case. It is further submitted that the impugned order is wholly perverse and against the settled legal principles.

9. It is next urged that all the witnesses of fact, who were interrogated by the Investigating Officer, categorically stated before the I.O. in their statements under Section 161 Cr.P.C. that the revisionists have been falsely implicated in this matter and they have nothing to do with the alleged occurrence. It is also submitted that in the autopsy report of the deceased, cause of death was found coma as a result of head injury. It is further argued that during investigation, when named accused persons Ram Dular Yadav and Santosh Yadav @ Bhotu were held by the police, the murder weapon lathi was retrieved by the police on the basis of confessional statement of the accused Santosh Yadav and not from the possession or on the pointing out of the present revisionists. It is next submitted that even in the statement of the informant Karishma Yadav, there is even no whisper of the fact that both the revisionists were present at the place of occurrence and nothing was stated regarding their participation in the alleged crime and same is the situation in respect of the statement under Section 161 Cr.P.C. given by Smt. Nagina Devi, wife of the deceased to the police. It is further submitted that for the first time, during trial, an application under Section 319 Cr.P.C. was moved by the opposite party no. 2 to summon the revisionists to face trial in the instant matter. PW-1 Karishma and PW-2 Smt. Nagina Devi both in their deposition made before the trial court implicated the present revisionists stating that they made serious assault by lathi, danda and iron rod in commission of the crime alongwith previously named accused persons Santosh Yadav and Ram Dular Yadav. An improvement was made in the statement of PW-1 Karishma when she stated that on receiving information of the occurrence, she went to P.H.C. Rampur alongwith his mother and sister where her father told them that Ram Dular Yadav, Santosh Yadav, Ashok Yadav and Shriram Yadav all four persons made assault upon him together. In the like manner, PW-2 Smt. Nagina Devi also averred the name of the revisionists for taking active participation in the alleged crime and she has also made an improvement when she stated that in the hospital her husband had specifically told that he was beaten by Shriram Yadav, Ashok Yadav, Santosh Yadav and Ram Dular Yadav by lathi, danda, iron rod, kicking and fisting and on the basis of the said statements, the application under Section 319 Cr.P.C. was moved by the informant, which was allowed by the Sessions Court vide impugned order dated 28.05.2025.

10. It is further submitted by learned counsel for the revisionists that the revisionists were not named in the F.I.R. and PW-1 and PW-2 are not the eye witnesses of the occurrence and while recording their testimony before the court, a significant improvement was made by them regarding involvement of the revisionists in the crime by way of referring so called dying declaration made by the deceased. It is next submitted that while passing the impugned order, the learned Sessions Court totally discarded the said significant aspect of the matter and made trust over the statements of PW-1 and PW-2.

11. It is also urged that the deceased in fact made no statement before PW-1 and PW-2 in respect of his injuries and name of the assailants. It is further submitted that none of the witnesses of fact has taken the name of the revisionists and even their presence on the spot was not confirmed by the witnesses of fact.

12. It is further emphasized that PW-1 has deposed that when she went to the hospital to meet her father, he disclosed the name of four accused persons including the revisionists and instructed her to lodge an F.I.R. against them. This issue was raised by the learned counsel for the revisionists that when the informant came to know the name of the four assailants before lodging of the F.I.R., why she did not name the present revisionists duo in the F.I.R. In the same manner, when the wife of the deceased also came to know the name of the present revisionists as assailants from the statement of her husband then why the present revisionists were not named in the F.I.R. It is also submitted that the aforesaid lacuna in the prosecution story and evidence is a relevant fact and a serious dent upon the story set up by the prosecution which falsifies the entire prosecution story. The learned trial court had no reliable evidence against the present revisionists in respect of their involvement in the commission of crime. The learned trial court did not pay any attention at all regarding legal principles prevailing in the matter and only on the basis of evidence of PW-1 and PW-2, which was in fact only an improvement, passed the impugned order.

13. Per contra, learned A.G.A. and learned counsel for the opposite party no. 2 vehemently opposed the instant revision and it has been submitted that two witnesses of fact have been examined before the trial court and both of them have proved the active participation of the present revisionists in the commission of the alleged crime. The medical evidence corroborates the prosecution version. PW-1 is the daughter and PW-2 is the wife of the deceased. When interrogated by the Investigating Officer during investigation, they at that stage, also disclosed the role of the present revisionists in the murder of the deceased. The learned trial court has also expressed its view in clear terms that there is strong evidence against the present revisionists and there are chance of their conviction in the instant case. They are liable to be tried with the other accused persons for the offence under Sections 323 and 304 I.P.C. and the learned trial court committed no mistake in considering the active role of the revisionists in the commission of the alleged crime of murder and in holding that they must be tried with the other accused persons who are already facing trial. There is no infirmity, illegality or perversity in the impugned order warranting interference by this Court and revisions deserved to be dismissed.

14. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully.

15. The law prevailing over the subject has been well explained by the Constitution Bench of Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab and others, 2014 (85) ACC 313, wherein it was held that under Section 319 Cr.P.C. a person against whom it appears from the evidence that he, though not an accused in the case so far, could be tried together with the accused already facing the trial and in such event by virtue of Section 319 (4) Cr.P.C. the proceedings against such person shall be commenced afresh and it shall be presumed as if he had been an accused when the court took cognizance of the offence upon which the trial was commenced and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by the cross examination. The degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. is in fact much stronger evidence than mere probability of his complicity. Thus, 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. The difference in the degree of satisfaction for summoning the original accused and the subsequent accused is on account of the fact that the trial may have already been commenced against the original accused and it is in the course of such trial that materials are discussed against the newly summoned accused, fresh summoning of the accused will result in delay of the trial, therefore, the decree of satisfaction for summoning the accused (original and subsequent) has to be different.

16. It was further clarified by the Hon'ble Apex Court that: "117.6 A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 CrPC provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, insofar as an accused who has been discharged is concerned the requirement of Sections 300 and 398 CrPC has to be complied with before he can be summoned afresh."

17. The Hon'be Apex Court in Y. Saraba Reddy Vs. Puthur Rami Reddy and Anr. (2007) 4 Supreme Court Cases 773 has put a caution over the power of the Court with reference to Section 319 Cr.P.C. by making an observation as extracted herein below- "11. Power under Section 319 of the Code can be exercised by the court suo motu or on an application by someone including the accused already before it. If it is satisfied that any person other than the accused has committed an offence he is to be tried together with the accused The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier The word 'evidence' in Section 319 contemplates the evidence of witnesses given in court. Under sub-section (4)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced That would show that by virtue of sub-section (4)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned."

18. The aforesaid settled propositions of law leave no shadow of doubt that on the basis of the evidence before it during trial generally the sessions court is fully empowered and armed with competent jurisdiction over the issue of summoning the additional accused persons to face trial along with accused persons who were already been tried by it.

19. The aforesaid principle of law also echoed in the legal pronouncements of the Hon'ble Apex Court like, Shishupal Singh Vs. State of U.P. and Anr. (2019) 8 Supreme Court Cases 682, Babubhai Bhimabhai Bokiria and another Vs. State of Gujarat and others (2014) 5 SCC 568 (para 8), Sukhpal Singh Khaira Vs. State of Punjab (Criminal Appeal No. 885 of 2019 decided on 05.12.2022), Kallu Nat alias Mayank Kumar Nagar Vs. State of U.P. and Anr 2025 INSC 930 and so on.

20. So far as the factual aspect of the matter is concerned, admittedly, the present revisionists were not named in the F.I.R. and Ram Dular Yadav and Santosh Yadav were the two accused persons who were named in the F.I.R. and charge sheet after conclusion of the investigation, was submitted against both of them. There is no doubt that the Sessions Court is empowered to call a person to face trial as an accused under Section 319 Cr.P.C. on the basis of the evidence recorded before it during course of trial but however, a question may arise that at the time of entertaining an application under Section 319 Cr.P.C. whether the court has to see only the evidence which was recorded before it or it can also take into consideration the material collected by the Investigating Officer during course of investigation.

21. In the case of Hardeep Singh (supra) the said issue was specifically explained in para 117.2 and 117.3:- "Para- 117.2:- Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (i) Inquiry (2) trial. As a trial commences after framing of charge, an inquiry can only be understood to be pre-trial inquiry. Inquiry u/s 200, 201, 202 Cr.P.C., and u/s 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. materials coming before the court in course of such inquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power u/s 319 Cr.P.C., and also to add an accused whose name has been shown in column 2 of the charge-sheet. Para- 117.3:- In view of the above position the word "evidence" in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial."

22. Following the judicial pronouncement made by Hon'ble Apex Court in Hardeep Singh (supra), the issue in hand was also considered in the case of Brijendra Singh Vs. State of Rajasthan, (2017) 7 SCC 706 wherein the Hon'ble Apex Court pronounced that:- "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."

23. On the basis of the decisions promulgated by the Hon'ble Apex Court, the principle behind the provisions of Section 319 Cr.P.C. emerges out that the court proposes at one hand to see and consider the evidence recorded during trial but at the same time, the courts are duty bound to consider the material collected by the I.O. during investigation subject to limitation that such material can be used for corroboration of the evidence recorded in the court after the trial commences.

24. Now if the abovementioned legal principles are translated into the facts and circumstances of the case in hand, it transpires from perusal of the record that in the F.I.R itself Ram Dular Yadav and Santosh Yadav were shown as named accused, whereas no eye witness of the occurrence has been disclosed therein. Significantly there is not even a whisper in the F.I.R. as to some other assailant/assailants was also present at the place of occurrence who also participated in the occurrence. Even the informant in the F.I.R. nowhere claims that she had been the eye witness of the incident, hence a question arises as to how she came to know that the named accused persons made assault over her father which remains unanswered. The F.I.R. contains the facts relating to the date, time, place of occurrence and assault made upon the deceased by two named accused persons with the aid of lathi and danda causing serious injuries to him and he was brought to District Hospital, Jaunpur. During the course of investigation, no eye witness of the incident was traced by the Investigating Officer. False implication of the revisionists was also explained by the villagers when they were interrogated by the Investigating Officer. Even Smt. Nagina Devi, wife of the deceased, although mentions the name of the present revisionists as assailants in her statement made before the I.O. but how she came to know this, has not been disclosed by her in her statement under Section 161 Cr.P.C. The informant Karishma Yadav while interrogated by the Investigating Officer has named the accused Ram Dular Yadav and Santosh Yadav only as assailants and she nowhere disclosed the name of the present revisionists as participants in the crime and their presence at the place of the occurrence but when she appeared before the court as PW-1 she deposed that Shriram Yadav and Ashok Yadav and two named accused persons together attacked over her father with the aid of lathi, danda and iron rod and inflicted serious injuries to him. Thus an improvement was made in her statement which was not found in the F.I.R. or in her statement under Section 161 Cr.P.C. that while her father (now deceased) was being taken to the hospital he told her that he has been assaulted by Santosh Yadav, Ram Dular Yadav, Shriram Yadav and Ashok Yadav. It was a new story which does not find corroboration by other oral statements of the witnesses. In the like manner, PW-2 wife of the deceased in her deposition has stated that when she alongwith her daughters Radhika and Karishma (PW-1) reached the hospital, her husband disclosed the name of Shriram Yadav, Santosh Yadav, Ram Dulkar Yadav and Ashok Yadav as assailants and asked her daughter Karishma to lodge the F.I.R. at the police station against all the four assailants. Although further in her evidence she has admitted that she never saw any person making assault upon her husband Shiv Shanker, the deceased.

25. It is significant to note here that although the court has ample power to pass an order under Section 319 Cr.P.C. on the basis of testimony of the witnesses examined before the court and their statements made in examination-in-chief alone may be taken into consideration for the said purpose and it is never necessary that the witnesses be cross examined prior to invoking the power under Section 319 Cr.P.C. by the court but in the instant case, the impugned order was passed on 28.05.2025 whereas the evidence of PW-1 and PW-2 was completed before passing the impugned order. Hence, the statements made by PW-1 and PW-2 in their cross-examination may be taken into consideration for the sake of disposal of the application under Section 319 Cr.P.C. which is shaky and full of inconsistencies.

26. Learned counsel for the revisionists strongly submits that if the deceased had clearly named four assailants and it included the names of the present revisionists to the witnesses Smt. Nagina Devi and Karishma, the informant, why the F.I.R. was lodged only against two accused persons Ram Dular Yadav and Santosh Yadav. It is vehemently submitted that the aforesaid lacuna strongly hits at the very root of the prosecution case and clearly indicates the fact that the present revisionists have been falsely implicated in this matter on the basis of false evidence led by the PW-1 Karishma and PW-2 Smt. Nagina Devi.

27. Learned A.G.A. and learned counsel for the opposite party no. 2 were unable to meet out the said argument. This Court has also taken note of the aforesaid argument. Since the aforesaid witnesses state that after disclosing the name of the assailants, the deceased himself directed her daughter Karishma to go to the police station to lodge the F.I.R., the informant was fully aware of the name and number of all the four assailants even then to the utter surprise of this Court she did not name the present revisionists in the F.I.R. and specifically named only two accused persons as the assailants excluding the present revisionists.

28. Hence, keeping in view the entire facts and circumstances of the case it is held that at this stage the prosecution has not produced proper and sufficient evidence on the basis of which the present revisionists could be called by the trial court to face the trial in the instant case as co-accused, rather it ought to have waited for some other cogent evidence of fact which could easily justify the summoning of the present revisionists to face trial in the instant case. Therefore, the application under Section 319 Cr.P.C. in the peculiar facts and circumstances of the case may be termed as pre-mature application moved before the trial court and at this stage on the basis of evidence on record this Court finds no substance in the submissions made by the learned A.G.A. and learned counsel for the opposite party no. 2. Hence, the impugned order is liable to be set aside. However, it is made clear that if at any subsequent stage of trial further cogent evidence is produced by the prosecution before the trial court, the prosecution may move another application under Section 319 Cr.P.C. praying therein to summon the additional accused to face trial in the case in hand alongwith other accused persons already facing trial before the trial court.

29. With these observations, both the criminal revisions at this stage are allowed and the order dated 28.05.2025 passed by the Additional Sessions Judge/Special Judge POCSO Act II, Jaunpur in Session Trial No. 179 of 2024 (State Vs. Santosh Kumar Yadav @ Bhotu and others), arising out of Case Crime No. 08 of 2024, under Sections 323, 304 I.P.C., Police Station Rampur, District Jaunpur is set-aside. The trial court is free to proceed with the matter for recording of further evidence and other legal proceedings.

30. Office is directed to send a copy of this order to the court concerned for necessary compliance. Order Date :- 11.8.2025 Rmk. RAM MURTI KUSHWAHA High Court of Judicature at Allahabad