VINOD PRASAD,J - (1.) HEARD Sri Manish Tiwary, learned counsel in support of this revision, Sri Shrawan Kumar Dubey, holding brief of Sri Yogendra Mishra, learned counsel for the informant and learned AGA. Challenge in this revision by two revisionists Shyam Lal and Manju alias Ranjeet Singh is to their summoning order dated 11.2.2011, passed by Additional Sessions Judge/Fast Track Court No. 4 Firozabad in S.T. No. 193/2010, State Versus Sarvendra and others, Crime No. 134/04, u/s 302/34 IPC, P.S. Eka, district Firozabad, wielding power u/s 319 Cr.P.C., to stand trial for the aforesaid offences.
(2.) THE facts, as are culled out from the impugned order and from the record of the present revision are that informant Abhai Singh along with his brother Sabhai Singh, nephew Sanjay alias Sanju and Sukhveer were sowing maize crop in their field on 1.6.2009 at 11.30 in noon that accused persons Sarvendra Singh armed with rifle, Shyam Babu, Ranjeet alias Manju and Jagdish Singh all armed with country made pistols approached abusing them and all the malefactors fired, on which informant and his brother along with his nephew took their heels to escape injuries. Assailants chased them and caught hold of Sanjay alias Sanju, who then was shot dead by rifle fire. First Information Report of this incident was lodged by Abhay Singh on the same day at 12.40 p.m. During investigation complicity of two revisionists Shyam Babu and Ranjeet alias Manju were found to be false as it was detected that Shyam Babu was suffering from Cancer and Ranjeet alias Manju was preparing for IAS examination in Delhi. Charge sheet therefore was submitted only against rest of the two accused Sarvendra Singh and Jagdish Singh, who were summoned and put up for trial, during course of which, P.W. 1 Abhai Singh was examined and thereafter prosecution moved an application u/s 319 Cr.P.C. for summoning the two revisionists. Pending consideration that application, P.W. 2 Sabhai Singh was also examined in trial. Finding sufficient evidence disclosed against the two revisionists that the trial court summoned them through the impugned order dated 11.2.2011 to face trial along with already being tried accused. Hence this revision. Sri Manish Tiwary, learned counsel for the revisionists, in support of this revision submitted that alleged role of the two revisionists are ornamental. While passing the impugned order, the trial Judge did not observe that the evidence led in the trial was sufficient to record conviction,which opinion should have been recorded while passing the impugned order and lastly that trial judge also considered the material contained in the Case Diary including FIR and statements u/s 161 Cr.P.C. which he could not have done. In support of his submissions Sri Tiwary relied upon the decision of apex Court in Nishar and Another Vs. State of U.P. 1995 Cr. L.J. 2118 and (2010) 1 Supreme Court Cases (Crl.) 1278 Ram Singh and Another Vs. Ram Niwas and Another. Concludingly, it was submitted by learned counsel that impugned order of summoning dated 11.2.2011 be set aside. Learned counsel for the informant and learned AGA argued to the contrary and supported the summoning order.
(3.) I have perused the impugned order, cited decisions and the facts of the case. It is a day light incident where a person was shot dead in the presence of eye witnesses. All accused persons are close relatives and co-villagers. It has not been disputed by the learned counsel for the revisionists that complicity of Shyam Babu and Ranjeet alias Manju was found to be false by Investigating Officer only for the reasons that Shyam Babu was suffering from Cancer decease and Ranjeet alias Manju was doing preparation for IAS examination at Delhi and therefore they had alibis. There was no other reason for not charge sheeting them. These alibies are however subjected to proof by the accused at the appropriate stage of trial. However during trial, two facts witnesses were examined as eye-witnesses and through their evidences complicity of two revisionists were testified. In such a view, trial Judge found sufficient evidences to summon the two revisionists.;