1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER S.B.CRIMINAL MISC. PETITION NO. 1026/2006 (Harchand Singh V/s State of Rajasthan & Anr.) Date of Order : 10/07/2007 PRESENT HON'BLE MR. JUSTICE H.R.PANWAR Mr. H.S.Sandhu, for the petitioner. Mr. Ashok Upadhyay, P.P. None present for the respondent No.2 though served. BY THE COURT:- By the instant criminal misc. petition under Section 482 Cr.P.C., the petitioner has challenged the order dated 29.6.2006 passed by Additional Sessions Judge, No.1, Sriganganagar (for short 'the revisional court' hereinafter) in Criminal Revision No. 64/2005 whereby the revision petition filed by the petitioner against the order dated 29.7.2005 passed by Judicial Magistrate, Srigangangar (for short 'the trial court' hereinafter) was dismissed. I have heard learned counsel for the parties. Perused 2 the order impugned. It is contended by learned counsel for the petitioner that the independent witnesses i.e. Swaroop Singh S/o Hajara Singh and Prakash Kaur W/o Swaroop Singh have categorically stated that the injury to non-petitioner No.2 Paramjeet Singh was inflicted by his real brother Harnek Singh against whom the police filed challan. Though the presence of the petitioner has been shown but the petitioner only intervened the quarrelling party and therefore, no overt act has been assigned to the present petitioner. This fact has not been considered by both the courts below. Learned counsel further submits that the injury report clearly reveals that there is one lacerated wound and there are contusions and abrasions shown in the injury report alleged to have been caused by co-accused Harnek Singh. I have carefully gone through the challan papers, injury report, statements of witnesses more particularly the statements of independent witnesses namely Swaroop Singh, Prakash Kaur and Kartar Kaur who is mother of injured Paramjeet Singh. All these witnesses stated that father of the non-petitioner No.2 and co-accused Harnek Singh took a loan from Cooperative Society which could not be repaid during life time of Harbant Singh and therefore, officials of the Cooperative Society Bank came to attach the crops on which there was some altercation between two brothers namely complainant Paramjeet 3 Singh and co-accused Harnek Singh. It was complainant Paramjeet Singh who abused his own mother on which Harnek Singh took a Danda and inflicted injuries to injured Paramjeet Singh in the heat of passion by which the injured suffered injury on head, hands etc. which corroborates the injury report. It has also been stated that while two brothers were quarreling, the petitioner intervened and separated them and thus merely because the petitioner was present it cannot be said that the petitioner participated in the occurrence. The petitioner himself is a witness to the occurrence as stated by other witnesses. The police after through investigation did not find case against the petitioner, however the police found the case against co-accused Harnek Singh who inflicted injury by Danda to injured Paramjeet Singh, but the trial court took the cognizance against the petitioner, that order was challenged by the petitioner before the revisional court and the revisional court did not consider these material aspects of the case and dismissed the revision petition without considering the evidence available on record. On careful perusal of the order passed by the revisional court, it no where appears that the revisional court has taken note of the material evidence and simply dismissed the revision petition. In the circumstances therefore, the order passed by the courts below cannot sustain and are liable to be set aside. 4 In the result, the criminal misc. petition is allowed. The order passed by the trial court dated 29.7.2005 and the order passed by the revisional court dated 29.6.2006 are set aside. (H.R.PANWAR),J. rp