1 Gordhan & Ors. vs. State of Rajasthan S.B.Cri. Revision Petition No.362/2008 Date of Order : 16.03.2009 HON'BLE MR. MANAK MOHTA, J. Mr.J.S.Choudhary for the petitioners. Mr.O.P.Rathi , Public Prosecutor. Mr.B.K.Mehar for the complainant. This revision petition is directed against the order dated 11.01.2008 passed by the learned Addl. District & Sessions Judge, (Fast Track), Balotra, (Barmer) in Sessions Case No.05/2007, State of Rajasthan vs. Magga Ram & Ors. whereby the learned Addl.Sessions Judge allowed the application filed by the complainant Hukma Ram under section 319 Cr.P.C. and took cognizance and issued process against the newly added accused persons for the offence under section 307, 307/149, 341, 323, 324, 324/149, 325, and 325/149 IPC. For the purpose of disposal of this revision petition, in brief the relevant facts of the case are as under;- 2 From the perusal of the record it is revealed that on the statement of Hukma Ram (injured) FIR No.38/2007 was registered under sections 307, 323, 379 and 147 IPC at Police Station, Mandli, Dist.Barmer . In his statement he stated that on 31.08.06 he left his house at about 05.00 PM and was going to Balau bus stand to proceed for village Dhandhania. On the way, accused Gordhan along with one Karna Ram came on Motor cycle and restrained him. By the time Magga Ram, Balu, Lakha and Kheta also came there in jeep. Among them Gordhan was having knife and others were having lathis in their hands and while he tried to run away, all of them surrounded him and Gordhan stabbed him on his chest and on thigh by knife and others gave lathi blows to him, as a result of which he sustained several injuries. Thereafter, due to his serious condition, he was shifted to Hospital. It was also stated that there was previous enmity with the members of family of Ram Lal, of which accused belong. He further stated that the accused persons snatched his wrist watch and took away Rs.20,000/- which were lying in his pocket. During investigation, police recorded the statements of witnesses, 3 obtained medical report and on that basis , added the offence of Section 325 IPC but after completion of investigation, submitted charge sheet only against the accused Magga Ram and Karna Ram under sections 307, 325, 323, 341 and 324/39 IPC and gave negative final report against Gordhan, Baluram, Lakha and Kheta. As the case was sessions triable, hence it was committed to court of Sessions, Balotra. Thereafter, the case was transferred to the Additional Sessions Judge (Fast Track), Balotra. Charges were framed . Accused denied the charges and claimed trial. During trial, statements of PW/1Kisna Ram, PW/2 Hukam Ram, PW/3 Ganga Dan and PW/4 Dungar Dan were recorded. Thereafter on 13.07.07 an application was filed by Hukma Ram under section 319 Cr.P.C. for adding and summoning the additional accused, in same trial against Gordhan, Balu Ram , Lakha and Kheta in whose favour police had given negative F.R. The trial court after hearing the parties , allowed the application vide impugned order dated 11.01.08 and took cognizance against the above accused petitioners for the offence under the aforesaid sections, along with section 149 IPC and summoned them. Being aggrieved by the said order passed by 4 the learned Addl.Sessions Judge , the added accused petitioners have preferred this revision petition . Notice of the revision was issued , record was called and arguments were heard. During the course of argument, learned counsel for the petitioners submitted that the learned trial court has not properly considered and appreciated the facts before summoning the petitioners as accused persons under sections 319 Cr.P.C. Therefore, the order impugned is wrong and liable to be quashed. It was further submitted that in this case, police, after a thorough investigation, only filed challan against the accused persons Magga Ram and Karma Ram and did not find the involvement of other persons. It was contended that the present petitioners were not present at the time of alleged incident , they have been falsely impleaded in the case. It was also contended that during trial, by that time the statements of four prosecution witnesses have been recorded but except complainant PW/2 Hukam Ram, nobody has stated the names of present petitioners in participating in the crime. His statement is also not corroborated by the medical evidence. 5 Thus, there was no prima facie case against the petitioners to proceed and to summon. It was also contended that in this case, the application under section 319 Cr.P.C. has been filed by private party. No such application has been filed by the State. The private party has no locus standi to file said application, therefore, application was liable to be dismissed but the learned trial court has not deeply considered the contentions and passed erroneous order, that should be quashed and prayed that the revision petition may be allowed. On the contrary, learned Public Prosecutor as well as learned counsel for the respondent, supported the order passed by the trial court. Learned counsel for the complainant- respondent No.2, further refuted the contentions and submitted that from the very beginning, the complainant has stated the names of the present accused persons, who participated in giving beating. He has specifically stated that Gordhan caused injuries by knife on his chest and thigh and these injuries are corroborated by the medical report. It was further submitted that the other accused persons, including present petitioners also gave beating with lathis. There are as 6 much as 9 injuries on the person of injured. It was urged that police did not make fair investigation and intentionally against the record, did not file challan against the present petitioners. In court proceeding PW/2 Hukma Ram has stated the role of the present petitioners among other witnesses PW/1Kisna Ram and PW/4 Dungar Dan were not eye witnesses but they also stated about the injuries. It was urged that there is no bar to file application under section 319 Cr.P.C. by a private complainant in appropriate case. He relied on the judgment given by the apex Court in the case of Lok Ram vs. Nihal Singh & Anr. [2006 AIR SCW 2129] in support of his contention. He also urged that at the stage of summoning the accused under Sections 319 Cr.P.C., only their prima facie involvement of the petitioners in the incident is to be seen, the credibility of the statements are not required to be given much importance at this stage. He also cited judgments given in cases of Bholu Ram vs. State of Punjab & Anr. [2008 Cri.L.J.4576] , Ram Niwas vs. State [2006 (1) Cri.L.R. (Raj.) 241] in support of his submissions. On the basis of aforesaid submissions a prayer was made to dismiss the revision. 7 I have considered the rival submissions and have gone through the record and also perused the judgments cited from the side of Respondent No.2 The main question remain for consideration is whether the impugned order passed by the trial court suffers from any illegality or infirmity ?. Keeping in mind the contentions raised by the learned counsel for the petitioners, along with the scope of section 319 Cr.P.C. in summoning the additional persons in the same trial, I have perused the record. It is revealed that the initiation of the case was made on the statement (Ex.P/2) in which he has narrated that Gordhan was having knife in his hand and he inflicted one injury on his chest and another injury on his thigh. He has also named the other accused persons, including petitioners, who participated in the beating. Thus, the name of present persons were there from the very beginning but police had not filed challan against present petitioners. Thereafter, during trial proceeding, PW/2 Hukma Ram has reiterated the same thing. The contention of the petitioners that other witnesses have not stated the names of petitioners but as PW/1Kisna Ram and PW/4 Dungar Dan have stated in their 8 statements that they were not present at the time of the incident. PW/3 Ganga Dan has corroborated the incident. There are in total nine injuries on the body of injured Hukma Ram. Out of that, two are of sharp nature on chest and right buttock. Thus, to this extent, his statement is corroborated by medical evidence. The other contention of petitioners ' side that the present application under section 319 Cr.P.C. is not maintainable as filed by complainant Hukma Ram, but this contention is not having force. Hukma Ram is the complainant and he has lodged report that he got injuries in the incident and there is no prohibition for filing application under section 319 Cr.P.C. for adding other persons in trial by complainant side. The conclusion find support from the judgment cited by respondent's side of Lok Ram's case (supra) in which an application was held maintainable which was filed by the complainant, father of the deceased, to add father in-law as additional accused person in the same trial. At this stage, the trial court was to satisfy the involvement of persons in commission of offence, for adding and summoning the accused persons in the same trial. Thus, there is no illegality or infirmity found in the impugned order. The learned trial 9 court, after considering the material available on record, has used its judicious discretion in summoning the present accused persons, that deserves to be maintained. Thus, the order does not require any interference. The judgments cited from the respondent's side of Bholu Ram (supra) and Ram Niwas (supra), also support the conclusion. In the result, the present revision petition is liable to be dismissed and is hereby dismissed. Impugned order is maintained. (MANAK MOHTA), J. l.george