Shiv Prakash Mishra vs The State Of Uttar Pradesh

3. Brief facts which led to filing of this appeal are as under:- 1

4. Case 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 3 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. 4

12. 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 10 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 11 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.

15. The 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 13 substantial ground is made out warranting interference and the appeal is liable to be dismissed.

16. In the result, the appeal is dismissed. The trial court shall proceed with the trial in S.T. No.26 of 2015 in accordance with law. We make it clear that the findings of this Court in this appeal and the High Court in the revision shall be construed only for the purpose of consideration of the appeal and revision respectively and the same shall not be construed as expression of opinion on the merits of the main case.

July 23, 2019 14