Dharnidhar Sharma vs State of Uttarakhand & others

Mr. R.P. Nautiyal, Senior Advocate assisted by Mr. A.P. Singh, Advocate for the revisionist.

Mr. J.S. Virk, Assistant Government Advocate for the State.

Mr. S.P.S. Panwar, Senior Advocate assisted by Mr. Siddhartha Sah, Mr. Narendra Bali, Advocates for the private respondents.

This criminal revision has been filed before this Court challenging the order dated 05.11.2016 passed by the learned Additional Sessions Judge,

Ramnagar, Nainital in Session Trial No. 03 of 2015, whereby on an application moved by the prosecution under Section 319 of CrPC for

including Smt. Chaya Devi and Smt. Rajbala as accused has been rejected.

The ongoing Session Trial relates to a cross-case for an incident which occurred on 26.06.2013 at 06.30 P.M., in which the injured Dheerendra

Sharma, who was allegedly working in his field was attacked, inter alia, by Sanjay Singh, his mother Smt. Chaya Devi and Smt. Rajbala (it is Smt.

Chaya Devi and Smt. Rajbala who have subsequently to be included as accused under Section 319 of CrPC), with fire arms. There was an

allegation of exhortation against Smt. Chaya Devi and Smt. Rajbala, though actual incident of using fire arm is on Sanjay Singh. Though the name

of both Smt. Chaya Devi and Smt. Rajbala figured in the first information report but the police did not file charge-sheet against them.

All the same, the prosecution witnesses i.e. PW-1 Dharnidhar Sharma and PW-3 Dheerendra Sharma were examined on 19.05.2016 and

20.08.2016 respectively. PW-3 who is the injured witness and PW-1 who is the complainant have categorically stated in their examinations that

along with Sanjay Singh, his mother and his aunt i.e. Smt. Chaya Devi and Smt. Rajbala, respectively were also present. There are clear allegations

of exhortation against both of them in the alleged incident. Subsequently, an application under Section 319 of CrPC was moved by the

prosecution, which has been rejected by the court below vide order dated 05.11.2016.

Order dated 05.11.2016 has been perused.

For our purposes it has to be seen as to what is the nature of the evidence which has been appreciated by the trial court while exercising its

power under Section 319 of CrPC. The leading case in this is the case of Hardeep Singh & others Vs. State of Punjab & others, reported in

(2014) 3 SCC 92, wherein, inter alia, it has been held by the Hon''ble Apex Court that powers can be exercised under Section 319 of CrPC but

what has to be seen prima facie by the court is that such an accused has committed a crime, though the degree of satisfaction of the court is of a

somewhat higher level than a mere prima facie satisfaction.

This Court, however, fails to understand that when both PW-1 who is the complainant and PW-3 who is the injured witness had given

categorical statements in their examination-in-chief against Smt. Chaya Devi and Smt. Rajbala and the role assigned to them is of exhortation,

though not of using fire arms. (Sanjay Singh, who is the son of Smt. Chaya Devi, was asked to fire at the injured witness as it has come in the

statements of the witnesses), why they have not been made an accused! Under these circumstances, there was in fact no option for the court but to

have exercised its power under Section 319 of CrPC by allowing the application of the prosecution as it has been held by the Hon''ble Apex Court

in the above seminal judgment of Hardeep Singh & others Vs. State of Punjab & others, reported in (2014) 3 SCC 92, that the foundation of

Section 319 of CrPC is the doctrine of judex damnatur cum nocens absolvitur, which would mean that a Judge is condemned when guilty is

acquitted and it is for this reason that the Hon''ble Apex Court said in the above case that ""it is the duty of the Court to do justice by punishing the

real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling

the said accused to face trial.

At the present stage of the trial, there was enough evidence before the court to have exercised its power under Section 319 of CrPC.

Therefore, the order dated 05.11.2016 passed by the court below is liable to be set aside.

Consequently, the criminal revision is allowed. The order dated 05.11.2016 passed by the learned Additional Sessions Judge, Ramnagar,

Nainital is hereby set aside. The application moved by the prosecution is allowed. Let respondent nos. 2 and 3 be included as accused and the trial

shall commence in accordance with law.

Having made the above determination, it is also made clear that since both the accused are women, the court below shall consider their bail

application in the light of the above observations when it is moved before the court concerned.