# Chandra Shekhar Tiwari & Ors. Revisionists v. State of U.P. & Anr

- **Citation:** (2025) 9 ILRA 1173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-02
- **Case number:** Criminal Revision No. 3080 of 2025
- **Bench:** Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-shekhar-tiwari-ors-revisionists-v-state-of-u-p-anr-53873
- **Pages:** 9

## Headnote

power under Section 319 CrPC to summon the
revisionists, who were initially exonerated
during investigation, based on the deposition of
PW-1 and PW-2.
Whether reliance solely on witness testimony,
despite lack of incriminating material in the
investigation, is legally sustainable.

HEADNOTES
Criminal Law - Criminal Procedure Code,
1973 - Sections - 193, 200, 201, 202, 300,
319, 398 - Indian Penal Code, 1860 -
Section 147, 201, 302, - Indian Evidence
Act, 1872 - Section 6 - Criminal Revision -
against the impugned order passed by the
Sessions Judge in Sessions Trial, arising out of
Case Crime under Sections 147, 302, 201 IPC,
pursuant to an application under Section 319
CrPC - matrimonial dispute - FIR - offence of
murder - alleged that the deceased was beaten,
tied, and strangulated by the accused including
the revisionists, though initially exonerated by
the Investigating Officer - Court emphasized
that under Section 319 CrPC, wide discretionary
power exists to summon additional accused
during inquiry or trial based on evidence
recorded in court, even at the stage of
examination-in-chief without waiting for crossexamination, provided the material is stronger
than a mere prima facie case but short of
conviction certainty - further observed that trial
evidence
has
primacy
over
investigation
materials,
which
may
only
serve
as
corroboration, and res gestae principles under
Section 6 of the Evidence Act allow facts
forming part of the same transaction to be
admissible - relying on Hardeep Singh, Brijendra
Singh, and Satbir Singh, the Court held that
there were sufficient evidence beyond a mere
prima facie case to justify summoning on
record,
therefore,
the
impugned
order
summoning the revisionists under Sections 147,
302, 201 IPC is affirmed and the criminal
revision is stands dismissed. (Para - 23, 24, 25,
26, 27, 28)
Revision Dismissed. (E-11)

CASE LAW CITED
Hardeep Singh v. State of Punjab, (2014) 3 SCC
92 / (85) ACC 313
Dharam Pal v. State of Haryana, (2014) 3 SCC
306
Brijendra Singh & Others v. State of Rajasthan,
(2017) 7 SCC 706
Satbir Singh v. Rajesh Kumar & Others, (2025)
5 SCC 740
State of U.P. v. Bashisht Rai & Others, 2006 (5)
ALJ (NOC) 902 (All)

LIST OF ACTS
Code of Criminal Procedure, 1973 - Indian Penal
Code, 1860 - Indian Evidence Act, 1872

LIST OF KEYWORDS
Criminal Revision - cognizance by Sessions
Court - Inquiry - Summoning additional accused
- Summoning of accused - Power of Sessions
Judge to order inquiry - Causing disappearance
of evidence - Prima facie case - Ocular evidence
- Res gestae - Investigation vs. trial evidence -
Murder by strangulation.

CASE ARISING FROM
Case Crime No. 85 of 2022, Police Station
Punchha, District Jhansi - Sessions Trial No. 960
of 2022 (State v. Sunil Tiwari & Others) -
Criminal Revision No. 3080 of 2025 against
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 28.05.2025 of Sessions Judge,
Jhansi.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Ramanuj Yadav
Counsel for Respondent(s): Shri Phool Singh
Yadav, Vaibhav Yadav, A.G.A., Shri Akhilesh
Kumar Mishra

## Text

9 All. Chandra Shekhar Tiwari & Ors. Vs. State of U.P. & Anr.
1173

30. There shall be no order as to costs.
----------
(2025) 9 ILRA 1173
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2025

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Revision No. 3080 of 2025

Chandra Shekhar Tiwari & Ors.
 ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Ramanuj Yadav

Counsel for the Opposite Parties:
G.A., Phool Singh Yadav, Vaibhav Yadav

ISSUE FOR CONSIDERATION
Whether the trial court rightly exercised its
power under Section 319 CrPC to summon the
revisionists, who were initially exonerated
during investigation, based on the deposition of
PW-1 and PW-2.
Whether reliance solely on witness testimony,
despite lack of incriminating material in the
investigation, is legally sustainable.

HEADNOTES
Criminal Law - Criminal Procedure Code,
1973 - Sections - 193, 200, 201, 202, 300,
319, 398 - Indian Penal Code, 1860 -
Section 147, 201, 302, - Indian Evidence
Act, 1872 - Section 6 - Criminal Revision -
against the impugned order passed by the
Sessions Judge in Sessions Trial, arising out of
Case Crime under Sections 147, 302, 201 IPC,
pursuant to an application under Section 319
CrPC - matrimonial dispute - FIR - offence of
murder - alleged that the deceased was beaten,
tied, and strangulated by the accused including
the revisionists, though initially exonerated by
the Investigating Officer - Court emphasized
that under Section 319 CrPC, wide discretionary
power exists to summon additional accused
during inquiry or trial based on evidence
recorded in court, even at the stage of
examination-in-chief without waiting for crossexamination, provided the material is stronger
than a mere prima facie case but short of
conviction certainty - further observed that trial
evidence
has
primacy
over
investigation
materials,
which
may
only
serve
as
corroboration, and res gestae principles under
Section 6 of the Evidence Act allow facts
forming part of the same transaction to be
admissible - relying on Hardeep Singh, Brijendra
Singh, and Satbir Singh, the Court held that
there were sufficient evidence beyond a mere
prima facie case to justify summoning on
record,
therefore,
the
impugned
order
summoning the revisionists under Sections 147,
302, 201 IPC is affirmed and the criminal
revision is stands dismissed. (Para - 23, 24, 25,
26, 27, 28)
Revision Dismissed. (E-11)

CASE LAW CITED
Hardeep Singh v. State of Punjab, (2014) 3 SCC
92 / (85) ACC 313
Dharam Pal v. State of Haryana, (2014) 3 SCC
306
Brijendra Singh & Others v. State of Rajasthan,
(2017) 7 SCC 706
Satbir Singh v. Rajesh Kumar & Others, (2025)
5 SCC 740
State of U.P. v. Bashisht Rai & Others, 2006 (5)
ALJ (NOC) 902 (All)

LIST OF ACTS
Code of Criminal Procedure, 1973 - Indian Penal
Code, 1860 - Indian Evidence Act, 1872

LIST OF KEYWORDS
Criminal Revision - cognizance by Sessions
Court - Inquiry - Summoning additional accused
- Summoning of accused - Power of Sessions
Judge to order inquiry - Causing disappearance
of evidence - Prima facie case - Ocular evidence
- Res gestae - Investigation vs. trial evidence -
Murder by strangulation.

CASE ARISING FROM
Case Crime No. 85 of 2022, Police Station
Punchha, District Jhansi - Sessions Trial No. 960
of 2022 (State v. Sunil Tiwari & Others) -
Criminal Revision No. 3080 of 2025 against
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 28.05.2025 of Sessions Judge,
Jhansi.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Ramanuj Yadav
Counsel for Respondent(s): Shri Phool Singh
Yadav, Vaibhav Yadav, A.G.A., Shri Akhilesh
Kumar Mishra

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. This criminal revision is directed
against the order dated 28.5.2025 passed by
the learned Sessions Judge, Jhansi in S.T.
No. 960 of 2022 (State Vs. Sunil Tiwari
and others) arising out of Case Crime No.
85 of 2022 under sections 147, 302, 201
IPC, Police Station Punchha, District Jhansi
whereby the Application 33-B under
section
319
Cr.P.C.
moved
by
the
prosecution
was
allowed
and
the
revisionists were summoned to face trial
for the said offences.

2. Heard Shri Ramanuj Yadav, learned
counsel for the revisionists, Sri Phool Singh
Yadav, learned counsel for the opposite
party no.2 and Shri Akhilesh Kumar
Mishra, learned A.G.A. for the State.

3. The brief facts of the case, as
unfolded in the F.I.R., are as follows :

On 9.5.2022 at about 9.00 p.m.
Dipendra Yadav @ Deepu, brother of the
informant, had gone to attend the marriage
ceremony of Lokendra Singh Yadav's
nephew to village Madora Khurd and a
quarrel started there between Lokendra
Singh Yadav, Amit Tiwari, Anuj and
Deepu and thereafter, Chandra Shekhar
Tiwari, Lokendra Singh Yadav, Amit
Tiwari, Anuj Pandey, Sanchit Yadav, Sunil
Tiwari tied his brother to a pillar of
Chandra Shekhar Tiwari's verandah and he
was beaten by them. When brother of the
informant did not return home till evening,
he was searched for but not found
anywhere and the above mentioned people
kidnapped him and made him disappear.
On 10.5.2022 at 11.30 a.m. his body was
found hanging on a tree at a deserted place
on the highway, which was hung after
committing his murder by the said accused
persons. The incident was witnessed by
Avadhesh Yadav. F.I.R. was lodged on
12.5.2022 at 11.35 a.m. under Sections
147, 302, 201 IPC.

4. It is submitted by learned counsel
for the revisionists that although the present
revisionists were named accused in the
F.I.R. but the Investigating Officer of this
case
found
absolutely
no
evidence
disclosing
their
involvement
during
investigation hence they were exonerated
by the Investigating Officer, however
charge sheet was submitted only against the
accused Sunil Tiwari.

5. Further argument is that the story
set up by the prosecution is false and
fabricated. The informant/PW-1 is not an
eye witness of the occurrence and some
major contradictions are clearly visible in
his statement in examination-in-chief and
cross-examination
which
makes
his
deposition inconsistent and unreliable. It is
also submitted that it is explicitly clear
from the record that the I.O. of this case
found absolutely no evidence against the
present revisionists and that was the reason
they were exonerated and no charge sheet
was submitted against them.

6. Another limb of the argument is that
the PW-1 and PW-2 have made relevant
improvements in their deposition recorded
before the Court. The present revisionists
are innocent and they have been falsely
9 All. Chandra Shekhar Tiwari & Ors. Vs. State of U.P. & Anr.
1175
implicated in this matter. They were not
present on the spot at the time of the
incident. It is further submitted that though
it has been alleged in the F.I.R. that the
deceased was assaulted by the accused
persons but no injury is found on his body
in the post mortem report and the cause of
death was found asphyxia due to ante
mortem strangulation.

7. It is also urged that the trial court
must
have
taken
into
account
the
statements recorded by the I.O. and
materials
collected
by
him
during
investigation. Hence, the trial court on the
basis of shaky and inconsistent oral
testimony of the witnesses, which is full of
material contradictions, passed an arbitrary
and illegal order to summon the revisionists
to face trial under Sections 147, 302, 201
IPC which suffers from infirmity and
perversity warranting interference by this
Court.

8. Per contra, learned A.G.A. and
learned counsel for the opposite party no.2
/ informant vehemently opposed the prayer
and it has been submitted that the present
revisionists were named in the F.I.R. of this
case and role of assault has also been
attributed
to
them.
However,
some
witnesses were won over by them during
investigation. Two witnesses of fact have
been examined before the trial court and
both of them have proved the active
participation of the present revisionists in
the commission of the alleged crime. It is
further submitted that even if it is presumed
that PW-1 was not present on the place of
occurrence at the time of incident but the
F.I.R. version has been firmly corroborated
by the eye witness - PW-2 and he has
assigned specific role of assault to all the
revisionists alongwith other co-accused
Sunil Tiwari. It is also submitted that while
deciding the application under Section 319
CrPC
the
Court
must
take
into
consideration the entire testimony of the
witnesses recorded before the Court. The
trial court relying upon the evidence of
PW-1 and PW-2, which corroborates the
F.I.R. version and on being satisfied that
there is sufficient material to summon the
present revisionists to face trial for the
relevant
offences,
summoned
them
accordingly.
There
are
no
material
contradictions in the statements of PW-1
and PW-2 in respect of complicity of the
present revisionists in the incident. It is also
submitted that the medical evidence fully
corroborates the prosecution version. The
trial
court
has
not
committed
any
irregularity, illegality or impropriety in
passing the impugned order.

9.
I
have
considered
the
rival
submissions made by the learned counsel
for the parties and have gone through the
entire record including the impugned order
carefully.

10. A perusal of the material available
on record transpires that PW-1 - Krishna
Kumar (informant), PW-2 - Awadhesh
Kumar (eye witness) were examined before
the trial court and at that stage an
application under Section 319 CrPC to
summon the present revisionists to face
trial for the offences under Sections 147,
302, 201 IPC was moved by the informant.
The trial court relied upon the statement of
PW-1,
the
informant,
who
in
his
examination-in-chief
supported
the
prosecution story and stated that Avadhesh
witnessed this incident on the spot and told
him. He is not an eye witness of the
incident.
PW-2
-
Awadhesh
Kumar
naratting the incident corroborates the
prosecution version and gave ocular
evidence
of
the
occurrence
in
his
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
examination-in-chief and it was added by
him that all the accused persons Chandra
Shekhar Tiwari, Lokendra Singh Yadav,
Amit Tiwari, Anuj Pandey, Sanchit Yadav
and Sunil Tiwari were beating Deepu with
lathi, danda, kicking and fisting and they
dragged him into the gate of Chandrashekar
Tiwari and when he tried to mitigate, he
was threatened to leave the place. The trial
court finding a prima facie case against the
revisionists allowed the application of the
informant and all the revisionists were
summoned to face trial for the offence
Sections 147, 302, 201 IPC vide impuged
order alongwith the accused Sunil Tiwari,
who was already facing the trial.

11. The latest law over the subject is
Satbir Singh vs. Rajesh Kumar and
others, (2025) 5 SCC 740 wherein
reiterating the established law rendered by
the Constitution Bench in Hardeep Singh
Vs.
State
of
Punjab
and
others,
2014(85)ACC 313, the Hon'ble Apex
Court in paragraph 16 of the said judgment
explained the law over the subject relying
upon the Constitution Bench decision in
Hardeep Singh case (supra) and quoted
the conclusions arrived at by the Hon'ble
Supreme Court qua the questions arising
for consideration and decision and it was
quoted as under :

"117. We accordingly sum up our
conclusions as follows:

Questions (i) and (iii)

- What is the stage at which
power under Section 319CrPC can be
exercised?
AND

- Whether the word "evidence"
used in Section 319(1)CrPC 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?

Answer

117.1. In Dharam Pal case
[Dharam Pal v. State of Haryana, (2014) 3
SCC 306 : (2014) 2 SCC (Cri) 159] , the
Constitution Bench has already held that
after committal, cognizance of an offence
can be taken against a person not named as
an accused but against whom materials are
available from the papers filed by the
police after completion of the investigation.
Such cognizance can be taken under
Section 193CrPC and the Sessions Judge
need not wait till "evidence" under Section
319CrPC
becomes
available
for
summoning an additional accused.

117.2.
Section
319CrPC,
significantly, uses two expressions that
have to be taken note of i.e. (1) inquiry (2)
trial. As a trial commences after framing of
charge, an inquiry can only be understood
to be a pre-trial inquiry. Inquiries under
Sections 200, 201, 202CrPC, and under
Section 398CrPC are species of the inquiry
contemplated
by
Section
319CrPC.
Materials coming before the court in course
of such inquiries can be used for
corroboration of the evidence recorded in
the court after the trial commences, for the
exercise of power under Section 319CrPC,
and also to add an accused whose name has
been shown in Column 2 of the chargesheet.

117.3. In view of the above
position the word "evidence" in Section
319CrPC has to be broadly understood and
not literally i.e. as evidence brought during
a trial.
9 All. Chandra Shekhar Tiwari & Ors. Vs. State of U.P. & Anr.
1177

Question (ii) -Whether the word
"evidence" used in Section 319(1)CrPC
could only mean evidence tested by crossexamination 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?

Answer

117.4. Considering the fact that
under Section 319CrPC a person against
whom material is disclosed is only
summoned to face the trial and in such an
event under Section 319(4)CrPC the
proceeding against such person is to
commence from the stage of taking of
cognizance, the court need not wait for the
evidence against the accused proposed to
be summoned to be tested by crossexamination.

Question (iv) -What is the nature
of the satisfaction required to invoke the
power under Section 319CrPC to arraign an
accused? Whether the power under Section
319(1)CrPC can be exercised only if the
court
is
satisfied
that
the
accused
summoned will in all likelihood be
convicted?

Answer

117.5. Though under Section
319(4)(b)CrPC the accused subsequently
impleaded is to be treated as if he had been
an accused when the court initially took
cognizance of the offence, the degree of
satisfaction that will be required for
summoning
a
person
under
Section
319CrPC would be the same as for framing
a charge [ In para 106, the Court held :
[Hardeep Singh v. State of Punjab, (2014) 3
SCC 92, SCC p. 138, para 106]"106. 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 319CrPC."] . The difference in the
degree of satisfaction for summoning the
original accused and a subsequent accused
is on account of the fact that the trial may
have already commenced against the
original accused and it is in the course of
such trial that materials are disclosed
against the newly summoned accused.
Fresh summoning of an accused will result
in delay of the trial therefore the degree of
satisfaction for summoning the accused
(original and subsequent) has to be
different.

Question (v) -Does the power
under Section 319CrPC extend to persons
not named in the FIR or named in the FIR
but not charge-sheeted or who have been
discharged?

Answer

117.6. A person not named in the
FIR or a person though named in the FIR
but has not been charge-sheeted or a person
who has been discharged can be summoned
under Section 319CrPC provided from the
evidence it appears that such person can be
tried along with the accused already facing
trial. However, insofar as an accused who
has been discharged is concerned the
requirement of Sections 300 and 398CrPC
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
has to be complied with before he can be
summoned afresh."

12. In the case in hand also the
impugned order passed by the trial court is
needed to be examined in the light of the
aforesaid settled law with a caution that any
observation may not make any influence
upon the trial.

13. Further, the Courts' power for
invoking under Section 319 Cr.P.C. with
regard to the accused, who is not named in
the F.I.R. or if named, no charge-sheet was
submitted against him or even he has been
discharged by the Court is well recognized.
At the stage of inquiry when the Court uses
its power for the aforesaid purpose, it may
take into consideration all the materials
collected by the Investigating Officer
during investigation or even the statement
recorded under sections 200 and 202
Cr.P.C., as the case may be, and it acts at a
pre-congnizance stage of the matter before
filing the charge-sheet by the police.
However, after submission of the chargesheet and after framing of charges when the
trial commences and evidence of witnesses
is recorded, the trial court may pass an
order under Section 319 CrPC to summon a
person as co-accused alongwith the accused
persons who are already facing trial and at
this stage no extraneous material is to be
looked into or considered by the trial court
except the deposition of the witnesses
recorded before the Court.

14. It is vehemently argued by the
learned counsel for the revisionists that
during investigation the I.O. collected
absolutely
no
evidence
against
the
revisionists and the trial court was not
empowered
to
replace
the
evidence
recorded during trial where it found some
materials adverse to the revisionists by
totally ignoring the evidence collected
during investigation and if evidence and
materials collected during investigation by
the I.O. are also considered the situation
turns in support of the revisionists and the
trial court commits a legal error in totally
discarding the evidence which was found
during investigation.

15. To diminish the aforesaid plea the
observations made in Hardeep Singh case
(supra) and another landmark judgment in
Brijendra Singh & others Vs. State of
Rajasthan, 2017(7) SCC 706 are also to
be taken support of which authoritatively
pronounce that the trial court must keep
attention to the fact that the material and
evidence collected during investigation
which corroborates the prosecution story
only can be taken cognizance of for the
purpose of summoning the accused under
Section 319 CrPC and the principle which
emerges out from the judgments of
Hardeep Singh case and Brijendra Sing
case (supra) is that the statement and
evidence recorded and collected by the I.O.
during investigation may always be taken
as a corroborative piece of evidence by the
Courts during trial. This is the evidence
recorded before the Court which always
finds preference and supremacy over the
evidence collected by the I.O. during
investigation.

16. If on the basis of aforesaid legal
position the oral evidence recorded before
the Court is examined it is crystal clear
from the deposition of PW-1 and PW-2 that
they have deposed that accused persons
Lokendra Singh Yadav, Amit Tiwari, Anuj
Pandey started altercation with Dipendra
Yadav @ Deep Yadav and subsequently
accused Chandra Shekhar Tiwari, Lokendra
Singh Yadav, Sunil Tiwari, Amit Tiwari
tied the deceased Dipendra , the brother of
9 All. Chandra Shekhar Tiwari & Ors. Vs. State of U.P. & Anr.
1179
the informant, with a pole and made assault
upon him. Although PW-1 is not the eye
witness of the incident but he has named
Awadhesh Singh as eye witness of the
incident and the said Awadhesh Singh, who
appeared as PW-2, has stated before the
Court in his deposition, the ocular evidence
of the matter and he has named all the six
persons who also find place in the
statement of PW-1 to commit the crime
jointly. The prosecution story set up in the
F.I.R. finds full corroboration by the
deposition of PW-1 and PW-2.

17. The dictum of law promulgated by
the Hon'ble Supreme Court in the judicial
pronouncement may be summarized as
mentioned hereinafter and it can be safely
held that the Court during trial is justified
to look into the materials collected during
investigation by the Investigating Officer
but however such materials and evidence
can be used only for corroboration of the
evidence recorded in the Court after the
trial commences for the exercise of power
under section 319 Cr.P.C.

18. A specific plea has been taken by
the learned counsel for the revisionist to
assail the impugned order that in the post
mortem report of the deceased besides a
ligature mark only one injury has been
found below the left ear of the deceased by
the doctor whereas as per the prosecution
case several accused persons had beaten
him. Hence the prosecution story is highly
suspicious and it was not probable that if a
person is being beaten by many persons
how he could sustain only one injury over
his body.

19. To meet out the aforesaid
submission,
learned
counsel
for
the
opposite party no.2 and the learned AGA
vehemently contended that besides the
ligature mark one other injury was found
over the body of the deceased which was
"Upward and backward along the line of
mandible ligature mark, situated 6 cm
below right ear, 6 cm below chin, 5 cm
below left ear."

It is also submitted that the
injuries sustained by the deceased may be
explained at the proper stage of trial before
the trial court. It is further submitted that in
the autopsy report cause of death of the
deceased has been found asphyxia due to
ante mortem strangulation.

20. In this backdrop, the oral evidence
on record was examined by this court. The
present revisionists, who are named in the
F.I.R., have been specifically named by
PW-2, the eye witness of this case, and he
has assigned role of assault upon the
deceased Deepu Yadav to all of them by
use of lathi, danda, kicking and fisting and
further he has stated that after beating him
he was tied by the revisionists and was
forcefully dragged into the gate of the
house of Chandra Shekhar Tiwari and
when he tried to persuade the matter,
Chandra Shekhar Tiwari, revisionist no.1,
threatened him to leave the place at once
and he (PW-2) left the place of occurrence
and subsequently the dead body of Deepu
was found hanging in a tree. He further
states that his dead body was hidden
somewhere in the house and in the night
the revisionists / accused persons took the
dead body of the deceased and hanged it
from a tree. The said statement made on
oath by PW-2 before the Court is found in
tact and consistent if it is examined on the
face of his entire deposition including the
cross-examination. Awadhesh Kumar -
PW-2 appears to be an innocent witness,
who had no reason to falsely implicate the
revisionists in the offence of murder. He
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
has also stated that for about five minutes
the deceased was beaten by the accused
persons but no assault by use of 'lathi' was
made by them. It is true that the dead body
of the deceased was not hanged before this
witness but since the incident of assault
upon the deceased has been strongly
corroborated by this witness, it can be
easily inferred prima facie that the
revisionists were the persons who hanged
the dead body of the deceased on tree. In
fact the entire deposition of PW-2 is
relevant taking recourse of Section 6 of the
Evidence Act also, which is based upon the
theory of res gestae evidence. The said
Section 6 reads as under :

"Section 6. Relevancy of facts
forming part of same transaction - Facts
which, though not in issue, are so
connected with a fact in issue as to form
part of the same transaction, are relevant,
whether they occurred at the same time and
place or at different times and places."

21. In State of U.P. vs. Bashisht Rai
& others, 2006(5) ALJ (NOC) 902 (All),
this Court has held that for application of
Section 6 of the Evidence Act it is
necessary that fact must not be too remote
but a part of single transaction. Whatever is
stated
by
eye
witness
to
murder
immediately
after
incident
as
to
participation of accused would be res
gastae evidence, same would be admissible
in evidence under Section 6.

22. PW-2, the eye witness, although in
his initial deposition has stated that assault
was made by use of lathi, danda, kicking
and fisting but however further he clarifies
that lathi was not used during incident. The
contention raised by the learned counsel for
the revisionists regarding the injuries
sustained by him is a fact which can be
explained only after recording the evidence
and at this stage this Court does not need to
go into deep in marshaling the evidence
recorded before the Court.

23. It is a trite law, particularly after
the pronouncement of the judgment of the
Hon'ble Supreme Court in the case of
Hardeep
Singh
(supra)
and
further
reiterated in Brijendra Singh case (supra)
and very recently in the case of Satbir
Singh (supra) that an effective order under
Section 319 Cr.P.C. may very well be
passed by the trial court relying only on the
statement made by a witness in his
examination-in-chief and there is no need
to wait for the cross-examination of such
witness which makes the prosecution easy
to move an application under Section 319
Cr.P.C. and to force the court to rely upon
the same.

24. It is on the touchstone of the
settled law, this Court has examined the
correctness and validity of the impugned
order passed by the learned Sessions Court.
There is constant and reliable ocular
evidence of PW-2 on record to show the
complicity of the revisionists in the alleged
occurrence alongwith the accused who is
already facing the trial. They all were
alleged
to
have
participated
in
the
commission of crime altogether having
same role. Hence, the revisionists could
safely be tried together with the accused
Sunil Tiwari.

25. Now it is trite law particularly
after the judgment of Hon'ble Supreme
Court passed in Hardeep Singh (supra)
case that since the Court exercises
discretionary jurisdiction in terms of
Section 319 Cr.P.C., it must arrive at a
satisfaction for the role played by the
proposed accused and the test that has to be
9 All. Ramnarayan Ram Daroga & Ors. Vs. State of U.P. & Anr.
1181
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.

26.
On
the
basis
of
aforesaid
discussion, in the peculiar facts and
circumstances of the case, this Court is of
the view that the impugned order is
sustainable. The evidence on record which
was recorded before the trial court
definitely makes out a prima facie case
against the proposed accused persons
which is more than a prima facie case as
exercised at the time of framing of charge
but less than such a satisfaction that the
evidence, if goes unrebutted, would lead to
conviction. From the entire testimony of
PW-2 prima facie it appears that the
accused persons / revisionists also have
played an active role in commission of the
crime and the Court concerned committed
no mistake to summon them to face trial for
the offence under Sections 147, 302, 201
IPC.

27. In view of the above discussion, in
my view, there is no infirmity, illegality,
perversity or lack of judicial mind in the
impugned order dated 28.5.2025 and the
said order is liable to be affirmed and the
criminal revision deserves to be dismissed.

28.
The
criminal
revision
is
accordingly dismissed. The impugned
order order dated 28.5.2025 passed by
learned Sessions Judge, Jhansi in S.T. No.
960 of 2022 (State Vs. Sunil Tiwari and
others) arising out of Case Crime No. 85 of
2022 under sections 147, 302, 201 IPC,
Police Station Punchha, District Jhansi is
affirmed.

29. Copy of this order be sent to the
court
concerned
for
compliance
and
necessary action.
----------
(2025) 9 ILRA 1181
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2025

BEFORE

THE HON'BLE SAMEER JAIN, J.

Criminal Revision No. 6391 of 2023

Ramnarayan Ram Daroga & Ors.
 ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Byas Kumar Prasad, Suresh Kumar Yadav

Counsel for the Opposite Parties:
Balbir Singh, G.A., Sukhendu Pal Singh

Issue for Consideration
Determination of the scope of 'Evidence'
mentioned under Section 319 of the Criminal
Procedure Code, 1973. Whether this term
includes
the
materials
contained
in
the
chargesheet or the case diary? Whether the
power to summon an additional accused under
Section 319 Cr.P.C. can be exercised in routine
manner?

Headnotes
Code of Criminal Procedure, 1973 - s.
156(3) - application to a Magistrate to
order the police to register an FIR and
investigate - s. 319 - Power to proceed
against other persons appearing to be
guilty of offence - scope of evidence -
limited to trial - exclusion of materials
contained in chargesheet or case diary -