Court No. - 90

Case :- CRIMINAL REVISION DEFECTIVE No. - 370 of 2021

Revisionist :- Smt Shubhavati Devi And Another

Opposite Party :- State of U.P. and Another

Counsel for Revisionist :- Dashrath Lal

Counsel for Opposite Party :- G.A.

Hon'ble Dinesh Pathak,J.

Heard learned counsel for the revisionists, learned A.G.A. for the State and

perused the record.

The instant revision has been preferred to set-aside the impugned order dated

29.02.2020 passed by the Additional Sessions Judge, Ballia in Sessions Trial

No. 28 of 2018 (State Versus Shiv Kumar Pandey and Others) arising out of

Case Crime No. 938 of 2017 under Sections 147, 452, 323, 504, 308, 304 I.P.C.,

Police Station Rasara, District Ballia whereby the application filed by the

opposite party no. 2 under Section 319 Cr.P.C. has been allowed.

As per the prosecution case, on 3.9.2017 between 7 - 8 a.m., some dispute

occurred between the informant/opposite party no. 2 and the revisionist and their

family members with regard to grazing of her cows. Thereafter, the revisionists

herein along with their family members barged into the house of the informant

with sticks, used abusive language and assaulted the informant and her family

members with an intention to kill them, as a result, her husband and daughters

sustained grievous injuries. Thereafter, she took to her husband and daughters to

the hospital at Rasda from where her husband was referred to the District

Hospital, Ballia. After few days of the incident, her husband succumbed to the

injuries. After due investigation, the investigating officer has submitted charge-

sheet arraigning only three persons as accused and exonerated five persons

including the present revisionists. Feeling aggrieved, informant has moved an

application under Section 319 Cr.P.C. to summon the present revisionists which

has been allowed by the impugned order dated 29.2.2020.

Learned Trial Court has allowed the aforesaid application (29 Kha) after

considering the deposition of PW-1 - Smt. Urmila Devi, who has specifically

stated that the present revisionists along with other accused, have beaten them

with sticks, which has been supported by P.W. 2 - Gudiya (daughter of P.W.1)

and found it to be a fit case to summon the present revisionists.

Learned counsel for the revisionist has submitted that mere prima facie

involvement of the accused in the commission of crime, as observed by the court

below, is not sufficient to summon them, rather there should be a much stronger

evidence than mere probability of his complicity.

A perusal of the order reveals that the Trial Court has given its finding after

taking into consideration the documents available on record. Present revisionists

were made as accused in the F.I.R. with an allegation that they had played active

role in attacking the informant and her family members.

The deposition made by PW-1 in her examination-chief and the statement made

by P.W. 2 on oath have clearly corroborated the complicity of the present

revisionists in the commission of crime, as mentioned in the first information

report.

In Hardeep Singh Vs. State of Punjab and others 2014 (3) SCC 92, Court

examined following five questions:

"(i) What is the stage at which power under Section 319 Cr.P.C. can be

exercised?

(ii) Whether the word "evidence" used in Section 319 (1) Cr.P.C. could only

mean evidence tested by cross-examination or the court can exercise the power

under the said provision even on the basis of the statement made in the

examination-in-chief of the witness concerned?

(iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used

in a comprehensive sense and includes the evidence collected during

investigation or the word "evidence" is limited to the evidence recorded during

trial?

(iv) What is the nature of the satisfaction required to invoke the power under

Section 319 Cr.P.C. to arraign an accused? Whether the power under Section

319(1) Cr.P.C. ca