The main legal point established in the judgment is the requirement of prima facie evidence to summon an accused for trial under Section 319 Cr.P.C., and the limited scope of criminal revision under Section 397 Cr.P.C.

JUDGMENT :

SURENDRA SINGH-I, J.

1. Heard Sri Dr. C.P. Upadhyay, Advocate assisted by Sri Santosh Kumar Mishra, learned counsel for the revisionist and Sri Alok Sharma, learned A.G.A.-I for the State.

2. This criminal revision has been filed challenging the impugned judgment and order dated 19.05.2023 passed by Additional Sessions Judge/ Fast Track Court No. 1, Maharajganj in S.T. No. 48 of 2017 (State vs. Vishambhar Patel and Others) arising out of Case Crime No. 672 of 2016 u/s 304 r/w 34, 506 I.P.C. Police Station-Kotwali, District- Maharajganj.

3. By the impugned order, the trial Court has allowed the application u/s 319 Cr.P.C. filed by opposite party no. 2/informant, Smt. Heera Devi and summoned revisionist/accused, Raju Patel for trial u/s 304 r/w 34, 506 I.P.C.

4. The prosecution case, in brief, is that informant, Smt. Heera Devi w/o late Gyanesh Yadav had submitted a written report on 10.12.2016 at 23.50 hours in Police Station- Kotwali, District- Maharajganj to the effect that she is original resident of village- Kashmariya, Police Station- Chowk, District-Maharajganj. On 10.12.2016, Vishambhar Patel s/o Bansidhar Patel of her village took her husband to Jhunjhunpur crossing. At about 8 p.m., her neighbour, namely, Durgesh Yadav received a call on his mobile from his co-villager Ganesh that some persons have assaulted and injured her husband. The informant along with co-villagers reached Jhunjhunpur crossing. There when she met P.W.2 Vijay Kumar Jaiswal of her village, then he informed her that accused, Vishambhar Patel, Santosh Patel, Raju Patel, Vimlesh and Bhunwar Patel assaulted and caused injury to her husband, and thereafter, they fled away from the place of occurrence. When she reached at the place of occurance along with co-villagers, she found that her husband was lying there groaning with pain. The villagers accompanying her called upon an ambulance 108 and carried her husband to District Hospital where after examination, the doctor declared that her husband had died.

5. It has been submitted by learned counsel for the revisionist that the trial Court has passed the impugned order without considering the evidence on record. It has next been submitted that the trial Court has passed the impugned order only on the basis of evidence of P.W.1 Smt. Heera Devi. The prosecution has examined P.W.1 Smt. Heera Devi, P.W.2 Vijay Kumar Jaiswal, P.W.3 Subhash Yadav and P.W.4 Durgesh Yadav out of which only P.W.2-Vijay Kumar Jaiswal is said to be an eye-witness and other witnesses have deposed that they came to know about the incident as told by P.W.2 Vijay Kumar Jaiswal. There is contradiction in the statement of witnesses with regard to weapon of offence used by the accused persons as well as who informed the informant about the occurrence, in which her husband received fatal injuries. It has also been submitted that in the First Information Report, it is mentioned that Ganesh Yadav informed the informant, Smt. Heera Devi about the incident whereas in her statement, she has deposed that Rajesh Yadav informed her about the occurrence in which her husband, Gyanesh was fatally assaulted. It has also been submitted that P.W.2 Vijay Kumar Jaiswal has stated that when he tried to save the injured/ deceased Gyanesh Yadav, accused also assaulted him but P.W.2 Vijay Kumar Jaiswal has not been medically examined and no injury report has been submitted. It has further been submitted that P.W.3 Subhash Yadav has not mentioned who informed him about the incident. P.W.4 Durgesh Yadav has stated that both Ganesh Yadav and P.W.2 Vijay Kumar Jaiswal informed him about the occurrence. Therefore, there is contradiction in the statement of witnesses regarding how they came to know about the incident.

6. Per contra, learned A.G.A. has opposed the criminal revision and has submitted that the trial court after considering the evidence on record as well as law laid down by the Hon’ble Supreme Court regarding summoning of persons u/s 319 Cr.P.C. who h