The Allahabad High Court dismissed a revision petition filed to set aside the order passed by Additional Sessions Judge, Bijnor in case under section 323/34, 304/34, 504, 506 IPC, P.S Dhampur, District Bijnor.
A Single Bench of Justice Syed Aftab Husain Rizvi passed this order while hearing a Criminal Revision filed by Ishwar.
The facts are that an FIR was lodged on 08.07.2016 naming the applicants Ishwar, Nand Lal, Keshav and Ghanshyam. The allegations of the FIR is that on 08.07.2016 at 10:30-11:00 am, applicant- Ishwar, Nand Lal, Ghanshyam and Keshav started construction over the disputed land. The complainant and her husband and daughter Tannu prevented them from doing so, then all the four accused persons assaulted the complainant, putting him on earth, they assaulted him with bricks. Her husband received injuries in the stomach and became unconscious. The complainant and her daughter tried to save him but the accused-persons assaulted them. They went away from there abusing and extending threats with death. The complainant took her husband to the hospital where he is under treatment. Initially the case was registered under section 323, 504, 506 IPC. Due to the death of injured, Section 304 IPC was added.
After investigation, a charge-sheet was submitted only against three accused namely Nand Lal, Ghanshyam and Keshav. The Investigating Officer exonerated the other named accused Ishwar. During the course of trial, after examination in chief of Savita Devi (complainant/ injured) an application U/s 319 CrPC was moved by the complainant/ prosecution alleging therein that accused Ishwar is named in the FIR and complainant Savita in her statement under section 161 CrPC has assigned the same role to him as the remaining accused. The examination in chief of Savita has been recorded in the court, she is one of the injured witnesses.
It is contended by the counsel for the revisionist that the trial court has summoned the revisionist only on the basis of a statement recorded under section 161 CrPC as well as examination in chief of the complainant. Without considering the entire facts and circumstances of the case, the statement U/s 161 CrPC has been relied on. Hence the summoning order is illegal and arbitrary on the face of record and is not sustainable in the eyes of law.
It is submitted by the counsel for the revisionist that general allegations have been levelled against all the accused persons. No specific allegations have been levelled against any accused persons during the course of investigation. The Investigating Officer has collected the evidence to the effect that on the date of incident, the location of the mobile number of the revisionist was not near the place of incident.
The revisionist had two mobile numbers and the location of these mobile numbers shown at Moradabad. After verification of call detail records, it was found that he was not present at the place of occurrence.
The Investigating Officer has recorded the statement of Munesh Kumar (principal of coaching centre) where the revisionist was studying and other independent witnesses namely Monu Kumar, Manjul Kumar, Ranjeet Singh, Munendra Singh, Krishna Kumar, Jitendra etc. under section 161 CrPC and they have stated that on 08.07.2016 the revisionist was present in the coaching institute from 9:30 am to 12 noon.
During the course of investigation, evidence to this effect has come that on the date of incident, the revisionist was not present at the spot and accordingly the Investigating Officer deleted his name.
It is further contended that power U/s 319 CrPC is to be exercised sparingly only when strong and cogent evidence occurs. 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 CrPC.
Counsel further contended that Savita Devi in her statement illegally and falsely gave the name of the revisionist as well as the entire family. The learned trial court without any evidence & reasons and without recording the satisfaction has illegally summoned the revisionist. The order is not sustainable in the eye of law.
It is also contended that the trial court, without considering the legal aspect of the matter and without considering the facts and circumstances of the case, has illegally summoned the revisionist to face the trial.
AGA and counsel appearing for opposite party no 2 submitted that the Investigating Officer in collusion with the accused has wrongly exonerated the revisionist whereas the injured of the case had specifically named the revisionist as one of the accused who not only participated in causing death of her husband but also caused injuries to her.
The Investigating Officer has referred to two mobile numbers. The location of the mobile number has been shown at Moradabad, however, as per the verification report of the user of this number, it was informed to the Investigating Officer that this number is registered in the name of Keshav Kumar, the uncle of the revisionist. Thus, even the so called mobile detail record does not establish that the revisionist was at a different location inasmuch as the mobile number on the basis of which the Investigating Officer has come to this conclusion, belongs to Keshav Kumar and not to the revisionist. The entire case diary does not contain any call detail record and only a passing reference has been made by the Investigating Officer with respect to the two mobile numbers.
Counsel further contended that the revisionist has equally participated in the commission of the offence, the presence of the revisionist at the place of time and occurrence is clearly established from the statement of the injured witness during the course of trial.
The Court observed that,
It is undisputed that the revisionist was named in the FIR showing his complicity in the incident, one person has died in the incident while the other (complainant) has received injuries. The Investigating Officer has exonerated the revisionist during the investigation, on the basis of evidence that at the relevant time, his presence is not established to be at the place of occurrence as he was present at Moradabad in his coaching institute. The Investigating Officer has recorded the statement of the Manager of the coaching institute and some other witnesses. This fact is uncontroverted that the mobile, the location of which is shown to be at Moradabad is registered in the name of Keshav Kumar and further that the entire case diary does not contain any CDR and only passing reference has been made by the Investigating Officer with respect to the two mobile numbers.
The FIR of this case has been lodged by the complainant who has also received injuries in the incident naming the revisionist and attributing the role of taking part in the incident. In her statement recorded U/s 161 CrPC, she has reiterated the allegations of the FIR but the Investigating Officer on the basis of the material collected during the course of investigation as discussed above has exonerated the revisionist.
During the course of trial, the complainant has been examined as Savita Devi. Her examination in chief, was recorded in which she has again corroborated the allegations of the FIR showing the complicity of the revisionist in the incident. It is settled law that the testimony of an injured witness is of higher value and cannot be ignored.
In the case of Hardeep Singh (Supra), the Apex Court held that the power U/s 319 CrPC can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross examination for, it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect of complicity of some other person(s), not facing the trial in the offence.
“So applying the test laid down by the Apex Court on the set of facts, it is clear that there is strong evidence, than mere probability of the complicity of the accused in the form of testimony of injured witness and it pass the test as laid down by the Apex Court 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 led to conviction. Further the material on the basis of which the revisionist was exonerated by the Investigating Officer is not conclusive in nature and this fact distinguishes this case from the case law of Bijendra Singh vs State of Rajasthan (2017) 7 SCC 706 relied on by the counsel for the revisionist. The case law cited by counsel for opposite party no 2 fully supports his arguments and is applicable in the set of facts.
In the impugned order, the trial court has narrated the entire facts and material on record and has critically analyzed all these materials. The trial court has recorded its satisfaction about the complicity of the revisionist and, therefore, has summoned him. The order is a detailed and reasoned one which is just and proper. There is no illegality or infirmity in the impugned and it needs no interference”, the Court further observed while dismissing the petition.