Prakash Sony vs State of Jharkhand

Prashant Kumar, J.—This application has been filed for quashing the order dated 20.08.2013 passed by 2nd Additional Sessions Judge, Chatra in S.T. No. 54 of 2009 corresponding to B. Nagar P.S. Case No. 33 of 2008 whereby and whereunder the learned court below allowed the application of the prosecution filed under section 319 of the Cr.P.C. and decided to try the petitioner along with other co-accused for the murder of Lakhi Devi and accordingly issued non bailable warrant of arrest against him.

It is alleged that in the morning of 21.07.2008 accused persons, named in the FIR (including the petitioner)were forcibly opening a door in the land of informant and when the informant, his mother and wife protested, they assaulted informant''s mother with Lathi, Danda and bricks. It is stated that due to the aforesaid assault, informant''s mother become seriously injured and fell on the ground. It is stated that during the occurrence informant and his wife also received injury. It is further stated that when the informant and other villagers had tried to take the injured mother to the hospital, they found that she had already died. Accordingly, the present case bearing B. Nagar Case No. 33 of 2008 instituted under section 147, 149, 323 and 302 of the Indian Penal Code and police took up investigation. It appears that after investigation, police submitted charge sheet against accused persons except petitioner. The Investigating Officer submitted final form in favour of petitioner. It then appears that the case of other accused persons committed in the court of sessions as the offence under section 302 of the I.P.C. is exclusively triable by the court of Sessions.

It further appears that learned Sessions Judge framed charges against other eight accused persons and then recorded evidences of the witnesses. It appears in course of trial prosecution filed an application under section 319 of the Cr.P.C. on 13.12.2010 and prayed that petitioner Prakash Soni be arraigned and tried along with other accused persons, because P.W. 2 Sanjiv Kumar Upadhyay, who is an eye witness of the occurrence, had stated that at the time of occurrence, Prakash Soni (petitioner) was instigating other accused persons for killing the old woman. The aforesaid application filed by the prosecution was allowed by the learned courts below as according to it prima facie case against the petitioner, Prakash Soni, made out for instigating other accused person to commit murder of deceased (Lakhi Devi). Against the aforesaid order, present application filed.

Sri A.K. Chaturvedy, learned counsel appearing for the petitioner submits that under section 319 of the Cr.P.C., any person can only be arraigned as an accused if it appears to the court that there are sufficient evidences for his conviction. It is submitted that in the instant case except P.W. 2 none had stated that petitioner was present at the place of occurrence. It is further submitted that during the investigation, the I.O. had found that on the date and time of occurrence, petitioner had gone to the Bank of India, Jori for depositing money of Rani Devi, Rita Devi and Ragnunandan Prasad. It is submitted that since the I.O. has found that on the date and time of occurrence petitioner was not present on the place of occurrence, therefore he concluded that petitioner was falsely implicated by the informant, because he is brother-in-law of co-accused Kishori Prasad Soni. Accordingly, Sri Chaturvedy submits that if all the evidences will be taken together, the petitioner will be acquitted in the present case. Accordingly, he submits that addition of petitioner as co-accused in the instant case is an abuse of the process of court, hence cannot be sustained.

On the other hand, Sri H.K. Shikarwar, learned Additional P.P. submits that from the evidence of P.W. 2 Sanjiv Kumar Upadhyay, it is clear that the petitioner was present at the place of occurrence on the date and time of occurrence and he instigated other co-accused persons for killing the deceased. Sri Shikarwar, further submits that petitioner is also named in the FIR and still the informant has not been examined. He submits that the I.O. has rejected the evidence of informant without any rhyme and reason and accepted the plea of alibi of the petitioner. Thus, submission of final form in favour of the petitioner is wholly illegal. He further submits that if the evidence of P.W. 2, who is an eye witness of the occurrence, remain unrebutted, then conviction of the petitioner for the offence under section 302 read with section 107 of the Indian Penal Code is certain. Hence, there is no illegality in the impugned order.

Having heard the submission, I have gone through the record of the case. As noticed above, petitioner is named in the FIR along with other co-accused and it is stated that all the accused persons including the petitioner, had assaulted Lakhi Devi (informant''s mother) and due to the said assault, she received injuries and died on the spot. It further appears from the impugned order that in course of trial, the learned court below examined P.W. 2 Sanjiv Kumar Upadhyay who claims himself to be the eye witness of the occurrence and stated that petitioner was present on the roof and from there he was instigating for killing the old woman (deceased). Section 319 of the Cr.P.C. reads as under:--

"319. Power to proceed against other persons appearing to be guilty of offence.-

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then-

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced."

From bare perusal of the provisions contained under section 319 of the Cr.P.C., it is clear that in course of any inquiry or trial, if it appears to the court that from the evidence available on record any person not being the accused in the case has committed an offence and liable to be tried together with the other accused person, the court can try him along with other accused persons. The scope and object of section 319 of the Cr.P.C. has been dealt with by the Constitution Bench of the Hon''ble Apex Court in Hardeep Singh Vs. State of Punjab and Others etc. etc., , quoted herein after:--

"12. Section 319 Cr.P.C. springs out of the doctrine judex damnatur cum nocens absolvitor (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit arid the sprit underlying the enactment of Section 319 Cr.P.C.

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 The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C?"

In the aforesaid decision the Constitution Bench of the Hon''ble Supreme Court, after considering almost all the decisions delivered on this point, finally concluded that what is necessary for the court is to arrive at a decision that the evidence adduced on behalf of prosecution, if unrebutted may lead to conviction of the person sought to be added as an accused in the case. Thus, it is necessary for the Court to consider the evidence received during the trial and satisfy itself as to whether such evidence, if remain unrebutted, will result into the conviction of person, sought to be added.

Keeping in view the aforesaid law, I proceed to consider the evidence adduced in this case on the basis of which the learned court below decided to arraign petitioner in this case. The learned court below quoted part of the statement of P.W. 2 in the impugned order for coming to the conclusion that prima facie case against the petitioner is made out. It appears that P.W. 2 had specifically stated that at the time of occurrence, petitioner was present on the roof of the house and was instigating other accused persons for killing the old woman (deceased). It is worth mentioning that the petitioner is named in the FIR along with other accused person and it is alleged against him that he along with other accused persons had assaulted deceased due to that she died. It also appears from the impugned order that still the informant has not been examined in the case as witness.

Thus, if the evidence adduced by P.W. 2 remain unrebutted then, in my view, on the basis of evidence of P.W. 2, conviction of the petitioner is certain for instigating other co-accused persons to commit murder of the deceased Lakhi Devi. Accordingly, I find that the conclusion arrived at, by the learned court below, does not suffer from any illegality, thus requires no interference by this Court.

In the result, I find no merit in this application, accordingly, the same is dismissed.