Pappu Singh vs State of U.P. and Another

Ravindra Singh, J.—The application has been filed by the applicant-Pappu Singh with a prayer to quash the order dated 28.8.2008, passed by learned XVth Addl. Sessions Judge, Meerut in S. T. No. 686 of 2003, State v. Rejendri and Ors S. T. No. 686 of 2003., u/s 302, I.P.C. whereby the application u/s 319, Cr. P.C. filed by the prosecution has been allowed and the applicant has been summoned to face the trial for the offence punishable u/s 302, I.P.C. in exercise of powers conferred u/s 319, Cr. P.C.

The facts in brief of this case are that the F.I.R. of this case has been lodged by O.P. No. 2 Shyam Singh at P. S. Partapur, district Meerut on 30.6.2003 at 5.30 a.m. in Case Crime No. 190 of 2003 under Sections 302 and 307, I.P.C. against some unknown persons alleging therein that some unknown miscreants caused injuries by using sharp edge weapon on the persons of Ram Baksh, Nepal Singh and Smt. Prakashi. Thereafter they were shifted to the hospital where Nepal Singh and Smt. Prakashi were declared dead and Ram Baksh was admitted in Jagat Nursing Home, Garh Road, Meerut, subsequently he also succumbed to his injuries. After investigation the Investigating Officer submitted the charge-sheet against Smt. Rajendri Devi w/o deceased Nepal Singh, Shiv Kumar and Vinod. The learned Magistrate concerned has taken the cognizance on the basis of the charge-sheet submitted against them. Thereafter their case was committed to the Court of Sessions, the same is pending in the Court of learned Addl. Session Judge-XV, Meerut vide S.T. No. 686 of 2003 u/s 302, I.P.C. in which Shyam Singh P.W. 1, Vishnu P.W. 2, Ramesh P.W. 3, Dr. R. K. Gupta, P.W. 4, Dr. N. Naithani P.W. 5, S.I. Chandan Singh P.W. 6 and S.I. Hari Singh Bhadauriya P.W. 7, Head Constable Jaiveer Singh P.W. 8 have been examined, thereafter an application u/s 311, Cr. P.C. has been filed by the prosecution for summoning Suman and Nisha, the daughters of the deceased Nepal Singh, the same was allowed and Suman and Nisha have been summoned by the trial court as witnesses and they have been examined as C.W. 1 and C.W. 2 respectively. Thereafter the statement of S.I. Amar Pal Singh has been recorded as P.W. 9 and statement of S.H.O. Chandrea Pal Singh was recorded as P.W. 10. After recording the above mentioned statements, the statements of the accused persons were recorded u/s 313, Cr. P.C. but at the stage of the argument an application u/s 319, Cr. P.C. has been moved by the prosecution to summon the applicant in exercise of powers conferred u/s 319, Cr. P.C. on the basis of statement of C.W. 1 Suman and C.W. 2 Nisha are eye-witness of the alleged incident, the same was allowed by learned trial court vide order dated 28.8.2008 and the applicant has been summoned to face the trial for the offence punishable u/s 302, I.P.C. Being aggrieved from the order dated 28.8.2008 the applicant has filed the present application with a prayer to quash the impugned order dated 28.8.2008 in exercise of powers conferred u/s 482, Cr. P.C.

Heard Sri Rajeev Gupta, Sri Madan Mohan and Sri V. K. Jain, learned Counsel for the applicant and learned A.G.A. for the State of U.P.

It is contended by learned Counsel for the applicant that the applicant is not named in the F.I.R., during investigation also the name of the applicant has not been disclosed by any of the witnesses whereas the charge-sheet has been submitted against three persons namely Smt. Rajendri Devi w/o of the deceased Nepal Singh, Shiv Kumar and Vinod who are facing the trial. All the witnesses of the prosecution were examined, none of them have disclosed the name of the applicant as accused but surprisingly an application u/s 311, Cr. P.C. has been moved by the prosecution after examination of eight witnesses with a prayer to summon C.W.-1 Suman and C.W.-2 Nisha. Suman and Nisha were not witnesses of the prosecution, they are daughters of the deceased Nepal Singh and the accused Smt. Rajendri Devi, they claimed themselves to be eye-witnesses of the alleged incident and they disclosed their age about 14 years and 13 years respectively. Their statements were recorded as C.W. 1 and C.W.-2 and they have been cross-examined also. They disclosed the name of the applicant alleging that he has actively participated in the commission of the alleged offence, they stated that the applicant and three other co-accused persons who have been charge-sheeted committed the alleged offence, they are child witnesses and are not reliable. It is also surprising that after cross-examination of the above mentioned witnesses the application u/s 319, Cr. P.C. has not been filed but it has been filed at the stage of the arguments. It is based on false and frivolous allegations and no reliance can be placed on the statement of C.W.-1 and C.W.-2 who are the child witness even then the learned trial court had made the reliance on their statements and summoned the applicant to face the trial which is illegal, the same may be quashed.

It is further contended that the power conferred u/s 319, Cr. P.C. may not be exercised in a routine manner. The same may be exercised sparingly, therefore, the impugned order dated 28.8.2008 may be quashed.

In reply of the above contention it is submitted by learned A.G.A. that the alleged incident has taken place at the house of the deceased persons where C.W.-1 and C.W.-2, the daughters of the deceased Nepal Singh were also present, its reference has been given in the F.I.R. itself. Being children they have not been made witness by the Investigating Officer that is why they could not be examined in the Court as prosecution witness. But both the witnesses are eye-witness and they are able to narrate the prosecution story and are able to give proper reply of the question put before them. They are the best witnesses because they are the only eye-witnesses of the alleged incident, the other three inmates of the house have lost their lives in the said incident. For the just decision of the case their evidence is essentially required, therefore, the application u/s 311, Cr. P.C. was moved by the prosecution for summoning the C.W.-1 and C.W.-2, the same was allowed by the trial court and the eye-witness Suman and Nisha have been examined in the Court as C.W.-1 and C.W.-2. They have clearly stated that the applicant actively participated alongwith other co-accused persons in commission of the alleged offence. They are reliable witnesses, they are daughters of the accused Smt. Rajendri Devi and they have made specific allegation against their mother Smt. Rajendri Devi also in their examination-in-chief and in cross-examination. Thereafter the application u/s 319, Cr. P.C. has been moved by the prosecution for summoning the applicant to face the trial, the same has been rightly allowed by the trial court but it is not improper that this application was moved at the stage of the argument. There is no illegality in the impugned order, the trial court has rightly exercised the powers conferred u/s 319, Cr. P.C. the present application is devoid of merit and the same may be dismissed.

Considering the submission made by learned Counsel for the applicant, learned A.G.A. and from the perusal of the record it appears that the trial court has allowed the application u/s 319, Cr. P.C. at the stage of the argument, after considering the statement of C.W. 1 Suman and C.W.,2 Nisha who are the daughters of the deceased Nepal Singh and accused Smt. Rajendri Devi. According to the provisions of Section 319, Cr. P.C. any persons not being the accused has committed any offence for which such person can be tried together with the accused, the Court may proceed against such person for the offence which he/she appears to have committed. Such person may be summoned at any stage of the trial, Therefore, the learned trial court has not committed any error in passing the impugned order at the stage of the argument.

The next ''issue'' is that a person can be summoned to face the trial in exercise of powers conferred u/s 319, Cr. P.C. on the basis of the Court witnesses as in the present case the applicant has been summoned on the basis of the statement of C.W.-1 and C.W.-2. To deal with this issue it requires to consider the value of testimony of the Court witnesses. The testimony of the Court witnesses is admissible it may be used for the purpose of drawing a proper conclusion as of conviction, acquittal etc., it plays a very important role in drawing the conclusion of the trial, it is also evidence. Therefore, the same may be considered for the purpose of summoning any person to face the trial in exercise of powers conferred u/s 319, Cr. P.C., the evidence of C.W.-1 Suman and C.W. 2 Nisha show that applicant has actively participated in commission of the alleged offence. Both the witnesses are child witnesses, they claimed themselves to be eye-witnesses of the alleged incident except them no other person was eye-witness of the alleged incident because the applicant and other accused persons including the mother of C.W. 1 and C.W. 2 have committed the murder of three persons, specific allegation has been made by both the witnesses against the applicant and three other accused persons who are also facing the trial. Both the witnesses have narrated the prosecution story before the trial court in their examination-in-chief and in their cross-examination. The testimony of the child witnesses is also evidence which is admissible in the eye of law, it has to be considered with proper caution. The trial court has not committed any error in passing the impugned order. The trial court has exercised the powers u/s 319, Cr. P.C., not in a routine manner but after going through the statements of C.W. 1 Suman and C.W. 2 Nisha. The impugned order is not suffering from any illegality or irregularity, therefore, the prayer for quashing the impugned order dated 28.8.2008 is refused.

However, considering the facts and circumstances of the case, it is directed that in case applicant shall appear before the trial court within 30 days from today and applies for bail, the same shall be heard and disposed of expeditiously under the provisions of law, if not released on bail earlier.

With the above direction, this application is finally disposed of.