Gudiya vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

An FIR, being FIR No. 145 of 2018, for the commission of offence under Section 302 IPC was registered at 10:45 P.M. on 15.09.2018, at Police Station Khanpur, Tehsil, Laksar, District Haridwar. In the said FIR, which was registered by the complainant-Salekhchand, he has named two accused persons who were alleged to be involved in commission of the said offence as narrated in the FIR with regards to the murder of one Mr. Amit, who was shown to have been stabbed by Ravi, i.e. the husband of Gudia, (revisionist herein) in an incident which has occurred on 14.09.2018, at 9:30 P.M. The complainant Salekhchand, in FIR has accused the revisionist, who is the wife of assailant husband Ravi, who is accused to have stabbed Amit the son-in-law of the complainant, as his daughter Babita was married to the deceased Amit.

The role, which has been assigned to the revisionist in commission of the said offence as under consideration in the present revision, is that the revisionist was the person, who has been assigned with the role of putting a pillow on the mouth of the deceased-Amit and simultaneously at the same point of time, the other co-accused person namely Ravi has stabbed Amit resulting to his instant death.

The matter was investigated upon by the Investigating Officer, Mr. Dil Mohan Singh Bisht, and he while submitting his chargesheet, the Investigating Officer has not included the name of the present revisionist as the accused shown to be involved in commission of the said offence. Later on, on recording the statement of the other witnesses under Section 161 Cr.PC, it has revealed that the revisionist was also involved in commission of the said offence under Section 302 IPC and hence the learned trial Court de hors to the finding recorded by the Investigating Officer in the Charge Sheet No. 148 of 2018 dated 20.11.2018, which he submitted after examining about 40 witnesses without including the name of the revisionist as to be one of the accused involved in offence for being tried by the learned trial Court. But later on, when it has revealed that she has indulged and equal contributory in commission of the said offence, the prosecution through ADGC (Crime) had filed an application before the learned Sessions Court i.e. in Sessions Trial No. 13 of 2019, State v. Ravi, being application paper No. 12(ka) by invoking provisions contained under Section 319 Cr.PC for summoning the present revisionist as an accused for facing the trial for the aforesaid offence.

The reason assigned by the prosecution for invoking Section 319 Cr.PC was as under:-

(1) Revisionist is named in the FIR involved in the offence.

(2) In statement of complainant PW1 under Section 161 Cr.PC, specifically stated that Gudia has cooperated and assisted in commission of the offence.

(3) Even the eye witness of offence Mrs. Babita PW2, wife of late deceased Amit, submitted Gudia helped in commission of the offence.

(4) Role assigned to Gudia was of pressing the face of the deceased with pillow, while her husband Ravi, stabbed him, when the deceased was in a helpless condition. Hence the prosecution submitted apart that revisionist is named in the FIR, the statements recorded by witness under Section 161 Cr.PC shows an apparent involvement of revisionist in commission of crime.

(5) Her name has been wrongly excluded by the Investigating Officer in the Charge Sheet.

The said application was contested by the revisionist by filing objection paper No. 9(ka) and the learned Trial Court, after considering the controversy at hand, and particularly, the role played by the revisionist, which has been reflected and the probable involvement of the revisionist in commission of the said offence and in view of the statement of PW1 and PW2 i.e. Salekhchand and Smt. Babita respectively, the Court while passing the impugned order of summoning the present revisionist for the involvement in the aforesaid offence has recorded that on considering the evidence on record and in particular, the statement of the witnesses as referred above wherein a specific set of allegation pertaining to specific role played by the revisionist in commission of offence and being satisfied about the probable involvement of the revisionist, under the given circumstances, the learned trial Court has summoned the revisionist to participate in the Sessions Trial.

The learned counsel for the revisionist submits that exercising powers under Section 319 Cr.PC for summoning the probable accused person on his or her alleged involvement in commission of the said offence has had to be within the ambit of the guidelines as laid down by the Constitution Bench of Hon'ble Apex Court in the judgement rendered in Hardeep Singh and others v. State of Punjab and others, as reported in SCC 2014 (3) 92, wherein the Constitution Bench of Hon'ble Apex Court has laid down the parameters and the circumstances under which the accused person could be summoned and particularly the learned counsel for the revisionist had made reference and relied to the contents of paras 98 and 99 of the said judgement, which read as under:-

"98. 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.

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."

If the guidelines issued by the Hon'ble Apex Court and the circumstances, which are required to be dealt with in the present case by the learned trial Court or the Sessions Court for exercising the powers under Section 319 Cr.PC, it simply postulates that exercising powers under Section 319 Cr.PC would be only resorted to when the Court on appreciation of the evidence on record and the statement is satisfied that there is a probable involvement of the person sought to be summoned under Section 319 Cr.PC for his or her involvement in commission of the offence, that itself would suffice to summon the accused person. The only distinction, which has been laid down by the Hon'ble Apex Court is that, it is not that merely an element of alleged involvement would be sufficient to summon the persons but it should be something having more grievous element of his or her involvement that intensity of exercise of power under Section 319 Cr.PC, should not be based merely on probability, but on a positive scrutiny of evidence on record. Meaning thereby, there has had to be an element of a highest magnitude then a probability of involvement.

As per the finding which has been recorded by the learned trial Court after considering the statements of the witnesses, recorded under Section 161 of Cr.PC, the Court has held that there is specific role assigned to the revisionist in commission of the offence with her husband, by strangulating the deceased-Amit (brother of prime accused), by putting the pillow on his mouth, wherein simultaneously Ravi was indulged in stabbing the deceased-Amit. Hence, the strict proposition as contemplated under paras 98 and 99 of Hardeep Singh's case (supra), is slightly to be distinguished in the present case because the learned trial Court has recorded its satisfaction based on available appraisal of evidence and as per the averments and evidence which was considered by the learned trial Court, it cannot be ruled out that the circumstances as involved and narrated therein, there was a bleak possibility of the revisionist's involvement in commission of the said offence. Hence, this Court is of the view that looking to the finding, which has been recorded by the learned Sessions Court, it rather did satisfied the parameters, provided in paras 98 and 99 of the aforesaid judgement of Hardeep Singh (supra) and hence, the impugned order cannot be faulted of on the said premise, alleging to be outside the norms of Hardeep Singh (Supra) case.

The learned counsel for the revisionist further submits that the alleged involvement of the revisionist in commission of the aforesaid offence cannot be accepted as to be prima facie for the reason being that the revisionist has developed a plea of alibi, wherein she had submitted that because of the said incidence, she got so much disturbed and she went to the residence of one Mr. Ram Kumar, who is the neighbourer and hence under that pretext, the revisionist contends that there is a plea of alibi as that she was not available on the spot in question when the offence was committed and hence there was no question of her remotest involvement in commission of the alleged offence.

This Court is of the opinion that the plea of alibi cannot be a plea to avoid the exercise of powers under Section 319 Cr.PC. Plea of alibi is always a subject matter of scrutiny by the learned trial Court or by the Sessions Court as the case may be only, and that too on appreciation of the evidence and about the probable necessity of presence of the person, seeking a plea of alibi on the place and the spot of the commission of offence. The detailed scrutiny of the availability or the presence of the person on the spot in question where offence was committed is not an exception contemplated for the Courts to be exercised at the time and stage while considering the application under Section 319 Cr.PC.

Besides this, Mr. P.S. Bohra, the learned AGA has submitted that even if the simplicitor interpretation as given to Section 319 Cr.PC, it is an exclusive discretion which is being vested with the trial Courts or the Sessions Courts as the case may be, when on appreciation of the evidence and if on Courts affirmation, when Court is satisfied about the probable involvement of the person concerned, sought to be summoned under Section 319 Cr.PC of his involvement in commission of an offence that itself would be sufficient to summon a person and in relation thereto, the learned AGA makes reference to a judgement as reported in AIR 2019 SC 2168, Rajesh and others v. State of Haryana, and particularly, reliance has been placed in its paras 7.8 and 7.10, which read as under:-

"7.8 Considering the law laid down by this Court in the case of Hardeep Singh (supra) and the observations and findings referred to and reproduced hereinabove, it emerges that (i) the Court can exercise the power under Section 319 of the CrPC even on the basis of the statement made in the examination in chief of the witness concerned and the Court need not wait till the cross examination of such a witness and the Court need not wait for the evidence against the accused proposed to be summoned to be tested by crossexamination; and (ii) a person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 of the CrPC, provided from the evidence (may be on the basis of the evidence collected in the form of statement made in the examination in chief of the witness concerned), it appears that such person can be tried along with the accused already facing trial.

7.10 Thus, even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial Court to summon other persons as well who were named in the FIR but not implicated in the chargesheet has gone, in that case also, the Court is still not powerless by virtue of Section 319 of the CrPC and even those persons named in the FIR but not implicated in the chargesheet can be summoned to face the trial provided during the trial some evidence surfaces against the proposed accused.

Since in the instant case, the exception, which has been carved out by the judgement of Rajesh Kumar (Supra), the judgement passed by the learned trial Court on 24.09.2019, cannot be faulted of about the probable involvement of the revisionist of her involvement in commission of the aforesaid offence and summoning her to face the trial. The learned AGA further argues that the scrutiny of the FIR and the manner in which allegation has been made by the learned counsel for the revisionist, cannot be prima facia taken as to be a decipher of all the intricacies of the commission of offence and hence it cannot be taken as to be an encyclopaedia for its interpretation at the stage when the Court is exercising its revisional powers against an order allowing application under Section 319 Cr.PC, because as it has already been observed above that the order impugned dated 24.09.2019 is on an appreciation of evidence, which is contemplated under Section 319 Cr.PC, the plea taken by the learned AGA that the FIR cannot be taken as an encyclopaedia prior to considering an application filed under Section 319 Cr.PC deserves to be accepted and has been rightly allowed by the Courts below.

Further, the learned counsel for the revisionist now at the stage of dictation of judgement carves out two further exceptions, pertaining to the recovery memo and with regards to the post-mortem report. The scrutinization of the aforesaid two documents, which would be having a bearing on the trial itself, that could only be scrutinized when the same are taken as a defence by the revisionist after she complies the order of summoning made under Section 319 Cr.PC. The same cannot be scrutinized by this Court while exercising its revisional power under Section 397 to be read with Section 401 Cr.PC. Consequently, this Court declines to entertain the present criminal revision. The revision lacks merit and the same is accordingly dismissed.