# Avanish @ Kallu Revisionist v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-01
- **Case number:** Criminal Revision No. 5458 of 2023
- **Bench:** Manoj Baja
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/avanish-kallu-revisionist-v-state-of-u-p-anr-49407
- **Pages:** 5

## Headnote

Law
-
Code
of
Criminal
Procedure, 1973 - Section 319 - Indian
Penal Code, 1860 - Sections 147, 148,
149, 302, 307, 452, 504 - Summoning of
Additional Accused - Revisional Jurisdiction -
Evidence in Trial - Prima Facie Case -

The revisionist, Avanish @ Kallu, challenged the
order
dated
20.07.2023
passed
by
the
Additional Sessions Judge, Court No. 2, Kasganj,
summoning him as an additional accused under
Section 319 Cr.P.C. in Sessions Trial No. 316 of
2022, arising from Case Crime No. 291 of 2021,
under Sections 147, 148, 307/149, 302/34, 452,
504 I.P.C. The FIR, lodged by complainant
Ramanpal Singh, alleged that six accused,
including the revisionist, armed with firearms,
entered his house, abused his family, and fired
shots, resulting in the death of his son Yashveer
and injury to Pushpendra, motivated by enmity
from a prior election. The Investigating Officer's
final report under Section 173(2) Cr.P.C.
excluded the revisionist, declaring him innocent,
but during the trial, prosecution witnesses
(P.W.-1 Ramanpal Singh, P.W.-2 Pushpendra,
and P.W.-3 Jaspal) implicated him, leading to
his summoning under Section 319 Cr.P.C. The
revisionist argued that the initial telephonic
information to the police did not name him, the
Investigating Officer found him innocent, and
the trial court exceeded its jurisdiction. The St.
contended that the trial court's order was based
on credible witness testimonies establishing the
revisionist's involvement. Held: (1) The criminal
revision was dismissed, upholding the trial
court's order. (2) Section 319 Cr.P.C. empowers
the trial court to summon additional accused if
evidence during trial suggests their involvement,
requiring a standard stronger than a prima facie
case for framing charges but short of conviction
certainty, as per Hardeep Singh Vs St. of
11 All. Avanish @ Kallu Vs. State of U.P. & Anr.
123
Punjab. (3) The complainant's FIR and the
St.ments of P.W.-2 Pushpendra under Section
161 Cr.P.C. specifically named the revisionist,
and trial testimonies of three witnesses,
subjected to cross-examination, prima facie
established his involvement. (4) The omission of
the revisionist's name in the initial telephonic
information was immaterial, as his alias "Kallu"
phonetically
resembled
"Fallu"
mentioned
therein, and the FIR explicitly included him. (5)
The revisionist's plea of alibi, based on call
detail records, was insufficient to negate his
involvement, as the onus to prove alibi lies on
the accused. (6) The trial court's order was
based on careful appreciation of evidence and
did not suffer from illegality or impropriety,
warranting no interference under revisional
jurisdiction.

Case Law Cited:

## Text

122 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent/first defendant after 7.2.2007 or
not,
her
marriage
to
the
first
respondent/first defendant on 7.2.2007 has
conferred a right upon her to live in the
shared household. Therefore, the question
as to whether the applicant/plaintiff ever
lived in the shared household at any point
of time during the period from 7.2.2007 to
13.6.2007 or not, is of little significance."

31. In the present case, it is an
admitted position that the aggrieved person
i.e. opposite party no.2 lived with the
revisionist earlier, therefore, offence under
the provisions of D.V. Act will make out
against the revisionist and the opposite
party no.2 has every right to seek relief
under the provisions of D.V. Act at any
stage. As such, this Court has not found any
substance in the submissions made by the
learned counsel for the revisionist that
since she is living separately from the
revisionist, she is not entitled to any relief
under the provisions of D.V. Act.

32. Resultantly, this Court finds no
illegality or infirmity in the orders passed
by the Courts below so as to warrant any
interference by this Court under Sections
397/401 Cr.P.C.

33. The present criminal revision
lacks merit and is accordingly dismissed.

34. There shall be no orders as to
costs.
----------
(2023) 11 ILRA 122
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.11.2023
BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Criminal Revision No. 5458 of 2023

Avanish @ Kallu ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Rajeev Kumar, Sri Prashant Yadav

Counsel for the Opposite Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 319 - Indian
Penal Code, 1860 - Sections 147, 148,
149, 302, 307, 452, 504 - Summoning of
Additional Accused - Revisional Jurisdiction -
Evidence in Trial - Prima Facie Case -

The revisionist, Avanish @ Kallu, challenged the
order
dated
20.07.2023
passed
by
the
Additional Sessions Judge, Court No. 2, Kasganj,
summoning him as an additional accused under
Section 319 Cr.P.C. in Sessions Trial No. 316 of
2022, arising from Case Crime No. 291 of 2021,
under Sections 147, 148, 307/149, 302/34, 452,
504 I.P.C. The FIR, lodged by complainant
Ramanpal Singh, alleged that six accused,
including the revisionist, armed with firearms,
entered his house, abused his family, and fired
shots, resulting in the death of his son Yashveer
and injury to Pushpendra, motivated by enmity
from a prior election. The Investigating Officer's
final report under Section 173(2) Cr.P.C.
excluded the revisionist, declaring him innocent,
but during the trial, prosecution witnesses
(P.W.-1 Ramanpal Singh, P.W.-2 Pushpendra,
and P.W.-3 Jaspal) implicated him, leading to
his summoning under Section 319 Cr.P.C. The
revisionist argued that the initial telephonic
information to the police did not name him, the
Investigating Officer found him innocent, and
the trial court exceeded its jurisdiction. The St.
contended that the trial court's order was based
on credible witness testimonies establishing the
revisionist's involvement. Held: (1) The criminal
revision was dismissed, upholding the trial
court's order. (2) Section 319 Cr.P.C. empowers
the trial court to summon additional accused if
evidence during trial suggests their involvement,
requiring a standard stronger than a prima facie
case for framing charges but short of conviction
certainty, as per Hardeep Singh Vs St. of
11 All. Avanish @ Kallu Vs. State of U.P. & Anr.
123
Punjab. (3) The complainant's FIR and the
St.ments of P.W.-2 Pushpendra under Section
161 Cr.P.C. specifically named the revisionist,
and trial testimonies of three witnesses,
subjected to cross-examination, prima facie
established his involvement. (4) The omission of
the revisionist's name in the initial telephonic
information was immaterial, as his alias "Kallu"
phonetically
resembled
"Fallu"
mentioned
therein, and the FIR explicitly included him. (5)
The revisionist's plea of alibi, based on call
detail records, was insufficient to negate his
involvement, as the onus to prove alibi lies on
the accused. (6) The trial court's order was
based on careful appreciation of evidence and
did not suffer from illegality or impropriety,
warranting no interference under revisional
jurisdiction.

Case Law Cited:

1. Hardeep Singh Vs St. of Punjab & ors., 2014
(1) R.C.R. (Criminal) 623

2. Labhuji Amratji Thakor & ors. Vs St. of Guj. &
anr., (2019) 12 SCC 644

(Delivered by Hon'ble Manoj Bajaj, J.)

1. Avanish @ Kallu-Petitioner has
filed this criminal revision to challenge the
order dated 20.7.2023 passed by Additional
Sessions Judge, Court No.2, Kasgganj,
whereby he has been summoned as an
additional accused under Section 319 Code
of Criminal Procedure in Sessions Trial
No. 316 of 2022, titled State Vs.
Dharmendra and others, arising out of
Case Crime No. 291 of 2021, under
Sections 147, 148, 307/149, 302/34, 452,
504
I.P.C.,
Police
Station Amapur,
District Kasganj.

2. The above F.I.R. was registered
on the basis of a written complaint given
by complainant-Ramanpal Singh, wherein
it is alleged that his son namely, Ram
Kumar
is
the
Sarpanch
of
Gram
Panchayat, who had defeated Vinod S/o
Revati in elections, and for this, the said
candidate was nurturing a grudge against
the complainant's son. Dharmendra S/o
Munna had lodged a false case under
Section
307
I.P.C.,
whereupon
on
4.12.2021, the police had taken the
complainant's son in custody. On the
same
day,
the
co-villagers
of
complainant,
namely,
Dharmendra,
Satendra both sons of Munna, Kuldeep
S/o Vinod, Pushpendra S/o Jugendra,
Vinod S/o Revati, Avanish @ Kallu S/o
Yuvraj residents of Gadedepur Sarset
armed with fire-arm weapons entered his
house and started abusing complainant
and others. When Yashveer asked them
not to do so, then Dharmendra, Kuldeep,
Pushpendra, Vinod, Satendra and Avanish
@ Kallu started firing upon Yashveer
with an intention to kill him and the gun
shot fired by Dharmendra hit on the chest
of Yashveer. When Pushpendra @ Kare
S/o Rajendra Singh, Jaspal Singh S/o
Chandrapal Singh came on the spot to
rescue
the
complainant's
son,
then
Dharmendra and others fired at them,
who saved themselves by taking shelter
behind a pillar, however, gun shot fired
by Kuldeep hit Pushpendra. At the time
of occurrence, the complainant was not at
home and in respect of the incident the
villagers
had
already
given
the
information to the police. On these broad
allegations,
the
above
F.I.R.
was
registered against six accused persons,
for the alleged commission of offences
punishable under Sections 147, 148, 149,
452, 307, 302, 504 I.P.C.

3. After registration of the above
F.I.R., the investigation was carried out
and upon completion of the same, a final
report under Section 173(2) Cr.P.C. was
submitted before the concerned Magistrate
and as per the said report, only five accused
124 INDIAN LAW REPORTS ALLAHABAD SERIES
persons were sent to face trial, whereas
accused Avanish @ Kallu was declared
innocent.

4. After commencement of trial, the
prosecution
examined
three
witnesses
namely, P.W.-1 Ramanpal Singh, P.W.-2
Pushpendra
and
P.W.-3
Jaspal
and
thereafter, the prosecution moved an
application under Section 319 Cr.P.C. for
summoning the petitioner as an additional
accused.

5. The trial court after considering the
evidence recorded during trial proceeded to
accept the application vide order dated
20.7.2023 and summoned the petitioner as
an additional accused. Hence, this criminal
revision petition.

6. Learned counsel for the petitioner
submits that the petitioner has been
erroneously summoned by the trial court,
because the final report submitted by the
Investigating Officer clearly establishes
that the petitioner was not present at the
spot. He further submits that the first
version in respect of the occurrence was
conveyed to the police telephonically at
number 112, wherein, only four names i.e.
Vinod, Fallu, Kuldeep and Dharmendra are
mentioned and the petitioner is not named
in the said information. He submits that
trial court has exceeded its jurisdiction in
exercising the powers under Section 319
Cr.P.C., therefore, interference is warranted
by this Court in exercise of revisional
jurisdiction.

7. Sri Yogendra Singh, learned A.G.A.
for the State has argued that the trial court
has examined the material on record
carefully and the evidence of eye witnesses
has clearly suggested the involvement of
petitioner
in
the
alleged
occurrence.
According to him, the impugned order is
based upon proper appreciation of material
on record, therefore, he prays that the
revision petition be dismissed.

8. Learned counsel for the parties
have been heard and with their assistance
case file has been perused.

9. Before adverting to the merits of
the case, this Court deems it appropriate to
analyze Section 319 Cr.P.C. and the same
reads as under:-

319. Power to proceed against
other persons appearing to be guilty of
offence.

(1) Where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any person
not being the accused has committed any
offence for which such person could be
tried together with the accused, the Court
may proceed against such person for the
offence
which
he
appears
to
have
committed.

(2) Where such person is not
attending the Court, he may be arrested or
summoned, as the circumstances of the case
may require, for the purpose aforesaid.

(3) Any person attending the
Court, although not under arrest or upon a
summons, may be detained by such Court
for the purpose of the inquiry into, or trial
of, the offence which he appears to have
committed.

(4) Where the Court proceeds
against any person under sub- section (1),
then-

(a) the proceedings in respect of
such person shall be commenced a fresh,
and the witnesses re- heard;

(b) subject to the provisions of
clause (a), the case may proceed as if such
person had been an accused person when
11 All. Avanish @ Kallu Vs. State of U.P. & Anr.
125
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced.

10. A careful reading of the above
shows that an extraordinary power has been
vested with the trial court to summon any
person as an additional accused, during the
pendency of the trial, if the evidence on
record suggests the involvement of such
person, who was not sent to face the trial.
The above provision has been analyzed on
number of occasions by Hon'ble Apex
Court, and here it will be useful to refer to
the decision of "Hardeep Singh Vs. State
of Punjab and others" 2014 (1) R.C.R.
(Criminal) 623, wherein the following
observations were made:-

99. 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 CrossExamination, 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."

11. The above said judgment was
again followed in "Labhuji Amratji
Thakor and others Vs. State of Gujarat
and another, (2019) 12 SCC 644," wherein
following observations were made:-

"The High Court does not even
record any satisfaction that the evidence on
record as revealed by the statement of
victim and her mother even makes out a
prima facie case of offence against the
appellants. The mere fact that Court has
power under Section 319 Cr.P.C to proceed
against any person who is not named in the
FIR or in the charge sheet does not mean
that whenever in a statement recorded
before the Court, name of any person is
taken, the Court has to mechanically issue
process under Section 319 Cr.P.C. The
Court has to consider substance of the
evidence, which has come before it and as
laid down by the Constitution Bench in
Hardeep Singh (supra) has to apply the
test, i.e."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."

12. Now, while reverting to the facts
of the case in hand and considering the
material on record, this Court finds that the
alleged occurrence took place in the house
of complainant-Ramanpal Singh, wherein,
his son Yashveer died of gun shot injury
and Pushpendra was injured, and the case
of the prosecution is based upon the
evidence
of
eye
witnesses.
While
examining the first argument raised by
learned counsel for petitioner that in the
initial information delivered to police
telephonically on number 112 only four
names
i.e.
Vinod,
Fallu,
Kuldeep,
Dharmendra were mentioned, wherein the
name of the petitioner is missing, therefore,
126 INDIAN LAW REPORTS ALLAHABAD SERIES
it would clearly show that the petitioner
was not involved in the alleged occurrence,
is without any merit. According to the
F.I.R., six accused persons were involved in
the crime and a perusal of it shows that the
name of the petitioner is specifically
mentioned by the complainant. Further,
during the course of hearing, it is also not
disputed by learned counsel for the
petitioner that in the statement of injured
Pushpendra recorded under Section 161
Cr.P.C., the petitioner's name is also
mentioned. Concededly, neither there is any
accused by the name of "Fallu" nor any
such
person
was
associated
during
investigation. Admittedly, petitioner is also
known as "Kallu" and his name sounds
phonetically similar, therefore, the said
telephonic information cannot be taken as a
convincing material to hold that the
petitioner was not involved in the crime.
According
to
the
complainant,
the
petitioner being armed with fire arm
weapon, also participated in the alleged
crime.

13.

Besides,
during
the
trial
proceedings, the material witnesses stand
examined before the court, who have been
cross-examined at length also, and a
perusal of their depositions prima facie
indicates the involvement of the petitioner
in the alleged occurrence. Apart from this,
the stand of the petitioner that he was not
present at the place of occurrence is based
upon the call details records, but the same
may not be enough to extend clean chit to
the petitioner, because to prove the plea of
'alibi', the onus would lie upon the accused.
Therefore, the second argument raised by
learned counsel for the petitioner is also
without any merit.

14. Resultantly, in view of above
discussion, this Court has no hesitation in
holding that the evidence recorded during
trial strongly suggests the involvement of
petitioner in the alleged commission of
offences, and the trial court has also
carefully examined the material on record
while passing the impugned order. The
impugned order does not suffer from any
illegality or impropriety, therefore, no
interference is warranted in the revisional
jurisdiction.

15.

The
criminal
revision
is
dismissed.
----------
(2023) 11 ILRA 126
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 535 of 2001

Ram Dulari ...Appellant
Versus
Smt. Saroj Devi & Anr. ...Respondents

Counsel for the Appellant:
Santosh Tripathi, Amit Kumar Singh, Ram
Singh

Counsel for the Respondents:
Arun Kumar Shukla

A.Civil Law - Motor Vehicles Act, 1988-Section
173- The claimant's husband died leaving
behind a family of three dependents, The
deceased was a government servant He was in
receipt of a gross salary of Rs.4578/- per
month-The factum of accident involving the
offending truck is admitted to parties-it was
incumbent upon the owner to have produced
the driver in the witness-box and explained the
accident consistent with absence of any
negligence on his part-The owner never called
her driver to the witness-box and in the absence
of an eye-witness account, the Tribunal, as if it