Reserved Judgment 

IN THE HIGH COURT OF UTTARAKHAND  AT NAINITAL 

Criminal Revision No.218 of 2021 

Jagbir Singh …..Revisionist 

 Versus 

State of Uttarakhand & Another ..…Respondents 

Ms. Manisha Bhandari, learned counsel for the revisionist. Mr. Atul Sah, learned Deputy Advocate General for the State of  Uttarakhand. 

Mr. Siddhartha Sah, learned counsel for the private  respondent/complainant. 

 Judgment Reserved on: 09.03.2022 

Judgment Delivered on: 16.03.2022 

JUDGMENT 

NARAYAN SINGH DHANIK, J. 

The present Criminal revision has been  preferred against the order dated 23.08.2021, passed by the First Additional Sessions Judge, Udham Singh Nagar, whereby the application  under Section 319 of the Code of Criminal  Procedure, moved by the prosecution, has been  allowed and the revisionist has been summoned  by the trial court as an accused to face trial along  with other accused persons for the offences under 

Sections 147, 148, 307, read with Section 149  IPC and Section 302 read with Section 149 IPC. 

2. Facts, in brief, of the case are that on  07.01.2018, respondent no. 2 Angrez Singh  lodged an FIR against six persons with the  averments that his father was murdered on  17.07.2015 and he was the informant in the said  case and the accused persons were exerting  pressure to enter into compromise and settle the  dispute. Because of this enmity, at about 1:15 PM  on 07.01.2018, when the said respondent, his  cousin brothers Daljeet Singh and Rajvender  Singh, and his relatives Kuldeep Singh and  Harvansh Singh were participating in a Nagar  Kirtan in Sitarganj, the accused persons, armed  with sharp-edged weapons, lathis and dandas and pistols, attacked the complainant, his  brothers and relatives. In the said incident,  Daljeet Singh and Harvansh Singh died at the  spot and Rajvender Singh suffered serious  injuries. 

3. After investigation, police submitted the  charge sheet and thereafter trial commenced  against the accused persons. On 25.06.2019,  examination-in-chief of the complainant  (respondent no.2) was recorded but the same  could not be completed because of the poor 

health of the witness and it was deferred to  16.07.2019 at the request of prosecution. The  examination-in-chief of the complainant resumed  on 16.07.2019, but the same again could not be  completed on that day as the court time was over.  On 25.11.2019, while recording further  examination-in-chief of the complainant, a CCTV  footage, collected during investigation by the  police which was captured in the CCTV cameras  installed at the shops situated near the place of  occurrence, was played before the trial court.  After watching the said CCTV footage, the  complainant, inter alia, identified the presence of  the present revisionist at the place of incident and narrated his role in the alleged crime. The  complainant further stated that at one point of  time, he is being seen doing hathapai with Daljeet  Singh (deceased) and Rajvender Singh (injured).  In yet another scene of the said CCTV footage, the  revisionist was seen making exhortation to the  other accused persons to attack Daljeet Singh  and Rajvender Singh. 

4. After the above deposition of the  complainant (PW1), the prosecution moved an  application to summon the revisionist as an  additional accused under Section 319 Cr.P.C. and  the same was allowed by the trial court vide  impugned order, as stated hereinabove.

5. Heard learned counsel for the parties  and perused the material available on the record. 

6. Ms. Manisha Bhandari, learned counsel  for the revisionist, contended that the court below  has committed grave error of law by summoning  the revisionist as an accused inasmuch as the  complainant, who claims to be an eyewitness of  the alleged incident, did not assign any role to the  revisionist in the FIR. During the course of  investigation as well, the name of the revisionist  as an assaulter did not surface. After  commencement of the trial, on 25.06.2019 and on  16.07.2019, the complainant did not make any  allegation against the revisionist in his  examination-in-chief. It was only after seeing the  CCTV footage on 25.11.2019, the complainant  made serious allegations that it was on the  exhortation of the revisionist that the accused  persons committed the crime and killed Harvansh  Singh and Daljeet Singh and inflicted injuries to  others. Learned counsel for the revisionist argued  that in the above facts and circumstances, it was  totally illegal on the part of the trial court to  summon the revisionist under Section 319  Cr.P.C. on the basis of the deposition made by the  complainant in his examination-in-chief. Learned  counsel for the revisionist contended that it is 

clear that the complainant tried to develop a  completely new story after watching the said  CCTV footage, which is without audio. Learned  counsel further contended that had the  complainant been an eye-witness of the alleged  incident, which he claims, he would have taken  the name of the revisionist in the FIR itself.  

7. Learned counsel for the revisionist  contended that the said CCTV footage is without  audio and the PW1 tried to develop a new story of  exhortation. Learned counsel contended that from  the stills of the said CCTV footage and from the  gesture of the revisionist, it cannot be concluded  that the revisionist was instigating or exhorting  the other accused persons to commit the alleged  crime. The complainant made allegations against  the revisionist after almost 19 months of the  alleged incident and there is material  contradiction in the deposition of PW1. Learned  counsel further contended that presence of the  revisionist, even if admitted, at the place of  occurrence does not connect the revisionist with  the alleged crime. Prosecution will have to prove  and establish a more than prima facie case and  that the revisionist was voluntarily a member of  unlawful assembly and he knew the intention of  said unlawful assembly which resulted into the  alleged crime.

8. Mr. Siddhartha Sah, learned counsel for  the respondent/complainant, argued that  presence of the revisionist at the place of incident  is not denied and it is also quite clear that the  revisionist was seen doing hathapai with Daljeet  Singh and Rajvender Singh. Revisionist was also  seen making exhortation to other accused to  commit the crime. PW1, who is an eyewitness,  has identified the revisionist and has deposed  against him. Motive to commit the alleged crime  is also proved. Learned counsel further argued  that as regards not naming the revisionist in the  FIR, it is a settled law that FIR is not an  encyclopedia of all facts and figures of the case.  Learned counsel submitted that a more than  prima facie case of the complicity of the  revisionist in the crime is made out and there is  no jurisdictional error committed by the trial  court in summoning the revisionist as an  additional accused as there exists a strong and  cogent evidence against the revisionist. 

9. Learned counsel for the complainant  further argued that the scope of revisional power  of this court under Section 397 Cr.P.C. is limited  and detailed appreciation of facts and evidence is  not open in the revision. In this regard, learned  counsel relied upon a judgment rendered by the 

Hon’ble Apex Court in the case of Sheonandan  Paswan Vs State of Bihar & Others, (1987) 1 SCC  288. 

10. Learned Counsel for the revisionist and  learned Counsel of the complainant/respondent  no. 2, both have relied upon a precedent rendered  by a Constitutional Bench of Hon’ble Apex Court  in Hardeep Singh v. State of Punjab & Others,  reported in (2014) 3 SCC 92. 

11. Undoubtedly, Section 319 CrPC  empowers the Trial Judge to summon any other  accused person, if his complicity is reasonably  appear to be involved. In paragraph 106 of the  aforementioned judgment, the test laid down by  the Hon’ble Apex Court is as under: 

“Thus, we hold that though only a  prima facie case is to be established from the  evidence led before the court, not necessarily  tested on the anvil of cross-examination, it  requires much stronger evidence than mere  probability of his complicity. The test that  has to be applied is one which is more than  prima facie case as exercised at the time of  framing of charge, but short of satisfaction to  an extent that the evidence, if goes  unrebutted, would lead to conviction. In the  absence of such satisfaction, the court 

should refrain from exercising power under  Section 319 Cr.P.C. In Section 319 Cr.P.C  the purpose of providing if “it appears from  the evidence that any person not being the  accused has committed any offence” is clear  from the words “for which such person could  be tried together with the accused”. The  words used are not “for which such person  could be convicted”. There is, therefore, no  scope for the court acting under Section 319  Cr.P.C. to form any opinion as to the guilt of  the accused.” 

12. Therefore, it is amply clear that in order  to exercise the power under Section 319 Cr.P.C.,  a case more than prima facie, but short of  satisfaction to an extent that evidence if goes  unrebutted would lead to conviction, must have  been there. Now, on this anvil, if I just have a  glance on the backdrop of the controversy and in  the light of animosity persisting between the  parties, and the deposition of the PW1, who is  complainant as well as an eyewitness of the  incident and who identified the revisionist in the  CCTV footage and stated his role in the alleged  crime, then I am of the opinion that the trial court  has not committed any error in summoning the  revisionist to face trial like other accused persons. 

Hon’ble Apex Court has approved of relying upon 

deposition which has not suffered cross examination for the purpose of invoking Section  319 Cr.P.C. 

13. The upshot of the above discussion is  that a more than prima facie case has been made  out against the revisionist to invoke Section 319  of the Cr.P.C. and summon him as an additional  accused to face the trial. Learned counsel for the  revisionist failed to show that the revisionist has  been summoned in casual and cavalier manner.  Hence, I find no reason to interfere with the  impugned order. 

14. Consequently, the present Criminal  Revision fails and is hereby dismissed. Interim  order, if any, stands vacated. 

15. It is made clear that any observation  made by this Court is only for the purpose of  deciding the present revision and the same shall  not prejudice the trial court in any manner. 

_____________ 

N.S. DHANIK, J. 

RV

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