our view, the trial court and the High Court rightly held that Respondent 2 cannot be summoned as an accused. The FIR in Case Crime No. 328-A/2013 was registered on 6-9-2013 at 1815 hours. The name of the second respondent is no doubt mentioned in the FIR and overt act is attributed to him. It is clear from the record that during the course of investigation, the investigating officer recorded the statements of witnesses, namely, Rajesh Kumar, Nizamuddin, Nand Kishore, Tribhuwan Singh, Bintu Rai and Nageshwar Kumar and other seven witnesses who have stated that Respondent 2 was not present at the place of occurrence at the time of the incident. The investigating officer has also recorded the statement of one Shiv Kumar Gupta and Sandeep Gupta who are working in the same office in which Respondent 2 was employed who had stated that Respondent 2 was in the office at the time of incident. Based on the statements recorded from the witnesses, the investigating officer found that the second respondent was posted on the post of Junior Engineer in the Bridge Construction Unit of Bridge Corporation, Lucknow and he usually resided there and on 6-9-2013, he was present at his workplace and discharging his official duties. Based on the materials collected during the investigation, the investigating officer recorded the finding that on the date and time of incident, Subhash Chandra Shukla was not present at the place of occurrence. Accordingly, the name of Subhash Chandra Shukla was dropped when the first charge-sheet was filed on 19-9-2014. The supplementary charge-sheet was filed against Rahul Shukla on 15-10-2014. Though the name of the second respondent was mentioned in the FIR, during investigation, it was thus found that the second respondent was not present in the place of incident and on the basis of the findings of the investigating officer, he was not charge-sheeted. Be it noted that the appellant complainant has not filed any protest petition then and there. During investigation, when it was found that the accused was not present at the place of incident, the courts below were right in refusing to summon Respondent 2 as an accused.
