Case: SHIV PRAKASH MISHRA Vs. STATE OF UTTAR PRADESH AND ANOTHER

As per the complaint lodged by complainant-Shiv Prakash Mishra (PW-1), on 06.09.2013 at about 09.00 am, respondent No.2-Subhash Chandra Shukla along with other accused viz. Sashendra Shukla, Devender Shukla, Lakshmi Kant Shukla and Rahul Shukla formed themselves into an unlawful assembly and came to the house of complainant and started abusing him due to old enmity. The elder brothers of the complainant namely Sangam Lal Mishra and Sunil Kumar Mishra who were living in the opposite house came out and tried to forbade the accused from abusing. On this, accused Sashendra Shukla fired from the pistol in his hand with intention to kill Sunil Kumar Mishra. Other accused beat Sangam Lal Mishra with lathi and dandas while the second respondent is alleged to have strongly attacked the deceased Sangam Lal Mishra on his head with the butt of home made pistol (katta). Deceased Sangam Lal Mishra and Sunil Kumar Mishra sustained injuries and fell down. During treatment, Sangam Lal Mishra succumbed to injuries. The incident was witnessed by PW-2-Anand Kumar Mishra, Dev Narain Mishra and the complainant. Shiv Kumar Mishra-complainant (PW-1) lodged the complaint before the Police Station, Meja at 18.15 hours on the same day i.e. 06.09.2013. Based on the complaint, FIR No.275/2013 was registered in Case Crime No.328A/2013 against five accused persons viz. Subhash Chandra Shukla, Sashendra Shukla, Rahul Shukla, Lakshmi Kant Shukla and Devender Shukla under Sections 147, 148, 149, 302, 307, 323 and 504 IPC. Investigation of the case was taken up by the police of the concerned police station. As per the government order, the investigation of the case was transferred to C.B.C.I.D. C.B.C.I.D. which took up the investigation, examined number of persons at the office of second respondent and filed charge sheet No.13/2014 on 19.09.2014 only against three accused persons namely Sashendra Shukla, Devender Shukla and Laxmi Kant Shukla. Upon further investigation, subsequently on 15.10.2014, a supplementary charge sheet No.13A/2014 was filed against accused RahulCase was committed to the Sessions Court and charges were framed in Sessions Trial No.1329/2014. The trial was commenced in or about August, 2016. The witnesses namely Shiv Prakash Mishra (PW-1), Anand Kumar Mishra (PW-2) and Sunil Kumar Mishra (PW-3) were examined. On 03.10.2017, PW-1-Shiv Prakash Mishra filed a petition under Section 319 Cr.P.C. to implead the second respondent-Subhash Chandra Shukla as an accused. The trial court vide order dated 28.08.2018 dismissed the application filed under Section 319 Cr.P.C. observing that there are contradictions in the statement of Shiv Prakash Mishra (PW-1) and the statement of Anand Kumar Mishra (PW-2) as to the role of the second respondent. The trial court held that the presence of the proposed accused Subhash Chandra Shukla at the place of work at District Mirzapur has been verified and the same has also been corroborated with the statement of the complainant and presence of the second respondent in the scene of occurrence is highly doubtful. The trial court placed reliance upon Brijendra Singh and others v. State of Rajasthan (2017) 7 SCC 706.  The revision petition preferred by the complainant before the High Court was also dismissed on the ground that there are no materials on record to summon respondent No.2 as an accused. Being aggrieved, the complainant is before us.

Reasoning:
By reading of Section 319 Cr.P.C., it is clear that the power under Section 319 Cr.P.C. can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such person could be tried together with the accused.The standard of proof employed for summoning a person as an accused person under Section 319 Cr.P.C. is higher than the standard of proof employed for framing a charge against the accused person. The power under Section 319 Cr.P.C. should be exercised sparingly. As held in Kailash v. State of Rajasthan and another (2008) 14 SCC 51 , ?the power of summoning an additional accused under Section 319 Cr.P.C. should be exercised sparingly. The key words in Section are ?it appears from the evidence?….?any person?….?has committed any offence?. It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 Cr.P.C. would be used by the court.The above view was followed in Brijendra Singh asIn order to answer the question, some of the principles enunciated in Hardeep Singh case (2014) 3 SCC 92   may be recapitulated: ….. However, since it is a discretionary power given to the court under Section 319 CrPC and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrant. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge-sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.In the light of the above principles, considering the present case, having regard to the contradictory statements of the witnesses and other circumstances, in our view, the trial court and the High Court rightly held that respondent No.2 cannot be summoned as an accused. The FIR in Case Crime No.328A/2013 was registered on 06.09.2013 at 18.15 hours. The name of second respondent is no doubt mentioned in the FIR and overt act is attributed to him. It is clear from the record that during the course of investigation, the Investigating Officer recorded the statements of witnesses namely Rajesh Kumar, Nizamuddin, Nand Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other seven witnesses who have stated that respondent No.2 was not present at the place of occurrence at the time of the incident. The Investigating Officer has also recorded the statement of one Shiv Kumar Gupta and Sandeep Gupta who are working in the same office in which respondent No.2 was employed who had stated that respondent No.2 was in the office at the time of incident. Based on the statements recorded from the witnesses, the Investigating Officer found that the second respondent was posted on the post of Junior Engineer in the Bridge Construction Unit of Bridge Corporation, Lucknow and he usually resided there and on 06.09.2013, he was present at his workplace and discharging his official duties. Based on the materials collected during the investigation, the Investigating Officer recorded the finding that on the date and time of incident, Subhash Chandra Shukla was not present at the place of occurrence. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge sheet was filed on 19.09.2014. The supplementary charge sheet was filed against Rahul Shukla on 15.10.2014. Though the name of second respondent was mentioned in the FIR, during investigation, it was thus found that the second respondent was not present in the place of incident and on the basis of the findings of the Investigating Officer, he was not charge sheeted. Be it noted that the appellant-complainant has not filed any protest petition then and there. During investigation, when it was found that the accused was not present at the place of incident, the courts below were right in refusing to summon respondent No.2 as an accused.As pointed out by the trial court, PW-1 was examined on various dates from 22.10.2016 to 02.08.2017 and examined on nine hearing dates. Though, in his chief-examination on 22.10.2016, PW-1 has stated about the presence of Subhash Chandra Shukla and attributing overt act to him that he had beaten the deceased Sangam Lal Mishra with butt of home made pistol, on 28.02.2017, PW-1 in his cross-examination stated that Subhash Chandra Shukla was on duty at that time. The relevant portion of the statement of PW-1 reads asChandra Shukla does not live in the house. He does service/job. At the same time in Jigna Police Station District Mirjapur he was making bridge and due to this reason, he was on dutypointed out by the trial court and the High Court, PW-1 has made contradictory statements in the course of his examination in connection with the presence of Subhash Chandra Shukla.Anand Kumar Mishra (PW-2) has been examined who is stated to be the eye witness. PW-2 has been working as Assistant Teacher (Shiksha Mitra). His duty time is from 07.00 am till 12.00 noon. PW-2 though stated that he was on leave on the date of occurrence i.e. 06.09.2013, the trial court expressed doubts about his presence at the time of occurrence. Considering the fact that PW-2 is working as a teacher and that PW-2 is a co-accused in the cross case, the trial court and the High Court expressed doubts about the evidence of PW-2 as to the presence of the second respondent. The evidence brought on record during trial does not prima facie show the complicity of respondent No.2 in the occurrence and the High Court was justified in refusing to summon respondent No.2 as anThe High Court and the trial court concurrently held that the materials brought on record are not sufficient to summon the second respondent as an accused in the present case. No substantial ground is made out warranting interference and the appeal is liable to be dismissed.