Raj Kumar vs State of U.P. and Others

M.C. Jain, J.—I have heard learned Counsel for the revisionist and learned A.G.A.

The revisionist is aggrieved by an order dated 12.12.2001 passed by the Additional Sessions Judge, Court No. 1, Jaunpur in S.T. No. 366 of 1999 whereby he rejected the prosecution''s application to summon opposite party Nos. 2 to 4, as accused in view of the provision of Section 319, Criminal Procedure Code Some others are facing trial in the said case under Sections 394/302/307, Indian Penal Code Two persons Ram Dularey and his son Vijay Bahadur were done to death in this incident and Rajesh Kumar and Saraswati Devi wife of Ram Dulary sustained injuries. The incident had taken place on 17.7.1999 at about 2 a.m. in village Tilaura, P.S. Machhalishahr, district Jaunpur. The report was lodged on 17.7.1999 at 6.15 a.m. by Raj Kumar Yadav. Nobody was named as culprit in the F.I.R. The incident was so related in the F.I.R. that in the fateful night, the victims and others were sleeping at their house when 3 or 4 miscreants armed with knives and axes appeared there. Besides murdering Ram Dularey and Vijay Bahadur and causing injuries to Saraswati Devi and Rajesh Kumar, they looted away property also. After the incident, they allegedly went to the house of one Kashi Ram, assaulted women folk and looted away property there from too.

After investigation, the police charge-sheeted some others who figured during investigation as culprits. The prosecution made an application to summon opposite party Nos. 2, 3 and 4, namely, Vinay Kumar, Bhola Nath and Uma Shankar u/s 319, Criminal Procedure Code on the premise that they had been named as culprits before the Court by Rajesh Kumar P.W. 1 and Saraswati Devi P.W. 4, both of whom were injured of the felony. The prayer did not find favour with the court below and application was rejected observing that they were not named in the F.I.R. and there was no other independent witness excepting these two as regards the participation of opposite party Nos. 2 to 4 in this crime. Aggrieved thereby, the complainant has preferred this revision.

It is noted from the evidence of Rajesh Kumar P.W. 1 and Saraswati Devi P.W. 4 recorded in the lower court that both of them have named opposite party Nos. 2 to 4 as participants of this crime. Two of them, namely, Vinay Kumar and Bhola Nath were armed with parts of plough (HAL KA PHAL) and third one Uma Shanker used knife. All of them allegedly wielded these weapons in causing injuries. The statement of Rajesh Kumar P.W. 1 is that he and deceased Vijay Bahadur had been assaulted by these persons with the weapons that they had. The statement of Saraswati Devi P.W. 4 is to the effect that she and her husband had also been assaulted by these persons. Both of them also stated that they had become unconscious at the spot.

It is also pertinent to observe that both these witnesses sustained a number of injuries as is clear from their medical examination reports, the copies of which have been filed on record. Some of the injuries of both of them were kept under observation. The X-ray was advised. Both of them were referred to District Hospital, Jaunpur. The fact that opposite party Nos. 2 to 4 had not been named in the F.I.R. could not be made a ground for the rejection of application of prosecution to summon them u/s 319, Criminal Procedure Code when the evidence had come to be there before the Court against them in the form of testimony of Rajesh Kumar P.W. 1 and Saraswati Devi P.W. 4 whose presence at the spot could not at all be doubted as both of them were injured also. Moreover, the F.I.R. had been lodged by Raj Kumar, and not by any of these two witnesses. Indeed, the F.I.R. could be used to corroborate or contradict the maker of it. The injured witnesses could not be made to be bound by recital thereof, particularly when, according to him, they had lost consciousness at the spot.

The power of the Court u/s 319, Criminal Procedure Code is not controlled or governed by naming or not naming of the person concerned in the F.I.R. Nor the same is dependent upon submission of the charge-sheet by the police against the person concerned. In fact, Section 319, Criminal Procedure Code, can hardly be made use of if the police books the person concerned by submitting the charge-sheet. Expression ''any person'' occurring in Section 319, Criminal Procedure Code refers to one who is not already being tried. Even the person dropped by the police during investigation is included in this expression. The power of summoning u/s 319, Criminal Procedure Code can be exercised if it so appears to the Court from the evidence at the trial that any person not being the accused has committed any offence for which such person could be tried together with the accused already facing trial. Under such circumstance, the Court may proceed against such person for the offence which he appears to have committed. A plain reading of Section 319(1), Criminal Procedure Code clearly shows that the Court will have power to add any person, not being the accused before it, against whom there appears during trial sufficient evidence indicating his involvement in the offence. It has also to be kept in the mind that mere relationship or interestedness of a witness is not sufficient to discard him, if his presence at the spot cannot be seriously doubted. The presumption should be that the witness giving statement on oath has spoken the truth and burden must lie on him who challenges veracity of the statement to show that it is not true. The power u/s 319, Criminal Procedure Code can be exercised only in the cases where the involvement of certain persons comes to light in the course of evidence recorded during enquiry or trial. The Court has unfettered jurisdiction to summon such persons u/s 319, Criminal Procedure Code The term ''evidence'' occurring in Section 319, Criminal Procedure Code does not mean ''evidence'' complete by cross-examination and the Court can take action on uncross-examined evidence.

Obviously, in the present case, the evidence has come to be there before the trial court in the form of statements of the injured witnesses Rajesh Kumar P.W. 1 and Saraswati Devi P.W. 4 as to the participation of opposite party Nos. 2 to 4 in the commission of this offence. This being so, the court below was not at all justified in rejecting the application of the prosecution to summon them u/s 319, Criminal Procedure Code by observing that they were not independent witnesses or that opposite party Nos. 2 to 4 had not been named in the F.I.R. lodged by another person or had not been charge-sheeted by the police.

The impugned order passed by the court below is illegal and cannot be sustained in view of the correct legal position.

In the result, the revision is allowed. The impugned order dated 12.12.2001 passed by the court below is quashed. The court below is directed to summon opposite party Nos. 2 to 4, namely, Vinay Kumar, Bhola Nath and Uma Shanker in S.T. No. 366 of 1999 as accused and to proceed against them as per the provisions of law.