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Smt. Seema v. State Of U.P. And Others - APPLICATION U/s 482 No. 11471 of 2004 [2006] RD-AH 16090 (14 September 2006)


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Court No. 17

Criminal Misc. Application No. 11471 of 2004

(U/s 482 Cr.P.C.)

Smt. Seema------------V/s-------------State of U.P. & another.

Hon. V.D. Chaturvedi, J.

Heard Sri A.K. Singh, learned counsel for the petitioner, Sri Brijesh Pandey, learned A.G.A. for the State and perused the impugned order. None is present for respondent no. 2 Ashok.

In this petition, the order dated 8.6.2006 has been challenged whereby the learned trial court rejected the application of the petitioner for summoning the accused Sushil and Pappu under section 319 Cr.P.C. The trial court rejected the petitioner's application on the ground that the role of Sushil and Pappu stated in the complaint's deposition was not mentioned in the F.I.R. lodged by her hence it was an improvement.

In F.I.R. Smt. Seema (Petitoner) stated that her husband Ashok (respondent No. 2) and his companions Pappu and Sushil, all were addicted of smack and wine; that Pappu and Sushil used to consume smack and liquor at her house and had the evil eyes upon her and her daughter; that whenever she raised objections against their visits, they abused her; that they used to give money to her husband Ashok for intoxication; that on the date and time of occurrence they started consuming smack at her house whereupon she objected; that thereupon Pappu and Sushil hurled filthy abuses against her (filthy abuses reproduced in F.I.R.) and exhorted Ashok to kill her whereupon Ashok had beaten her and inflicted knife blow on her chest. In her statement given in court she repeated all facts mentioned in the F.I.R. with an addition that Sushil and Pappu caught hold of her hands and Ashok inflicted knife blow. The allegation of exhortation by Sushil and Pappu was missing in her statement given in court.

The trial court concluded that her statement given in court regarding the role of Sushil and Pappu was an improvement, hence was not reliable and thus rejected the application moved under Section 319 Cr.P.C.

The role of exhortation and the role of catching hold the hands of victims are not the roles contrary to each other. Both of these roles were possible. The names of Pappu and Sushil were not first time introduced in evidence but their names find place in F.I.R. also.

While disposing of an application under Section 319 Cr.P.C. it was unwanted, uncalled for and improper for the trial court to scrutinize the evidence meticulously with such a high standard as is done at the time of conviction and thereby to conclude that the evidence was not reliable.  In disposing of the application under Section 319 Cr.P.C. the trial court has to find out only this much whether the alleged offence is made out or not against such person on the basis of the evidence if it remains unrebutted.  If it appears upon the perusal of the evidence that such person has committed any offence for which he can tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.

The question whether the petitioner's evidence regarding the role played by Sushil and Pappu was reliable or not, would be seen at the time of conviction and not at the time of exercising powers under Section 319 Cr.P.C.

The trial court, thus, erred in scrutinizing the evidence in a unwanted manner while exercising its power under Section 319 Cr.P.C. The petition under Section 482 Cr.P.C. is allowed and the impugned order dated 8.6.2004 rejecting the application under Section 319 Cr.P.C. is quashed. The trial court is directed to pass the order afresh on application under Section 319 Cr.P.C. in the light of the observations made above.

The copy of this order be sent, within a week, to the trial court for its compliance.

Dt. 14.9.2006



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