# Sandeep Kumar Revisionist v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 1108
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-28
- **Case number:** Criminal Revision No. 4382 of 2022
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-kumar-revisionist-v-state-of-u-p-anr-opp-parties-49797
- **Pages:** 7

## Headnote

Criminal Law- Indian Penal Code, 1860 -
Sections 304, 323 & 504 - The Code of
Criminal Procedure, 1973 - Sections 161,
319 - Criminal Revision against order
impugned by which - Court below on an
application of prosecution, summoned the
accused - Validity - FIR - Accused Vibha
Devi
and
revisionist
caught
hold
complainant's
father
and
co-accused
inflicted knife injuries causing serious
bleeding
-
During
investigation,
complainant and her sister, both have
corroborated
allegations
of
F.I.R
-
Investigating Officer has exonerated the
revisionist - On the basis of affidavits and
St.ments of some witnesses - Revisionist
was not present at the time of occurrence
and
from
CDR his
presence
is
not
established - Incident has occurred at the
house
of
complainant
and
except
complainant and her sister no other
person is named as eye-witness - It is
settled law that testimony of an injured
witness has greater evidenciary value and
should not be discarded, but for sound and
cogent reasons - Applying the test laid
down by Apex Court - There is strong
evidence
than
mere
probability
of
complicity of revisionist - It passes the
test which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to the
extent
that
the
evidence,
if
got
unrebutted, would lead to conviction -
Hence, no infirmity or illegality in the
impugned order. (Para 2, 3, 10, 11)

Revision dismissed. (E-13)

List of Cases cited:

## Text

1108 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Consequently, the revision is
hereby dismissed.
----------
(2023) 4 ILRA 1108
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 4382 of 2022

Sandeep Kumar ...Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Dhiraj Srivastava, Sri V.P. Srivastava Sr.
Advocate

Counsel for the Opp. Parties:
G.A., Sri Amar Chandra, Sri Sunil Kumar

Criminal Law- Indian Penal Code, 1860 -
Sections 304, 323 & 504 - The Code of
Criminal Procedure, 1973 - Sections 161,
319 - Criminal Revision against order
impugned by which - Court below on an
application of prosecution, summoned the
accused - Validity - FIR - Accused Vibha
Devi
and
revisionist
caught
hold
complainant's
father
and
co-accused
inflicted knife injuries causing serious
bleeding
-
During
investigation,
complainant and her sister, both have
corroborated
allegations
of
F.I.R
-
Investigating Officer has exonerated the
revisionist - On the basis of affidavits and
St.ments of some witnesses - Revisionist
was not present at the time of occurrence
and
from
CDR his
presence
is
not
established - Incident has occurred at the
house
of
complainant
and
except
complainant and her sister no other
person is named as eye-witness - It is
settled law that testimony of an injured
witness has greater evidenciary value and
should not be discarded, but for sound and
cogent reasons - Applying the test laid
down by Apex Court - There is strong
evidence
than
mere
probability
of
complicity of revisionist - It passes the
test which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to the
extent
that
the
evidence,
if
got
unrebutted, would lead to conviction -
Hence, no infirmity or illegality in the
impugned order. (Para 2, 3, 10, 11)

Revision dismissed. (E-13)

List of Cases cited:

1. Brijendra Singh & ors. Vs St. of Raj. (2017) 7
Supreme Court Cases 706

2. Naveen Vs The St. of Har. in Criminal Appeal
No (s). of 2022 (Arising out of SLP (Crl.) No.
3746 of 2022)

3. Hardeep Singh Vs St. of Pun. AIR 2014
Supreme Court page 1400

4. Brijendra Singh & ors. Vs St. of Raj. (2017) 7
SCC page 706

5. Rajesh & ors. Vs St. of Har., (2019) 6 SCC
368

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Sri V.P. Srivastava, learned
Senior Advocate, assisted by Sri Dhiraj
Srivastava,
learned
counsel
for
the
revisionist, learned A.G.A. for the State of
U.P.-opposite party no.1 and Sri Amar
Chandra, learned counsel for the opposite
party no.2.

2. This criminal revision is directed
against order dated 27.09.2022 passed by
Additional Session Judge, Court No.1,
Shahjahanpur in Session Trial No.177 of
2016 (State Versus Ashok Kumar) arising
out of Case Crime No.377 of 2016 under
Section 304, 323 and 504 I.P.C., Police
Station
Roja,
District
Shahjahanpur.
4 All. Sandeep Kumar Vs. State of U.P. & Anr.
1109

3. By the impugned order, learned
trial court in exercise of powers under
Section 319 Cr.P.C. on the application of
the
prosecution
has
summoned
the
revisionist-accused, Sandeep and another
accused Vibha Devi to face trial with coaccused.

4. Km. Anushka Krishna, opposite
party no.2 lodged an F.I.R. on 31.03.2016
regarding the incident which has taken
place on 29.03.2016 at about 6.30 p.m.
alleging therein that the complainant with
her sister Surabhi was at her house when
her real uncle Ashok Kumar, his wife
(Vibha Devi) and Sandeep came there and
started abusing. In the meantime her father
Ram Krishna came there and requested not
to hurl abuses, which infuriated Ashok
Kumar who brought a knife from his house
and Vibha and Sandeep caught hold the
complainant's father and Ashok Kumar
stabbed in the stomach of her father
causing him serious injuries and profused
bleeding. Surabhi also got injury on her
right finger while rescuing her father. Her
father became unconscious and all the
accused ran away. Her father was brought
to District Hospital for treatment. The
doctors referred him to Lucknow and he
was admitted in KGMC, Lucknow and
ultimately died on 30.03.2016. The F.I.R.
was lodged under Sections 304, 504 and
323 I.P.C. against Ashok Kumar, Vibha
Devi and Sandeep. Charge-sheet was
submitted against Ashok Kumar. During
trial two witnesses Km. Anushka Krishna
Complainant, PW 1 and Surabhi PW 2
were
examined
and
theirupon
an
application under Section 319 Cr.P.C. was
moved by the prosecution.

5. Learned counsel for the revisionists
contended that after investigation chargesheet was submitted only against Ashok
Kumar on 25.08.2016. The Investigating
Officer failed to collect any evidence
against revisionist-accused, although the
investigation
continued.
The
second
Investigating
Officer
made
further
investigation and verified the statement of
complainant and other witnesses recorded
by the earlier Investigating Officer and
came to the conclusion that revisionistaccused is not involved, even remotely to
the alleged incident and he submitted report
to this respect on 09.03.2017 specifically
mentioning that revisionist was not at all
present on the place of occurrence as is
apparent from his call detail record. During
trial Anushka Krishna PW 1 and Surabhi
PW 2 were examined and they both just
repeated the version of the F.I.R without
bringing on record any other fact, material
or circumstances. They are real sisters and
daughters of the deceased. No other
prosecution witness or independent witness
has been examined. Before the trial court
there was no additional circumstance or
any sufficient material or any documentary
evidence
or
even
statement
of
any
independent witness. There existed on
record only the version of the F.I.R. The
complainant moved an application under
Section 319 Cr.P.C. on 09.11.2016 when
investigation against revisionist was still
continuing. An objection was filed against
it. The trial court called for report from
Station House Officer, Police Station Roja,
District
Shahjahanpur
about
pending
investigation. The Investigating Officer
submitted report on 18.02.2017 stating that
against
revisionist
investigation
is
continuing which included the final report
dated
09.03.2017
and
CDR
dated
29.03.2016 apart from other material.
However,
trial
court
allowed
the
application under Section 319 Cr.P.C. vide
order dated 23.06.2018 and summoned the
revisionist,
Sandeep
Kumar.
Being
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
aggrieved with this order, revisionist
preferred Criminal Revision No.2189 of
2018 which was allowed by this Court vide
its order dated 18.07.2018 setting aside the
order dated 23.6.2018 and the matter was
remitted to the trial court to decide afresh
in the light of the observations. Certified
copy of this order was submitted before
court below on 24.07.2018, but court below
appreciated the material which were
already available and ignoring the order of
this Court has passed the impugned order
dated 27.09.2022 in arbitrary and cursory
manner. The learned court below has
miserably failed to exercise its jurisdiction
while ignoring order of this Court in which
this Court has quoted the decisions of
Hon'ble Apex Court in Hardeep Singh's
case which ought to have been considered
while passing the impugned order but such
exercise has not been undertaken by the
court below. The impugned order dated
27.09.2022 is verbatim to the earlier order
dated 23.06.2018 which reflects that court
below has not applied its judicial mind and
has passed the impugned order in a
mechanical manner. It is further contended
that the law stands settled by Apex Court
and High Court that power under Section
319 Cr.P.C. should be exercised sparingly
and in rarest of rare cases and that, too,
after application of judicial mind and after
considering the evidence and also only
after objective satisfaction about strong
probability which may lead to conviction of
a person sought to be added for trial.
Learned counsel submitted that the word,
"appears", and "evidence" used in the
provisions under Section 319 Cr.P.C. have
been interpreted by Apex Court and this
Court to the effect that the same should be
just lesser than the higher degree of proof
for determining the prima facie case for
proceeding against the person who has
been summoned. There does not exist such
degree of either strong suspicion or even
probability and no element of prima facie
case or only ingredients is meted out. It is
further contended that once the trial court
has
summoned
the
report
and
the
Investigating Officer has submitted the
entire material which demonstrated that
revisionist was not at all present at the
place of incident and he is not involved in
the case, the court below ought to have
carefully considered and applied judicial
mind about the effect of those material
evidences, but it failed to do so. There
exists no material on record which may be
sufficient for satisfaction of the court below
so as to summon the revisionist. The court
below has passed impugned order in
cursory
and
casual
manner
without
considering the broad probabilities, detail
fact, entire evidence, document produced
and the remotest chances of conviction of
revisionist, thus the impugned order is not
sustainable.
Learned
counsel
placed
reliance on the following case laws:

1. Brijendra Singh and others Versus
State of Rajasthan (2017) 7 Supreme
Court Cases 706;

2. Naveen Versus The State of
Haryana in Criminal Appeal No (s). of
2022 (arising out of Special Leave Petition
(Crl.) No. 3746 of 2022)

6. Learned A.G.A. appearing for the
State and learned counsel for the opposite
party no.2 contended that the revisionist is
named in the F.I.R. and there are specific
allegations against him. He has been
assigned role of catching hold the victim.
The complainant and her sister Surabhi, the
eye-witnesses, in their statement under
Section 161 Cr.P.C. have fully corroborated
the allegations of the F.I.R., but the
Investigating Officer in an improper
manner recorded statement of so-called
4 All. Sandeep Kumar Vs. State of U.P. & Anr.
1111
eye-witnesses
and
exonerated
the
revisionist. No cogent evidence has been
collected by the Investigating Officer
which may indicate that he was not present
at the spot. During trial the complainant
and her sister Surabhi have been examined
and they have supported the allegations of
the F.I.R. and have clearly stated about
complicity of the revisionist-accused in the
incident assigning him role of catching
hold. Surabhi has also got injuries in the
incident. So, the testimony of PW 1 and
PW 2 are of greater value in comparison to
the statement of so-called independent
witnesses on the basis of which the
Investigating Officer has exonerated the
revisionist-accused. There is sufficient and
cogent evidence available on record as both
the complainant and her sister the eyewitnesses
have
stated
about
active
participation of revisionist-accused in the
incident. The order is just and proper. There
is no illegality in the impugned summoning
order.

7. The Apex Court in the case of
Hardeep Singh Vs. State of Punjab AIR
2014 Supreme Court page 1400 has
prescribed
the
standard
of
evidence
required for exercising powers under
section 319 Cr.P.C. The relevant paras 98
and 99 are as follows:

"98. Power under Section 319,
Cr.P.C. is a discretionary and an extraordinary 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 face 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."

8. In the case of Brijendra Singh
and others Vs. State of Rajasthan (2017)
7 SCC page 706 the Apex Court has
reiterated the principles laid down in
Hardeep Singh's case. The relevant para no.
13 is quoted below:

"13. In order to answer the question,
some of the principles enunciated in
Hardeep
Singh's
case
may
be
recapitulated: power under Section 319
Cr.P.C. can be exercised by the trial court
at any stage during the trial, i.e., before the
conclusion of trial, to summon any person
as an accused and face the trial in the
ongoing case, once the trial court finds that
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
there is some ''evidence' against such a
person on the basis of which evidence it
can be gathered that he appears to be
guilty of offence. The ''evidence' herein
means the material that is brought before
the Court during trial. Insofar as the
material/evidence collected by the IO at the
stage of inquiry is concerned, it can be
utilised for corroboration and to support
the evidence recorded by the Court to
invoke the power under Section 319 Cr.P.C.
No doubt, such evidence that has surfaced
in examination-in-chief, without cross-
examination of witnesses, can also be taken
into consideration. However, since it is a
discretionary power given to the Court
under Section 319 Cr.P.C. and is also an
extraordinary one,
same
has
to
be
exercised sparingly and only in those cases
where the circumstances of the case so
warrants. The degree of satisfaction is
more than the degree which is warranted at
the time of framing of the charges against
others in respect of whom charge-sheet was
filed. Only where strong and cogent
evidence occurs against a person from the
evidence led before the Court that such
power should be exercised. It is not to be
exercised in a casual or a cavalier manner.
The prima facie opinion which is to be
formed requires stronger evidence than
mere probability of his complicity."

9. So the test as laid down by Apex
Court for invoking powers under Section
319 Cr.P.C. inter alia includes the principle
that only when strong and cogent evidence
occurs against a person the power under
Section 319 Cr.P.C. should be exercised.
The test to be applied is one which is more
than prima facie case, which is applied at
the time of framing of charge.

10. The F.I.R. of this case has been
lodged against Ashok Kumar, Smt. Vibha
Devi and Sandeep (revisionist) by Anushka
Krishna, daughter of the deceased. There
are specific allegations in the F.I.R. that the
accused Vibha Devi and Sandeep caught
hold Ram Krishna and co-accused Ashok
inflicted knife injuries in the abdomen
causing serious bleeding. It is further
alleged that the complainant and her sister
Surabhi tried to rescue their father and
Surabhi also suffered knife injury in finger
of her right hand. During investigation, the
complainant and her sister Surabhi, both
have corroborated the allegations of the
F.I.R.
The
Investigating
Officer
has
exonerated
the
revisionist-accused,
Sandeep on the basis of affidavits and
statements of some witnesses recorded
under Section 161 Cr.P.C. in which they
have stated that Sandeep was not present on
the spot at the time of occurrence and
further that from the CDR his presence at
the place of occurrence is not established.
The complainant Anushka Krishna and
Surabhi her sister, who is also an injured,
have been examined during trial as PW 1
and PW 2. They have reiterated their
version of the incident as stated in the
F.I.R. as well as in their previous
statements recorded under Section 161
Cr.P.C. It is clear from the allegations of the
F.I.R. that the incident has occurred at the
house of the complainant and except
complainant and her sister no other person
is named as eye-witness of the incident.
Even in their statements recorded under
Section 161 Cr.P.C. no other person is
named as eye-witness of the incident. In
parcha of Case Diary dated 09.03.2017, the
Investigating Officer has submitted that
independent witnesses have not stated
about the complicity of accused Sandeep in
the incident. The previous Investigating
Officer has collected the CDR of the
mobile of Sandeep and has recorded that
Sandeep was not present at the place of
4 All. Sandeep Kumar Vs. State of U.P. & Anr.
1113
occurrence. So, the evidence on the basis of
which
the
Investigating
Officer
has
exonerated the revisionist is of a very weak
type. The CDR of mobile may be relevant
for corroboration to prove the presence of
accused at the place of occurrence, but not
vice versa. Except oral statement of formal
witnesses, no other cogent evidence has
been collected by the Investigating Officer
regarding alibi, while there is cogent
evidence on record in the form of testimony
of complainant (eye-witness) and her sister
Surabhi injured as well as eye-witness of
the incident. It is settled law that the
testimony of an injured witness has greater
evidenciary value and it should not be
discarded, but for sound and cogent
reasons.

In Rajesh and ors vs.State of
Haryana, (2019) 6 SCC 368 wherein
informant named 10 persons for attempt
to murder of his son and another with
specific
allegations
against
all
the
accused.
The
Investigating
Officer
submitted his report U/s 173 (2) Cr.P.C.
against four accused only, no challan
filed against six accused (appellants).
The trial proceeded against four accused
only. During trial, P.W.-1 (complainant)
and P.W.-2 (injured witness) specifically
stated about the overacts by the accused
appellants and role played by them. An
application for proceeding against them
under section 319 Cr.P.C. was allowed by
the trial court. The High Court dismissed
the revision. The Apex Court held that,
"the appellants herein are also named in
the FIR, in the deposition before court,
P.W. 1 & 2 have specifically stated
against appellants and specific roles
attributed to them, on the basis of the
same, the persons against whom, no
charge-sheet is filed can be summoned to
face the trial, no error has been
committed by the courts below to summon
the appellants therein to face the trial in
exercise of power U/s 319 Cr.P.C.

11. So, it is clear that there is
cogent evidence in the form of testimony
of eye-witnesses and injured witness.
Applying the test laid down by Apex
Court on the present set of facts, it is
clear that there is strong evidence than
mere probability of the complicity of the
revisionist-accused and it passes the test
as laid down by the Apex Court which is
more than prima facie case as exercised
at the time of framing of charge, but short
of satisfaction to the extent that the
evidence, if got unrebutted, would lead to
conviction.

12. It is correct that earlier order passed by
the trial court dated 23.06.2018 was set
aside by this Court in Criminal Revision
No. 2189 of 2018 vide order dated
18.07.2018 and the trial court was directed
to revisit the matter and pass a fresh order.
This Court in order dated 18.07.2018 has
specifically observed that it has not given
any opinion as to whether the strong
satisfaction
arose
in
the
facts,
circumstances and the evidence in the
present case. In the impugned order, the
trial court has narrated the allegations of
the application and objections in paras 1st
and 2nd of the impugned order. Thereafter,
in the last paragraph before operative
portion, learned trial court has made an
analysis of the facts and evidence on record
and on its basis has allowed the application.
This Court has to judge the correctness,
legality and propriety of the impugned
order. The trial court may not have used
proper language, but it has analyzed the
entire facts, evidence and other material
available on record and conclusion drawn
by it is just and proper. The intention is to
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
be gathered from reading the order as a
whole. There is no infirmity or illegality or
error in the impugned order. There is no
sufficient reason to interfere in the
impugned order. This criminal revision is
liable to be dismissed.

13. This criminal revision is,
accordingly, dismissed.
----------
(2023) 4 ILRA 1114
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2023

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 4576 of 2022

Satish & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionists:
Sri Shashi Kumar Mishra

Counsel for the Opp. Parties:
G.A.

Criminal Law- Indian Penal Code, 1860 -
Sections 307, 323 & 504 - The Code of
Criminal Procedure, 1973 - Sections 161,
319 - As per FIR - Sharafat and Satish
suddenly opened fire on her mother -
Thereafter,
other
accused
persons
assaulted her with lathi, danda - After
investigation, I.O. submitted charge-sheet
only against Sharafat and Sabir - During
trial P.W. 1, P.W. 2 and P.W. 3 were
examined - Application u/s 319 Cr.P.C.
was moved by prosecution to summon the
remaining accused named in FIR - Trial
Court has summoned the revisionists -
Held, it is undisputed that revisionists are
named
in
FIR
-
Clear
and
specific
allegations against the accused - Mother
of complainant has suffered injuries - Her
medico legal report is part of record - In
her St.ment complainant and injured both
have corroborated version of FIR - Before
trial
court
they
have
been
fully
corroborated prosecution story - It is
settled law that testimony of injured
witness can't be discarded unless there
are cogent reasons - The I.O. merely on
the
basis
of
C.D.R.
has
recorded
conclusion that revisionists were not
present at the time of incident - Injured
witness
and
complainant
have
fully
corroborated their presence at the spot -
Impugned summoning order is detailed
and reasoned. (Para 2, 3, 8, 11)

Revision dismissed. (E-13)

List of Cases cited:

1. Hardeep Singh Vs St. of Pun. AIR 2014
Supreme Court page 1400

2. Brijendra Singh & ors. Vs St. of Raj. (2017) 7
SCC page 706

3. Shiv Prakash Mishra Vs St. of U.P. & anr.
reported in 2019 (109) ACC 632 (SC)

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard learned counsel for the
revisionists, learned A.G.A. for the State and
perused the record.

2. This criminal revision is directed
against the order dated 23.9.2022 passed by
learned Additional District and Sessions Judge,
Court No. 4, Bulandshahar in S.T. No. 737 of
2021 (State Vs. Sharafat Ali and others) Case
Crime No. 295 of 2020, under section 307, 323
IPC, P.S. Jahangirabad, District Bulandshahar.
By the impugned order learned trial court
exercising the powers under section 319 Cr.P.C.
on
the
application
of
prosecution
has
summoned the revisionists-accused to face trial
with other co-accused.

3. The O.P. No. 2 lodged an FIR that
on 27.6.2020 at about 2:30 p.m. Sharafat