# Kailash Singh Revisionist v. State of U.P. & Ors

- **Citation:** (2024) 12 ILRA 814
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-11
- **Case number:** Criminal Revision No. 5550 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kailash-singh-revisionist-v-state-of-u-p-ors-51357
- **Pages:** 6

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 319 - Evidence Act,
1872 - Section 10 - Summon of the
proposed accused as additional accused
was sought for - Allegation of attributing
the role of chief conspirator - There is
nothing in the evidence of any witness to
show that there was meeting of minds
amongst proposed accused (respondent
nos. 2 and 3) and other accused persons
facing trial - Effect - There is only
allegation against respondent nos. 2 and 3
that they were inimical to the deceased -
Relevancy
-
Held,
the
allegations/
acquisitions made in the FIR or evidence
of witness cannot form an evidence of
conspiracy unless there is some evidence
of conspiracy which comes under purview
of Section 10 of Evidence Act to connect
the proposed accused with the other
accused persons who are projected as
perpetuates
of
crime
in
the
case.
Allegation cannot form basis of prove and
learned trial court has rightly declined to
issue process against respondent nos. 2
and 3 in this case. (Para 18 and 19)

Criminal Revision dismissed. (E-1)

List of Cases cited:

## Text

814 INDIAN LAW REPORTS ALLAHABAD SERIES
vehicle in favour of the revisionist during
pendency of trial after taking personal bond
and two sureties each in the like amount to
the satisfaction of the court concerned and
take undertaking to produce the vehicle
before the court or competent authority for
confiscation as the case may be, as and
when required. The trial court may also add
certain other conditions for release of the
vehicle as provided in judgment of Hon'ble
Supreme Court Sunderbhai Ambalal Desai
vs State of Gujarat (supra).

17.
The
revision
is
allowed
accordingly.
----------
(2024) 12 ILRA 814
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.12.2024
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 5550 of 2023

Kailash Singh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Amarnath Tripathi

Counsel for the Opposite Parties:
G.A., Rajesh Kumar

A. Criminal Law - Criminal Procedure
Code,1973 - Section 319 - Evidence Act,
1872 - Section 10 - Summon of the
proposed accused as additional accused
was sought for - Allegation of attributing
the role of chief conspirator - There is
nothing in the evidence of any witness to
show that there was meeting of minds
amongst proposed accused (respondent
nos. 2 and 3) and other accused persons
facing trial - Effect - There is only
allegation against respondent nos. 2 and 3
that they were inimical to the deceased -
Relevancy
-
Held,
the
allegations/
acquisitions made in the FIR or evidence
of witness cannot form an evidence of
conspiracy unless there is some evidence
of conspiracy which comes under purview
of Section 10 of Evidence Act to connect
the proposed accused with the other
accused persons who are projected as
perpetuates
of
crime
in
the
case.
Allegation cannot form basis of prove and
learned trial court has rightly declined to
issue process against respondent nos. 2
and 3 in this case. (Para 18 and 19)

Criminal Revision dismissed. (E-1)

List of Cases cited:

1. Hardeep Singh Vs St. of Pun.; 2014 (3) SCC
92

2. Bhagwan Swaroop Vs St. of Mah.; AIR 1965
SC 682

3. Criminal Appeal No. 1049 of 2006; Siva @
Jeeva @ Mottai Khadar @...Vs St. by Inspector
of Police decided on 16.4.2019

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Supplementary affidavit filed today
is taken on record.

2. Instant criminal revision has been
preferred against the impugned order dated
4.8.2023 passed by learned Additional
District and Sessions Judge, Court No.
14/Special Judge (Gangster Act), Varanansi
in S.T. No. 450 of 2021 arising out of Case
Crime No. 145 of 2020, P.S. Jaitpura,
District Varanasi. By the impugned order
learned trial court has dismissed the
application 34-kha under section 319
Cr.P.C. filed by the revisionist wherein
prayer
has
been
made
to
summon
respondent nos. 2 and 3, who were named
in the F.I.R. as conspirator, as additional
12 All. Kailash Singh Vs. State of U.P. & Ors.
815
accused to face trial together with the
accused who are already facing trial in the
aforesaid case.

3. Heard Sri Amarnath Tripathi,
learned counsel for the revisionist, Sri
Rajesh Kumar, learned counsel for the
respondent no. 3, learned AGA for the
State and perused the material available on
record.

4. Learned counsel for the revisionist
submitted that in the present case F.I.R.
was lodged at the instance of Kailash Singh
on 28.8.2020 at around 5:30 P.M. on the
basis of incident dated 28.8.2020 at about
10:30 A.M. his nephew Abhishek Singh,
who was an advocate by profession, was
going to District Court Chandauli by riding
a motor-bike bearing Registration No.
UP55AC1701. He was accompanied by his
friend Deepak Gond who was pillion rider.
Some miscreants were chasing them near
Chaukaghat Kali Temple and open 4-5
around fire at Abhishek which resulted in
death of Abhishek and Balmiki Gond, a
passerby and his companion Deepak Gond
got seriously injured by fire arm injury.
There was enmity with regard to land
between Abhishek Singh and named
accused Shardul Singh and Shiveshwar
Rai. These people had lodged an F.I.R. also
against Abhishek Singh which was under
inquiry by P.S. Pandeypur Lalitpur. The
named accused would often threaten
Abhishek Singh and respondent nos. 2 and
3 hatched a conspiracy with hired killers to
commit
this
offence
who
opened
indiscriminate fire on Abhishek Singh @
Prince and his companion Deepak Gaud.

5. Learned counsel for the revisionist
submitted that the revisionist is named in
the F.I.R. along with one unknown person.
Investigation officer submitted charge sheet
twice in the case firstly against 11 accused
persons on 13.12.2020 and subsequently
against 15 accused persons on 18.12.2020
under sections 302, 307, 120-B, 145, 148,
149, 216-A/34 I.P.C. and sections 3,25, 27
of Arms Act, however, as many as 26
persons whose name surfaced during
investigation have been charge sheeted.
The investigating officer has exonerated the
named accused persons who are respondent
nos. 2 and 3 in present revision after
investigation on the ground that their
complicity in the offence was not found.
The deceased Abhishek Singh was accused
in Case No. 132 of 2013 under section 307,
394, 506 I.P.C. P.S. Ramnagar, District
Varanasi in which he was sent to jail and he
was released from jail in 2019.

6. He next submitted that during trial
charge sheeted accused persons' evidence
of P.W. 1 Kailash Singh, P.W. 2 Wife of
the deceased Balmiki Gond and P.W. 3
injured Deepak Gaud has been recorded,
however, P.W. 2, and P.W. 3 have not
supported the prosecution version in their
evidence and they declined to identify the
charge sheeted accused persons who were
present in the court at the time of their
evidence. P.W. 1 Kailash Singh the
informant has fully supported the F.I.R.
version in his evidence and alleged the
named
accused
Sharadul
Singh
and
Shiveshwar Rai as chief conspirator in this
case in which two persons were killed and
one was seriously injured due to fire arm
injuries caused by the charge sheeted
accused persons.

7. Learned trial court has dismissed
the application under section 319 Cr.P.C.
filed by the revisionist /informant without
considering the fact that respondent nos. 2
and 3 are named in the F.I.R. and was
attributed with role of chief conspirator in
816 INDIAN LAW REPORTS ALLAHABAD SERIES
the alleged offence and there has been long
enmity
between
Abhishek
Sing
and
respondent nos. 2 and 3 with regard to land
in dispute.

8. Per contra, learned counsel for the
respondent nos. 2 and 3 submitted that
apart from bald allegations made in the
F.I.R. against respondent nos. 2 and 3 and
statement of P.W. 1, there is no plausible
evidence regarding conspiracy against
respondent no. 2 and 3 even P.W. 3 the
injured has stated nothing in his evidence.
The
F.I.R.
version
has
not
been
corroborated by any other evidence on
record. The deceased Abhishek Singh @
Prince himself has long criminal history
and he developed enemies during course
time. Respondent Nos. 2 and 3 has nothing
to do with incident in present case. P.W. 4
Surya Dubey has been declared hostile and
he has also stated nothing against the
proposed accused Sharadal Singh and
Shiveshwar Rai. Learned trial court has
dismissed 319 Cr.P.C. after considering the
detail fact and circumstance of the case and
impugned order needs no interference in
the present revision. The case is fixed for
recording prosecution evidence. The role of
respondent no. 2 and 3 was not found in
this offence by investigating officer and he
dropped their name in charge sheet. During
investigation this fact emerged that Vivek
Singh Katta who was harboring long
enmity with deceased Abhishek Singh @
Prince hatched conspiracy with jailed
accused Abhishek Singh @ Honey to
eliminate Abhishek Singh @ Prince.

9. The ambit and scope of exercise of
power under section 319 Cr.P.C. has been
discussed by Hon'ble Supreme Court in
Constitution Bench judgement Hardeep
Singh vs. State of Punjab 2014 (3) SCC 92
wherein paragraph nos. 98 and 99 Hon'ble
Court observed as under:-

" 98. Power under Section 319
Cr.P.C. is a discretionary and an extra-
ordinary power. It is to be exercised
sparingly and only in those cases where the
circumstances of the case so warrant. It is
not to be exercised because the Magistrate
or the Sessions Judge is of the opinion that
some other person may also be guilty of
committing that offence. Only where strong
and cogent evidence occurs against a
person from the evidence led before the
court that such power should be exercised
and not in a casual and cavalier manner.

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."

10.
The
case
of
present
revisionist/informant that proposed accused
respondent nos. 2 and 3 were present on the
12 All. Kailash Singh Vs. State of U.P. & Ors.
817
spot where offence is committed by
perpetuates of the crime whose name is
surfaced during investigation. Respondent
nos. 2 and 3 undoubtedly named in the
F.I.R. but on the basis of suspension due to
their previous enmity with the deceased
Abhishek @ Prince and the informant has
stated in FIR that some miscreants open 4-5
round fire on his nephew Abhishek Singh
@ Prince which is resulted in death.
Abhishek Singh @ Prince and one passerby
namely Balmiki Gond the companion of
Abhishek Singh, namely, Deepak Gond at
the time of incident who was also travelling
along with Abhishek Singh @ Prince on
motor bike suffers series of injuries in the
incident. The allegation against respondent
nos. 2 and 3 in FIR is that these people
were harbouring enmity with Abhishek @
Prince and they had lodged FIR against him
also and which was investigated by police
at P.S Pandeypur District Jhansi.

11. The similar statement was given
by the informant in his statement recorded
under section 161 Cr.P.C. before police in
respect of respondent nos. 2 and 3 in which
he has stated therein that he had named
Sharadul Singh and Shiveshwar Rai in FIR
and these people would have got his
nephew killed. He also stated therein that
one Vivek Singh Katta had also enmity
with deceased Abhishek @ Prince but he
had shot fire at one Arif Ansari, a sand
merchant at Bihar in mistaken identity of
Abhishek @ Prince and in that murder case
Abhishek was subsequently made accused
by the father of the deceased.

12. Informant Kailash Singh has stated
in his sworn testimony before the Court
during trial of other accused persons that
miscreants chased his nephew Abhishek @
Prince who was an Advocate by profession
near Kali Temple Chauka Ghat Varanasi
and opened fire at him when he was
moving on motorcycle along with his
companion Deepak Gond, the pillion rider.
One passerby Balmiki Gond also suffered
fire arm injury in the incident. Sharadul
Singh and Shiveshwar Rai were keeping
evil eye on his land and on account of that
land, they had filed an application against
Abhishek @ Prince which was being
inquired by Pandeypur Police. These
persons worked as builder and on their
incitement this incident was caused upon
his nephew. These people are main accused
in the case. In cross examination of coaccused persons wherein it is stated that
whatever that in his statement 161 Cr.P.C.
only that portion is stated by him which is
finds place in written report exhibit Ka and
he shown other materials therein. P.W.s 2,
3 and 4 have stated nothing about
respondent nos. 2 and 3.

13. So fare as charge of criminal
conspiracy is concerned, the same is
defined in section 120A I.P.C. which may
be reproduced as Under:-

"120A. Definition of criminal
conspiracy

When two or more persons agree
to do, or cause to be done,-

(1) an illegal act, or

(2) an act which is not illegal by
illegal means, such an agreement is
designated a criminal conspiracy:

Provided
that
no
agreement
except an agreement to commit an offence
shall amount to a criminal conspiracy
unless some act besides the agreement is
done by one or more parties to such
agreement in pursuance thereof."

14. Section
120B
IPC provides
punishment of criminal conspiracy which
reads as under:-
818 INDIAN LAW REPORTS ALLAHABAD SERIES

"120B. Punishment of criminal
conspiracy

(1) Whoever is a party to a
criminal conspiracy to commit an offence
punishable with death, 51[imprisonment
for life] or rigorous imprisonment for a
term of two years or upwards, shall, where
no express provision is made in this Code
for the punishment of such a conspiracy, be
punished in the same manner as if he had
abetted such offence.

(2) Whoever is a party to a
criminal conspiracy other than a criminal
conspiracy
to
commit
an
offence
punishable as aforesaid shall be punished
with imprisonment of either description for
a term not exceeding six months, or with
fine or with both.]"

15. Thus, conspiracy is a separate
offence which is based on principle of
vicarious liability if conspirator is not
perpetrator of the crime.

16. A three Judge bench judgement of
Hon'ble Supreme Court in Bhagwan
Swaroop vs. State of Maharashtra AIR
1965 SC 682 has analized the ingredients
of section 10 of Evidence Act which
provides that things said or done by
conspirator in reference to common design
will be relevant fact for charge of criminal
conspiracy.

The ingredients are as follows:-

"1. There shall be a prima facie,
evidence affording aa reasonable ground
for a code to believe that to or more
persons are members of a conspiracy;

2. if the said condition is fulfilled,
anything said, done are written by any of
them in reference to their common
intention will be evidence against the
other;

3. anything said, done or written
by him should have been said, done or
written by him after the intention was
formwed by any one of them;

4. It would also be relevant for
the said purpose against another who
entered the conspiracy whether it was said,
done or written before he entered the
conspiracy or after he left it; and

5. it can only be used against a
co-conspirator and not in his favour."

17. The High Court of Madrash in
Siva @ Jeeva@ Mottai Khadar @...vs State
by Inspector of Police in Criminal Appeal
No.1049 of 2006 dated 16.4.2019 held in
paragraph no. 25 and 27 as under:-

"25.It is settled law that to prove
a criminal conspiracy, there must be
evidence, direct or circumstantial to show
that there was an agreement between two
or more persons to commit an offence.
There must be a meeting of minds, resulting
in
ultimate
decision
taken
by
the
conspirators, regarding the commission of
offence and where the factum of conspiracy
is
sought
to
be
inferred
from
circumstances, the Prosecution has to show
that those circumstances give rise to a
conclusive or irresistible inference of an
agreement between two or more persons to
commit an offence.

27.Merely levelling a charge of
conspiracy, without proper and believable
evidence, is not sufficient to mulct criminal
liability on the Respondents. The purpose
or circumstances, warranting an inference
of existence of a conspiracy, should be
proved so as to bring the Respondents to
face the trial in criminal court."

18. If we analise the facts stated and
evidence adduced in the case in hand there
is nothing in the statement of P.W. 1 or in
12 All. Prateek Agarwal Vs. State of U.P. & Anr.
819
evidence of any other witness to show that
there was meeting of minds amongst
respondent nos. 2 and 3 and other accused
persons who are facing trial in the case to
commit the offence. In so far as the FIR
version which has been recorded by P.W. 1
in his sworn testimony before the court
which has been formed basis of moving an
application under section 319 Cr.P.C.
against respondent nos. 2 and 3 there is
only allegation against respondent nos. 2
and 3 that they were inimical to the
deceased Abhishek @ Prince and they have
lodged a false case against him at police
station
concerned
which
were
being
inquired into at the time of incident.

19. The allegations/ acquisitions made
in the FIR or evidence of witness cannot
form an evidence of conspiracy unless
there is some evidence of conspiracy which
comes under purview of section 10 of
Evidence Act to connect the proposed
accused with the other accused persons
who are projected as perpetuates of crime
in the case. Allegation cannot form basis of
prove and learned trial court has rightly
declined
to
issue
process
against
respondent nos. 2 and 3 in this case for
want of requisite evidence against them as
additional accused in exercise of power
under section 319 Cr.P.C.

20. In fact only allegation against them
in FIR as well as in statement of P.W. 1
there is no material whatsoever at record to
connect respondent nos. 2 and 3 with the
offence which is being tried.

21. Consequently, I find no illegality
irregularity or perversity in the impugned
order passed by learned trial court while
dismissing the application under section
319
Cr.P.C.
filed
by
the
informant/revisionist
to
summon
the
respondent nos. 2 and 3 under section 319
Cr.P.C. The revision is devoid of merit and
deserves to be dismissed.

22. The revision is hereby dismissed.
----------
(2024) 12 ILRA 819
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.11.2024

BEFORE

THE HON'BLE RAJEEV SINGH, J.

Application U/S 482 No. 10390 of 2024

Prateek Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ayush Singh, Rudra Pratap Singh, Sushil
Kumar Singh

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973-Section
482-Indian
Penal
Code,1860-Sections 302 & 328-quashing
of order-trial court issued a notice to the
applicant
without
following
proper
procedure, specifically without recording
the statements of the complainant and
witnesses as required u/s 223 of the
B.N.S.S. 2023, vitiates the issuance of
notice to the accused and subsequent
proceedings-Such procedural irregularity
is a valid ground for invoking the inherent
powers
u/s
482
Cr.PC.-a
Magistrate
cannot take cognizance of a complaint
without giving the accused an opportunity
to be heard- the accused must be provided
with copies of the complaint, sworn
statements, and witness statements to
prepare a response-Reliance was placed
on a Karnataka High Court ruling which
clarified the procedure u/s 223 BNSS
emphasizing that recording statements