At this point, a decision of the Hon'ble Supreme Court in Brijendra Singh Others v. State of Rajasthan

evidence started before the trial court and the evidence of P.W.1 Israwati Devi, the informant and P.W.2 Ghanshyam Mishra, who were named as witness of fact, was recorded before the trial court. The learned trial court after considering the entire evidence on record allowed the application under section 319 Cr.P.C. and the present revisionist was summoned to face trial under section 302 IPC vide impugned order dated 10.09.2024.

6. It is further urged that although the revisionist was named in the F.I.R. but the matter was investigated twice by the Investigating Officer and on both the occasions the police found absolutely no evidence against the revisionist.

7. It is also submitted that only on the basis of evidence of P.W.1 and P.W.2, the present revisionist has been summoned to face trial. It is further urged that P.W.1 Israwati Devi, the informant in her deposition has stated that on account of some money dispute, the accused Dinesh Chauhan committed murder of the deceased Lavhar Chauhan, the husband of the informant by throttling. It is also submitted that the informant is not the eyewitness of this case and in her testimony she nowhere claims to give ocular evidence of the occurrence. On the other hand, P.W.2 Ghanshyam Mishra has been produced as the eyewitness of this case but however in his examination-in-chief he has specifically stated that at the time of occurrence he was sleeping in his house and when he reached the house of the deceased, Dr. R.C. Chaubey was examining him and declared him dead but further in his cross-examination he has deposed the ocular version of the occurrence and stated that on account of money dispute the revisionist committed murder of the deceased by throttling and he had seen the entire occurrence.

8. It is further submitted that the learned trial court while passing the impugned order ignored the statement of P.W.2 made in his examination-in-chief and the material contradictions occurred in his entire deposition. It is further submitted that even in the charge- sheet submitted by the Investigating Officer the name of P.W.2 Ghanshyam Mishra has not been shown as an eyewitness of the occurrence rather he has been named only as a witness who corroborates the prosecution case. Hence, the learned trial court on the basis of shaky and inconsistent oral testimony of the witnesses which is full of material contradictions passed an arbitrary and illegal order to summon the revisionist to face trial under section 302 IPC.

9. Per contra, learned A.G.A. and learned counsel for the opposite party no.2 / informant vehemently opposed the present revision and it has been submitted that the present revisionist was named in the F.I.R. of this case and the witnesses were won over by the him during investigation. It is further submitted that although P.W.1 is not an eyewitness of the occurrence but she has corroborated the F.I.R. version by corroborating the factum of money dispute between the revisionist and the deceased, which was the motive for committing the crime. It is further submitted that P.W.2 is the eyewitness and in specific terms he has given an eyewitness account of the incident alleging therein that the murder of the deceased was committed by Dinesh Chauhan, the present revisionist by throttling. It is also submitted that while deciding the application under section 319 Cr.P.C., the learned trial court must take into consideration the entire testimony of all the witnesses recorded before the court as well as the material collected by the Investigating Officer during investigation. It is further submitted that the statement of P.W.1 and P.W.2 fully corroborates the F.I.R. version and on being satisfied that there is sufficient evidence to summon the present revisionist to face trial under section 302 IPC, the trial court passed the impugned summoning order against the revisionist and by passing the same, the trial court has not committed any irregularity, illegality or impropriety.

10. The Court while invoking its power under Section 319 Cr.P.C. with regard to the accused, who is not named in the F.I.R. or if named, no charge-sheet was submitted against him or even he has been discharged by the Court is recognized under Section 319 Cr.P.C. At the stage of inquiry when the Court uses its power for the aforesaid purpose, it may take into consideration the materials collected by the Investigating Officer during investigation or even the statement recorded under sections 200 and 202 Cr.P.C., as the case may be, it acts at a pre-congnizance stage of the matter before filing the charge-sheet by the police. However, after submission of the charge-sheet and after framing of charges when the trial commences and evidence of witnesses are recorded, the trial court may pass an order to summon a person as co-accused alongwith the accused persons who are already facing trial under Section 319 Cr.P.C. and at this stage no extraneous material are to be looked into or considered by the trial court except the deposition of the witnesses recorded before the Court. At this point, a decision of the Hon'ble Supreme Court in Brijendra Singh & Others Vs. State of Rajasthan, 2017 (7) SCC 706 particularly, paragraph 15 of the said pronouncement is relevant to quote here, which is extracted as below. "15. 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 161 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."

11. However, in the authority judgment of the Full Bench in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92, the Hon'ble Supreme Court held that - "117.2. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 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 enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet. "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."

12. It is pertinent to mention here that the Constitution Bench of Hon'ble Supreme Court in the case of Hardeep Singh (supra) dealt with the issue which was framed as question no.3 like this - "Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused."

13. The dictum of law promulgated by the Hon'ble Supreme Court in the judicial pronouncement may be summarized as mentioned hereinafter and it can be safely held that the Court during trial is justified to look into the materials collected during investigation by the Investigating Officer but however such materials and evidence can be used only for corroboration of the evidence recorded in the Court after the trial commences for the exercise of power under section 319 Cr.P.C.

14. So far as the instant matter is concerned, a perusal of the impugned order draws the attention of this Court to the effect that revisionist Dinesh Chauhan was named in the F.I.R. but however his name was exonerated during investigation and no charge-sheet was submitted against him. The exoneration of Dinesh Chauhan, the present revisionist by the Investigating Officer during investigation was protested by the informant by way of filing a protest petition before the court but before disposal of the said protest petition, the said accused was summoned under Section 319 Cr.P.C. by the court itself. It is pertinent to mention here that the impugned order under Section 319 Cr.P.C. was passed after recording of the evidence of P.W.1 Israwati Devi, the wife of the deceased and P.W.2. Ghanshyam Mishra, neighbourer of the deceased's shop, who are said to be the witnesses of fact.

15. The evidence of P.W.1 Israwati Devi, if taken into consideration, nowhere points out that she is an eyewitness of the incident, although she deposes against the present revisionist. Her evidence does not clarify as to how she came to know the complicity of the revisionist in the commission of murder of her husband. Hence, she is not an ocular witness of the incident.

16. The learned trial court has further relied upon the evidence of P.W.2 Ghanshyam Mishra, who in his cross-examination, narrating the factual story, states that at the time of incident the deceased Lavhar Chauhan was demanding his money which was due upon the revisionist and when an altercation took place between the two, the revisionist Dinesh Chauhan committed the murder of the deceased by throttling and he had seen the occurrence. The attention of the Court is drawn towards the statement of P.W.2 which was deposed by him in his examination-in-chief. P.W.2, in his examination-in-chief, has made a specific statement that at the time of incident he was sleeping in his house and when he was awakened by his wife, he reached the house of the deceased where the doctor was examining him and declared his death. The statement deposed by P.W.2 in the cross-examination is totally contrary to that which was deposed by him in his examination-in- chief before the court.

17. Now the situation which comes before the Court is that out of two witnesses, one is not the eyewitness of the incident and the second one himself makes his deposition unworthy of credit. His statements are inconsistent and are having substantial contradictions and mark a notable and serious dent upon the truthfulness of the prosecution story.

18. It is a trite law, particularly after the pronouncement of the judgment of the Hon'ble Supreme Court in Hardeep Singh (supra) case that an effective order under Section 319 Cr.P.C. may very well be passed by the trial court relying only on the statement made by a witness in his examination-in-chief and there is no need to wait for the cross-examination of such witness which makes the prosecution easy to move an application under Section 319 Cr.P.C. and to force the court to rely upon it.

19. The matter is different in the circumstances of the instant case. At the time of passing the impugned order implicating the revisionist Dinesh Chauhan as co-accused in this matter, there was no reliable evidence before the trial court. It is clarified by the Hon'ble Supreme Court in Hardeep Singh (supra) case that the evidence collected and found during investigation or inquiry under section 200 and 202 Cr.P.C. may be seen at the stage of passing the order under Section 319 Cr.P.C. but however such materials and evidence can be used only for the corroboration of the evidence recorded in the court after commencement of trial to invoke its power under Section 319 Cr.P.C. The Investigating Officer has recorded the statement of several witnesses in the instant case wherein a denial to the prosecution story may be easily found.

20. In the statement under section 161 Cr.P.C. the informant / the wife of the deceased Israwati Devi admits that she was not an eyewitness of the incident and the complicity of the present revisionist was disclosed by Uma Devi and Chandrabali to her and at the time of occurrence she was not present. Hence, her statement is only a hearsay evidence which could not be relied upon by the trial court. Although some improvement was made by the informant in her subsequent statement to the Investigating Officer wherein she claims to be an eyewitness of the occurrence but it is certainly an afterthought which makes her subsequent statement unreliable.

21. In the same manner, P.W.2 Ghanshyam Mishra although in his examination-in-chief claims that he had made his statement to the Investigating Officer regarding the guilt of the present revisionist but his entire evidence, if taken in totality, keeps him in the category of unreliable and inconsistent witness.

22. Hence, there was no reliable material on record before the learned trial court to pass an order under Section 319 Cr.P.C. on the basis of statement of P.W.1 and P.W.2 and the said statements do not corroborate the prosecution story in the right direction.

23. In the aforesaid circumstances, the trial court ought to have waited for some other reliable ocular evidence of the matter. P.W.1 Israwati Devi has deposed before the court that the occurrence was seen by Mahesh Chauhan, Ghanshyam Mishra, Chhotey Mishra and her son Vikas Chauhan also. Out of the said witnesses, the evidence of Ghanshyam Mishra, the alleged eyewitness, has been discussed earlier. The Investigating Officer has interrogated some of the witnesses but however the statement of Vikas Chauhan has not been recorded by the Investigating Officer. Although in the charge-sheet the said Vikas Chauhan is shown as a witness of inquest proceedings but however he ought to have been interrogated by the Investigating Officer. As P.W.1 claims the said Vikas Chauhan, her son to be the ocular witness of the incident and in the same manner the evidence of Chhotey Mishra and Mahesh Chauhan who were also named as eyewitnesses of the incident by P.W.1, the informant, should also have been recorded by the Investigating Officer, as their name is found in the charge-sheet as witnesses. Hence, it appears that the learned trial court in haste passed the order under Section 319 Cr.P.C. without procuring the relevant witnesses to be examined before it on oath. At the time of passing the impugned order the learned trial court besides P.W.1 and P.W.2 should have to wait for the aforesaid witnesses to be examined for the simple reason that the order under Section 319 Cr.P.C. should never be passed by the trial court.

24. Now it is trite law particularly after the judgment of Hon'ble Supreme Court passed in Hardeep Singh (supra) case that since the Court exercises discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at a satisfaction for the role played by the proposed accused and 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.

25. Hon'ble Supreme Court on this issue in Sarabjit Singh & Anr. Vs. State of Punjab & Anr., AIR 2009 SC 2792 while explaining the scope of Section 319 Cr.P.C. observed like this - "….For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned……Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied."

26. On the basis of aforesaid discussion, in the peculiar facts and circumstances of the case, this Court is of the view that the impugned order is not sustainable at this stage of the matter. After recording the evidence, as indicated above, the trial court, if another application under Section 319 Cr.P.C. is moved before it, may consider the new and additional evidence of record and pass an order in accordance with law. In this way, the present criminal revision deserves to be allowed and the impugned order is liable to be set-aside.

27. Revision is allowed. The impugned order dated 10.09.2024 passed by Addl. District & Sessions Judge, Court No.1, Kushi Nagar at Padrauna in S.T. No.366 of 2022 (State Vs. Chandrabali Chauhan) arising out of Case Crime No.309 of 2021 under section 302 IPC, Police Station Tarya Sujan, District Kushinagar is set- aside.

28. Copy of this order be sent to the court concerned for compliance and necessary action. Order Date :- 5.8.2025 SANDEEP SHARMA High Court of Judicature at Allahabad

evidence started before the trial court and the evidence of P.W.1 Israwati Devi, the informant and P.W.2 Ghanshyam Mishra, who were named as witness of fact, was recorded before the trial court. The learned trial court after considering the entire evidence on record allowed the application under section 319 Cr.P.C. and the present revisionist was summoned to face trial under section 302 IPC vide impugned order dated 10.09.2024.

6. It is further urged that although the revisionist was named in the F.I.R. but the matter was investigated twice by the Investigating Officer and on both the occasions the police found absolutely no evidence against the revisionist.

7. It is also submitted that only on the basis of evidence of P.W.1 and P.W.2, the present revisionist has been summoned to face trial. It is further urged that P.W.1 Israwati Devi, the informant in her deposition has stated that on account of some money dispute, the accused Dinesh Chauhan committed murder of the deceased Lavhar Chauhan, the husband of the informant by throttling. It is also submitted that the informant is not the eyewitness of this case and in her testimony she nowhere claims to give ocular evidence of the occurrence. On the other hand, P.W.2 Ghanshyam Mishra has been produced as the eyewitness of this case but however in his examination-in-chief he has specifically stated that at the time of occurrence he was sleeping in his house and when he reached the house of the deceased, Dr. R.C. Chaubey was examining him and declared him dead but further in his cross-examination he has deposed the ocular version of the occurrence and stated that on account of money dispute the revisionist committed murder of the deceased by throttling and he had seen the entire occurrence.

8. It is further submitted that the learned trial court while passing the impugned order ignored the statement of P.W.2 made in his examination-in-chief and the material contradictions occurred in his entire deposition. It is further submitted that even in the charge- sheet submitted by the Investigating Officer the name of P.W.2 Ghanshyam Mishra has not been shown as an eyewitness of the occurrence rather he has been named only as a witness who corroborates the prosecution case. Hence, the learned trial court on the basis of shaky and inconsistent oral testimony of the witnesses which is full of material contradictions passed an arbitrary and illegal order to summon the revisionist to face trial under section 302 IPC.

9. Per contra, learned A.G.A. and learned counsel for the opposite party no.2 / informant vehemently opposed the present revision and it has been submitted that the present revisionist was named in the F.I.R. of this case and the witnesses were won over by the him during investigation. It is further submitted that although P.W.1 is not an eyewitness of the occurrence but she has corroborated the F.I.R. version by corroborating the factum of money dispute between the revisionist and the deceased, which was the motive for committing the crime. It is further submitted that P.W.2 is the eyewitness and in specific terms he has given an eyewitness account of the incident alleging therein that the murder of the deceased was committed by Dinesh Chauhan, the present revisionist by throttling. It is also submitted that while deciding the application under section 319 Cr.P.C., the learned trial court must take into consideration the entire testimony of all the witnesses recorded before the court as well as the material collected by the Investigating Officer during investigation. It is further submitted that the statement of P.W.1 and P.W.2 fully corroborates the F.I.R. version and on being satisfied that there is sufficient evidence to summon the present revisionist to face trial under section 302 IPC, the trial court passed the impugned summoning order against the revisionist and by passing the same, the trial court has not committed any irregularity, illegality or impropriety.

10. The Court while invoking its power under Section 319 Cr.P.C. with regard to the accused, who is not named in the F.I.R. or if named, no charge-sheet was submitted against him or even he has been discharged by the Court is recognized under Section 319 Cr.P.C. At the stage of inquiry when the Court uses its power for the aforesaid purpose, it may take into consideration the materials collected by the Investigating Officer during investigation or even the statement recorded under sections 200 and 202 Cr.P.C., as the case may be, it acts at a pre-congnizance stage of the matter before filing the charge-sheet by the police. However, after submission of the charge-sheet and after framing of charges when the trial commences and evidence of witnesses are recorded, the trial court may pass an order to summon a person as co-accused alongwith the accused persons who are already facing trial under Section 319 Cr.P.C. and at this stage no extraneous material are to be looked into or considered by the trial court except the deposition of the witnesses recorded before the Court. At this point, a decision of the Hon'ble Supreme Court in Brijendra Singh & Others Vs. State of Rajasthan, 2017 (7) SCC 706 particularly, paragraph 15 of the said pronouncement is relevant to quote here, which is extracted as below. "15. 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 161 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."

11. However, in the authority judgment of the Full Bench in Hardeep Singh Vs. State of Punjab, (2014) 3 SCC 92, the Hon'ble Supreme Court held that - "117.2. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 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 enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet. "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."

12. It is pertinent to mention here that the Constitution Bench of Hon'ble Supreme Court in the case of Hardeep Singh (supra) dealt with the issue which was framed as question no.3 like this - "Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused."

13. The dictum of law promulgated by the Hon'ble Supreme Court in the judicial pronouncement may be summarized as mentioned hereinafter and it can be safely held that the Court during trial is justified to look into the materials collected during investigation by the Investigating Officer but however such materials and evidence can be used only for corroboration of the evidence recorded in the Court after the trial commences for the exercise of power under section 319 Cr.P.C.

14. So far as the instant matter is concerned, a perusal of the impugned order draws the attention of this Court to the effect that revisionist Dinesh Chauhan was named in the F.I.R. but however his name was exonerated during investigation and no charge-sheet was submitted against him. The exoneration of Dinesh Chauhan, the present revisionist by the Investigating Officer during investigation was protested by the informant by way of filing a protest petition before the court but before disposal of the said protest petition, the said accused was summoned under Section 319 Cr.P.C. by the court itself. It is pertinent to mention here that the impugned order under Section 319 Cr.P.C. was passed after recording of the evidence of P.W.1 Israwati Devi, the wife of the deceased and P.W.2. Ghanshyam Mishra, neighbourer of the deceased's shop, who are said to be the witnesses of fact.

15. The evidence of P.W.1 Israwati Devi, if taken into consideration, nowhere points out that she is an eyewitness of the incident, although she deposes against the present revisionist. Her evidence does not clarify as to how she came to know the complicity of the revisionist in the commission of murder of her husband. Hence, she is not an ocular witness of the incident.

16. The learned trial court has further relied upon the evidence of P.W.2 Ghanshyam Mishra, who in his cross-examination, narrating the factual story, states that at the time of incident the deceased Lavhar Chauhan was demanding his money which was due upon the revisionist and when an altercation took place between the two, the revisionist Dinesh Chauhan committed the murder of the deceased by throttling and he had seen the occurrence. The attention of the Court is drawn towards the statement of P.W.2 which was deposed by him in his examination-in-chief. P.W.2, in his examination-in-chief, has made a specific statement that at the time of incident he was sleeping in his house and when he was awakened by his wife, he reached the house of the deceased where the doctor was examining him and declared his death. The statement deposed by P.W.2 in the cross-examination is totally contrary to that which was deposed by him in his examination-in- chief before the court.

17. Now the situation which comes before the Court is that out of two witnesses, one is not the eyewitness of the incident and the second one himself makes his deposition unworthy of credit. His statements are inconsistent and are having substantial contradictions and mark a notable and serious dent upon the truthfulness of the prosecution story.

18. It is a trite law, particularly after the pronouncement of the judgment of the Hon'ble Supreme Court in Hardeep Singh (supra) case that an effective order under Section 319 Cr.P.C. may very well be passed by the trial court relying only on the statement made by a witness in his examination-in-chief and there is no need to wait for the cross-examination of such witness which makes the prosecution easy to move an application under Section 319 Cr.P.C. and to force the court to rely upon it.

19. The matter is different in the circumstances of the instant case. At the time of passing the impugned order implicating the revisionist Dinesh Chauhan as co-accused in this matter, there was no reliable evidence before the trial court. It is clarified by the Hon'ble Supreme Court in Hardeep Singh (supra) case that the evidence collected and found during investigation or inquiry under section 200 and 202 Cr.P.C. may be seen at the stage of passing the order under Section 319 Cr.P.C. but however such materials and evidence can be used only for the corroboration of the evidence recorded in the court after commencement of trial to invoke its power under Section 319 Cr.P.C. The Investigating Officer has recorded the statement of several witnesses in the instant case wherein a denial to the prosecution story may be easily found.

20. In the statement under section 161 Cr.P.C. the informant / the wife of the deceased Israwati Devi admits that she was not an eyewitness of the incident and the complicity of the present revisionist was disclosed by Uma Devi and Chandrabali to her and at the time of occurrence she was not present. Hence, her statement is only a hearsay evidence which could not be relied upon by the trial court. Although some improvement was made by the informant in her subsequent statement to the Investigating Officer wherein she claims to be an eyewitness of the occurrence but it is certainly an afterthought which makes her subsequent statement unreliable.

21. In the same manner, P.W.2 Ghanshyam Mishra although in his examination-in-chief claims that he had made his statement to the Investigating Officer regarding the guilt of the present revisionist but his entire evidence, if taken in totality, keeps him in the category of unreliable and inconsistent witness.

22. Hence, there was no reliable material on record before the learned trial court to pass an order under Section 319 Cr.P.C. on the basis of statement of P.W.1 and P.W.2 and the said statements do not corroborate the prosecution story in the right direction.

23. In the aforesaid circumstances, the trial court ought to have waited for some other reliable ocular evidence of the matter. P.W.1 Israwati Devi has deposed before the court that the occurrence was seen by Mahesh Chauhan, Ghanshyam Mishra, Chhotey Mishra and her son Vikas Chauhan also. Out of the said witnesses, the evidence of Ghanshyam Mishra, the alleged eyewitness, has been discussed earlier. The Investigating Officer has interrogated some of the witnesses but however the statement of Vikas Chauhan has not been recorded by the Investigating Officer. Although in the charge-sheet the said Vikas Chauhan is shown as a witness of inquest proceedings but however he ought to have been interrogated by the Investigating Officer. As P.W.1 claims the said Vikas Chauhan, her son to be the ocular witness of the incident and in the same manner the evidence of Chhotey Mishra and Mahesh Chauhan who were also named as eyewitnesses of the incident by P.W.1, the informant, should also have been recorded by the Investigating Officer, as their name is found in the charge-sheet as witnesses. Hence, it appears that the learned trial court in haste passed the order under Section 319 Cr.P.C. without procuring the relevant witnesses to be examined before it on oath. At the time of passing the impugned order the learned trial court besides P.W.1 and P.W.2 should have to wait for the aforesaid witnesses to be examined for the simple reason that the order under Section 319 Cr.P.C. should never be passed by the trial court.

24. Now it is trite law particularly after the judgment of Hon'ble Supreme Court passed in Hardeep Singh (supra) case that since the Court exercises discretionary jurisdiction in terms of Section 319 Cr.P.C., it must arrive at a satisfaction for the role played by the proposed accused and 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.

25. Hon'ble Supreme Court on this issue in Sarabjit Singh & Anr. Vs. State of Punjab & Anr., AIR 2009 SC 2792 while explaining the scope of Section 319 Cr.P.C. observed like this - "….For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned……Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied."

26. On the basis of aforesaid discussion, in the peculiar facts and circumstances of the case, this Court is of the view that the impugned order is not sustainable at this stage of the matter. After recording the evidence, as indicated above, the trial court, if another application under Section 319 Cr.P.C. is moved before it, may consider the new and additional evidence of record and pass an order in accordance with law. In this way, the present criminal revision deserves to be allowed and the impugned order is liable to be set-aside.

27. Revision is allowed. The impugned order dated 10.09.2024 passed by Addl. District & Sessions Judge, Court No.1, Kushi Nagar at Padrauna in S.T. No.366 of 2022 (State Vs. Chandrabali Chauhan) arising out of Case Crime No.309 of 2021 under section 302 IPC, Police Station Tarya Sujan, District Kushinagar is set- aside.

28. Copy of this order be sent to the court concerned for compliance and necessary action. Order Date :- 5.8.2025 SANDEEP SHARMA High Court of Judicature at Allahabad