Court No. - 79
Case :- CRIMINAL REVISION No. - 4521 of 2019 Revisionist :- Abhay Yadav And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Atul Kumar Shahi Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
This criminal revision has been filed against the judgement and order dated 6.11.2019 passed by Addl. District and Sessions Judge court no. 6, Gorakhpur, by the impugned order the application the application moved under Section 319 Cr.P.C. was allowed and the present revisionist were summoned to face trial along with other co-accused in S.T. NO. 102 of 2019 (State vs. Girjesh @ Tikori), arising out of Case Crime no. 379 of 2018, under Sections 302/34, 323/34, 504 and 506 I.P.C., P.S. Bansgaon, district-Gorakhpur, pending in the court of Addl. District and Sessions Judge court no. 6, Gorakhpur.
As per prosecution case there was previous enmity between the present accused and the complainant and so many times the accused persons threatened to kill the father of the complainant. The field of complainant is situated adjacent to the house of Girjesh, in which rice is being sowed. On 18.10.2018 at about 12.45 p.m. the cattles of Girjesh and his brother Markandey were grassing and that place Smt. Sunita, wife of Markandey and her sons Abhai Yadav and Vijay Shanker were present along with Grijesh. Upon receiving information the complainant along with his father Ramanand and mother Smt. Malti reached there. When the father of the complainant asked to the accused persons your cattle are destroying the paddy while you are seeing the scene. In retaliation all the accused persons after hurling abuses threatened to kill the father of the complainant, thereafter they caught hold him and started beating with kicks and fist with the intention to kill. Intentionally Girijesh attacked on his Scrotum and on his chest. Other accused also assaulted him. When the father of the complainant tried to save himself and tried to run away, the accused persons surrounded him and murdered him. The complainant and his mother also received injuries while they tried to save his father.
Learned counsel for the revisionists submitted that although the revisionists were named in the FIR but the police during investigation found that they were not present at the place of occurrence at the time of incident and they were found somewhere else and their complicity was not found in the commission of crime. He further submitted that the learned trial court has not considered the entire facts and circumstances of the case in proper legal prospective and learned trial court acted only upon the statement of PW1 Tej Pratap and summoned the accused illegally.
Learned counsel for the revisionist has relied upon the judgement reported in (2014) 3 SCC 92 Hardeep Siongh V. State of Punjab and (2017) 7 SCC 706 Brijendra Singh and others vs. State of Rajasthan in support of his contention. He has submitted that Hon'ble Apex Court has held that the evidence means the material that is brought before the court during trial and the material/evidence collected by the I.O. at the stage of inquiry is concerned, it can also be utilised for corroboration and to support the evidence recorded by the court to invoke the power under Section 319 Cr.P.C.
Learned counsel for the revisionist further submitted that since it is a discretionary power given to the court under Section 319 C.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. He also submitted that a degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner and the prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.
Learned counsel for the revisionist also submitted that the police has exonerated the present accused because at the time and date of incident the accused were not present at the place of occurrence.
After perusal of the impugned order as well as material brought on record, it transpires that the accused was exonerated by the police as the police during investigation had not found the complicity of the accused was not found in the commission of the crime and his presence was shown somewhere else at the time of incident. The prosecution has examined PW1 Tej Pratap and PW2 Smt. Malti Devi, wife of the deceased, who have specifically nominated the accused and shown their complicity in the commission of crime and on the basis of testimony of the prosecution witnesses of fact the trial court has summoned the accused and arrayed the revisionist as accused to face trial. The trial court has not considered the evidence which was recorded by the police during investigation while discharging the application under Section 319 Cr.P.C. which ought to have been considered by the trial court as held by Hon'ble Apex Court in Brijendra Singh case (supra). The trial court has committed manifest error and illegality in not considering the evidence collected by the Investigating Officer during investigation while performing an opinion to summon the revisionists as accused.
In view of the above, the revision is allowed. The order order dated 6.11.2019 passed by Addl. District and Sessions Judge court no. 6, Gorakhpur in the aforesaid case is hereby set aside. The matter is remitted back to the concerned trial court with a direction that the trial court shall pass a fresh order after considering the evidence recorded before the trial court and considering the evidence which is available in the police investigation and until a fresh order, no coercive action shall be taken against the revisionist.
Order Date :- 29.11.2019 Faridul