Point of Law : Evidence of an injured eye-witness has greater evidential value and unless compelling reasons exist, their statements are not to be discarded lightly. As observed hereinabove while exercising the powers under Section 319 Cr.P.C. the Court has not to wait till the cross-examination and on the basis of the examination-in-chief of a witness if a case is made out, a person can be summoned to face the trial under Section 319 Cr.P.C.

JUDGMENT :

RAJESH SINGH CHAUHAN, J.

1. Heard Sri. Vinod Kumar Pandey, learned counsel for the petitioners, Sri. Ran Vijay Singh, learned AGA for the State and Sri. Santosh Kumar Yadav “Warsi” learned counsel for opposite party no. 2.

2. Sri. Warsi has filed counter affidavit, the same is taken on record.

3. By means of this petition, the petitioners have assailed the order dated 22.10.2021 passed by the Additional Sessions Judge, Court No. 4, Sultanpur on the application under Section 319 Cr.P.C. in Sessions Trial No. 116 of 2015, State vs. Sachin and Others, arising out of Case Crime No. 307 of 2014, under Sections 302, 323, 504 and 506 IPC, Police Station Motigarpur, District Sultanpur by means of which the petitioners have been summoned in the aforesaid case.

4. Learned counsel for the petitioners has contended that the present petitioners were not charge sheeted but the learned trial court concerned while appreciating the statements of PW-1, Sudhakar Tiwari and PW-2 Durgesh Tiwari, the injured, who have indicated the involvement of the present petitioners in the incident in question, summoned the petitioners under Section 319 Cr.P.C. Learned counsel for the petitioners has drawn attention of this Court towards Annexure No. 7 and 8 to the petition, which are medical prescription/report of Atul Medical Care Centre situated at Saidkhanpur Road, Kotwa Sarak, Barabanki wherein it has been indicated that both the petitioners were admitted in the Hospital w.e.f. 21.10.2014; 09.40 P.M. to 25.10.2014; 01.40 P.M. Therefore, he has submitted that when the present petitioners were admitted in one private hospital, how can they be remain present at the place of incident on 23.10.2014. Not only the above, Doctor concerned i.e. Dr. Y.R. Singh has recorded his statement (Annexure No. 10) and verified and reiterated the same thing, which has been indicated in the medical certificate.

5. Therefore, on the basis of aforesaid facts and circumstances, learned counsel for the petitioners has submitted that this is a case where the present petitioners have been wrongly summoned under Section 319 Cr.P.C. He has also submitted that even in the statement recorded under Section 161 Cr.P.C. of both the aforesaid prosecution witnesses, they have not suggested that the present petitioners were present. However, while recording their statements before the court, they have named the present petitioners. So, the learned court below has committed manifest error of law and fact both in summoning the petitioners under Section 319 Cr.P.C. inasmuch as before issuing summon under the aforesaid section, plea of alibi of the present petitioners should have been considered. So as to strengthen the aforesaid argument, learned counsel for the petitioners has drawn attention of this Court towards a decision of the Apex Court in Brijendra Singh and Others vs. State of Rajasthan, 2017 (100) ACC 601, referring Paras 14 and 15 thereof. For the convenience, Paras 14 and 15 are being reproduced herein-below:

“14. When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 km. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other ev