Kanhaiya Chauhan vs State of U.P.

I.M. Quddusi, J.—This criminal revision has been filed against the order dated 2.8.1999 passed by learned Additional Sessions Judge (Ayodhya Prakaran), Lucknow in S.T. No. 317 of 1995 State v. Amit Kumar Saxena and Ors. holding that a prima facie case against the revisionist has been made out for framing of charge under Sections 147, 302/149, I.P.C.

The brief facts of the case are that two first information reports were lodged--one was registered as Case Crime No. 61 of 1994 State v. Kanhaiya Chauhan and after conclusion of the investigation, charge-sheet has been filed against the revisionist-Kanhaiya Chauhan along with other persons under Sections 147, 148, 149, 302 and 324, I.P.C. This first information report was lodged by Amit Kumar Saxena. The other F.l.R. was lodged by Prabhakar Agnihotri in respect of the same incident against unknown persons. Consequently, the investigation was concluded and a charge-sheet was filed against Amit Kumar Saxena and others being Cross Case Crime No. 61A of 1994 under Sections 147, 302, I.P.C. as one Punit Agnihotri alias Pappu son of the informant of the first information report was killed in the same incident. In the charge-sheet filed against Amit Kumar Saxena, the revisionist-Kanhaiya Chauhan has been shown as witness. Thus, the revisionist is an accused in Case Crime No. 61 of 1994 and a witness in Case Crime No. 61A of 1994. Both the cases were committed to the Court of Sessions and are pending In the Court of Addl. Sessions Judge (Ayodhya Prakaran), Lucknow. The charge-sheet filed in Case Crime No. 61 of 1994 gave rise to S.T. No. 651 of 1995 and charge-sheet filed in Case Crime No. 61A of 1994 gave rise to the S.T. No. 317 of 1995.

In S.T. No. 317 of 1995, the statement of P.W. (informant) Prabhakar Agnihotri was recorded on 2.4.1997 where, in the examination-in-chief, he has stated that Kanhaiya Chauhan-revisionist called his son (deceased) Pappu along with another boy and his son accompanied them as Kanhaiya Chauhan was a close friend of his son. When he did not come back, then he knocked the door of Kanhaiya Chauhan but nobody responded. In the meantime, one Sunder Tiwari (husband of the wife''s sister of the informant) came and informed that some persons had stabbed Pappy by knife at E-Sector, L.D.A. Colony and he has been injured as a telephone has been received by him from the Medical College and there is no hope of his survival. Thereafter, he immediately sent his brother-in-law to Medical College and he himself stayed there for making arrangements of money but in the meantime, Sunder Lal Tiwari came back and informed that Pappu has died and his body has been sent to mortuary. He has further stated that thereafter, Kanhaiya Chauhan-revisionist was called by inhabitants of the colony putting him under pressure and then he (revisionist) informed that there was some dispute between Shailendra Dubey and Punit alias Pappu. Pappu (deceased) was a man of good physique amongst us and five persons, namely, Amit, Guru Prasad, Naresh, Baldeo and Meghraj surrounded Pappu and inflicted knife injuries on him and due to fear, we ran away and Pappu remained lying there. P.W. 1 further informed that when he went to the police station, he was informed that other party had also lodged first information report for the same incident. At that stage of the trial ADGC (Crl.) has moved an application u/s 319, Code of Criminal Procedure for summoning Kanhaiya Chauhan-revisionist for facing trial and on this application of the ADGC (Crl.), the matter was heard on 22.4.1997 and the learned Addl. Sessions Judge concerned issued NBW, against the revisionist-Kanhaiya Chauhan and Ashish Kumar Srivastava fixing 8.5.1997 for their appearance. Thereafter, question of framing of charge had arisen. An application was moved on behalf of the revisionist which was decided by holding that as P.W. 1 has disclosed the name of the revisionist in his statement, hence, there is a prima facie case against him.

When this revision was filed this Court, mentioning the facts that the revisionist Kanhaiya Chauhan was already an accused in the cross case registered on the basis of the F.I.R. lodged by Amit Kumar Saxena who is an accused in the present case in which Kanhaiya Chauhan-revisionist is a witness and the learned Addl. Sessions Judge has not considered this fact, directed the learned Sessions Judge to look into the matter and submit his report. The learned Sessions Judge, Lucknow, has sent his report on 23rd September. 1999 in which, it has been stated that the explanation of the Presiding Officer was obtained who has informed that it appears that the file of S.T. No. 317 of 1995 was separately dealt with without reference to S.T. No. 651 of 1999 and since the Presiding Officer has passed a judicial order, this can only be set aside in revision and it appears that this situation has arisen because both the files were dealt with separately and the case diary was not carefully gone through.

This Court has gone through the entire facts and circumstances of the case and perused the case diary as well as lower court record including the statement of P.W. 1 Prabhakar Agnihotri. There are clearly two parties and Case Crime No. 61 of 1994 was registered on the basis of the report of Amit Kumar Saxena in which revisionist-Kanhaiya Chauhan is an accused. The other party is of Kanhaiya Chauhan-revisionist and others in which deceased-Pappu was also a member who was allegedly killed by Amit Kumar Saxena, the first informant of the cross case registered as Case Crime No. 61A of 1994 in which the present revisionist-Kanhaiya Chauhan is a material witness. There is no allegation on the record that revisionist-Kanhaiya Chauhan was involved in any conspiracy or participated in the murder or committed the offence of committing the murder of Pappu-deceased. It has come in the evidence that Kanhaiya Chauhan was a member of the party of Pappu-deceased. Hence, no other inference could have been drawn by learned Addl. Sessions Judge concerned. The prosecution version in both the cross cases are clear that P.W. 1 has not stated even a single word against Kanhaiya Chauhan which may involve him in the commission of offence in the case arising out of Case Crime No. 61A of 1994. In the statement recorded u/s 161, Code of Criminal Procedure also, there is no such statement and no inference can be drawn at this stage that Kanhaiya Chauhan was involved in any way to the commission of the crime alleged in the F.I.R. registered as Case Crime No. 61A of 1994. The learned Addl. Sessions Judge concerned has not perused the case diary carefully and has proceeded without any basis and in the absence of any evidence in this regard. The learned ADGC (Crl.) has also not cared that by moving such an application and pursuing the matter against the prosecution version would weaken the case of the prosecution as the prosecution would lose a material witness shown in the charge-sheet and also by making him (Kanhaiya Chauhan) co-accused with other accused without availability of any evidence, would certainly strengthen the case of other co-accused of Case Crime No. 61A of 1994 and by their mishandling and non-putting the case of prosecution properly, the real culprits may get benefit of the same and thus there would be likelihood that proper justice may not be given.

In the result, the revision is allowed. The order dated 2.8.1999 framing charge against the revisionist-Kanhaiya Chauhan alone in S.T. No. 317 of 1995 State v. Amit Kumar Saxena, passed by learned Addl. Sessions Judge (Ayodhya Prakaran), Lucknow, is set aside. This Court has also noticed that original summoning order against the revisionist-Kanhaiya Chauhan passed on 22.4.1997 is also bad in law and this Court is compelled to set aside that order also in the interest of justice. Hence, the order dated 22.4.1997 is also set aside and the learned Addl. Sessions Judge concerned is directed to proceed further in accordance with law treating the revisionist-Kanhaiya Chauhan as witness shown in the charge-sheet unless any evidence comes on record that the revisionist-Kanhaiya Chauhan was involved in the commission of the offence by way of hatching conspiracy or otherwise for committing the murder of Punit Agnihotri alias Pappu (deceased).

It is, however, made clear that learned Addl. Sessions Judge concerned will take appropriate decision independently without being influenced by any of the observations made above by this Court.

The lower court record be sent back along with copy of this order at the earliest.