Court No. - 76
Case :- APPLICATION U/S 482 No. - 18231 of 2020 Applicant :- Dhwaja Bind Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Dhirendra Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Dhirendra Kumar Srivastava, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned order dated 15.07.2019 passed by Additional Sessions Judge/Fast Track Court-IInd, Chandauli in S.T. No. 188 of 2007 arising out of case crime no. 21 of 2006, under section 302, 201 IPC, P.S. Sakaldiha, District Chandauli, whereby the application under section 319 Cr.P.C. has been rejected and also a prayer is made to pass appropriate order so that the private opposite party nos. 2 to 4 be summoned to face trial till the disposal of this application.
Submission made by the learned counsel for the applicant is that an application was moved by the informant under section 319 Cr.P.C to summon the opposite party nos. 2 to 4 as accused in this case to face trial. The saidapplication has been erroneously rejected despite there being sufficient evidence on record. He has drawn attention to the statement of PW-3 who is informant Dhwaja Bind who had stated that he had got names of four accused registered in FIR which included the name of opposite party nos. 2 to 4. He had seen the occurrence. His son (deceased) had been tied with a rope and was thrown after having been killed and the said accused were washing their hands and feet. He had not seen the occurrence but he had seen them washing hands and feet at the place where the dead body was lying. Further, he has drawn attention of Rajauti @ Rajwanti (PW-4), wife of late Chulbul Bind @ Chandrama Bind, in which she had stated that about 11 year ago at about 6.00 p.m. Shivdani @ Dani and Awadhesh Maurya had come to her house and asked her husband (deceased) to accompany them for going to Darshan at Majar of Shahid Baba at Hetimpur. She had told her husband not to accompany them but he accompanied them. She also followed and when she reached near field, she saw that co-accused Ram Lal Bind was standing there and thereafter her husband did not return for long and when her father-in-law went in search of her husband towards Majar at Hetimpur, near that Majar, a pond was situated. The opposite party nos. 2 to 4 were seen washing their hands and feet. Having drawn these pieces of evidence, it is argued by him that the said evidence is sufficient to summon the accused to face trial. It is further argued that the trial court has refused to summon them, hence impugned order should be set aside.
Learned A.G.A. has vehemently opposed the prayer for quashing the impugned order.
I have gone through the FIR which says that the informant's son Chulbul Bind @ Chandrama Bind used to go for Darshan at Majar at Hetimpur. On 29.3.2006 in the evening at about 6.00 p.m. he had gone for Darshan but did not return. On 30.3.2006 informant went in search of his son and saw some crowd near the Majar and adjacent to the Majar, there was a pond in which a dead body was lying which was recognized as that of his son Chulbul Bind @ Chandrama Bind, therefore, he has expressed his suspicion that the deceased might have been killed by opposite party nos. 2 to 4 and dead body was thrown in the pond. It is apparent from the evidence which has come on record as well as the version of the prosecution given in the FIR that it is a case of circumstantial evidence. No incriminating article has been recovered from the possession of the accused opposite party nos. 2 to 4. The evidence which has been cited above is of very weak nature as both the witnesses have stated that they had seen the said opposite party nos. 2 to 4 washing their hands and feet near the pond where dead body was said to be lying.
The Supreme Court in the case of Hardeep Singh vs. State of Punjab and others, (2014) 3 SCC 92 in paragraph nos. 105 and 106 has held as under:
"105. Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner."
"106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."
In view of the above, after the appreciation of evidence in the present case it is not found strong enough to summon the accused opposite party nos. 2 to 4 to face trial in the above- mentioned section, therefore, trial court's order is upheld.
The present application deserves to be dismissed and is accordingly dismissed.
Order Date :- 6.1.2021 AU