1 Dunga Ram vs. State of Rajasthan & Ors. S.B.Cri. Revision Petition No.1036/08 Date of Order : 15.12.2008 HON'BLE MR. MANAK MOHTA, J. Mr.Sunil Mehta for the petitioner. Mr.L.R.Upadhyaya , Public Prosecutor. Mr.H.S.Shrimali for respondent No.2 to 6. The present criminal revision petition under section 397 read with section 401 Cr.P.C. is directed against the order dated 18.09.08 passed by the learned Addl.Sessions Judge, (Fast Track), Nagaur in Sessions Case No.59/2007 State vs. Bhagwana Ram & Ors. by which the learned Addl. Sessions Judge rejected the application filed under section 319 Cr.P.C. by complainant Dunga Ram for arraigning five accused persons , namely, Megha Ram , Jeeturam, Ganpat Ram, Ram Niwas and Bhura Ram in Sessions Case No.59/07 pending against accused Bhagwana Ram and Raja Ram. For the purpose of disposal of this revision petition, in 2 brief the relevant facts of the case are that , from the perusal of the record it is revealed that PW/7 Dunga Ram lodged a report , Ex.P/12 dated 16.10.07 alleging therein that Bhagwana Ram, Megha Ram, Raja Ram, Jeetu Ram , Bhura Ram, Ganpat Ram and Ram Niwas have committed murder of his father Hanuman. On his report, FIR No.84/2007 at P.S.Jayal (Nagaur), Ex.P/13 was registered under sections 147,148,149,341 and 302 IPC and investigation commenced. It further reveals that after completing the investigation, police filed challan only against Bhagwana Ram and Raja Ram in the court of Judicial Magistrate, Jayal from where the case was committed, later on charges were framed under section 302/34 IPC against the said accused persons, during trial, evidence of the prosecution witnesses have been recorded statements of accused persons under section 313 Cr.P.C. were recorded and defence evidence have also been recorded. Thereafter, an application under section 319 Cr.P.C. was filed on 18.09.08 by Dunga Ram , complainant of this case, stating therein that at the time of lodging of the report he has narrated the names of the concerned accused persons, namely Megha Ram, Jeetu Ram Ganpat Ram, Bhura Ram and 3 Ram Niwas along with Bhagwana Ram and Raja Ram who all were involved in committing the crime but police has filed charge sheet only against Bhagwana Ram and Raja Ram. In the said application filed under section 319 Cr.P.C. grounds were stated for arraigning them as accused persons in this case and a prayer was made to summon them. It was further submitted that during trial, the eye witnesses PW/8 Bhanwari and PW/9 Munni have stated facts with regard to participation in beating and commission of offence of those accused persons and on the basis of the statement of other witnesses, it was submitted that they were also associated in committing murder of Hanuman. On the basis of stated facts, a prayer was made to arraign these persons. The said application was opposed by other side. The learned trial court, after hearing both the parties, on the application filed under section 319 Cr.P.C. by Dunga Ram, vide order dated 18.09.08, the said application was rejected. Dissatisfied with the order , the present revision petition has been filed. Notice of this revision petition was given, record was called , arguments were heard. 4 During the course of arguments, learned counsel for the petitioner complainant submitted that learned lower court has not given due consideration on the statements of PW/8 Bhanwri and PW/9 Munni, as they were eye witnesses to the occurrence and they have specifically narrated the presence and role of the concerned persons in beating and causing murder of Hanuman, against whom prayer was made to summon. It was also contended that right from the very beginning, when report was lodged by Dunga Ram, the name of these persons have been narrated, but the police has not properly investigated the matter and has not filed challan against those persons. During the course of trial, the eye witnesses have attributed their roles, therefore, at this stage the court was only expected to see their prima-facie role in commission of offence, which was amply established through their evidence. It was also contended that the learned trial court has rejected the application merely on the ground that the case is at fag end and the police has not found them to be eye 5 witnesses. It was urged that these cannot be the grounds for rejection of the application . A request was made to quash and set aside the impugned order and prayed that a suitable direction be issued for adding these persons as accused and a direction be issued for summoning the named accused persons. The learned counsel for the petitioner also placed reliance on the judgments given in Lok Ram vs. Nihal Singh & Anr. [(2006)3 Supreme Court Cases (Cri.) 532], Brijesh Kumar v. State of U.P. [2003 Cri.L.J. 1082], Ateek & Anr. vs. State of Rajasthan 2008 Cri.L.J. (NOC) 3 (Raj.), Manju (Smt.) vs. State of Rajasthan & Ors. [2008 (1) Cr.L.R. (Raj.)], Rama & Anr. vs. State of Rajasthan [2003 (2) R.C.C., 753], Ram Niwas vs. State of Rajasthan & Ors. [2006 (1) Cr.L.R. (Raj.)241], State of Rajasthan vs. Mangilal [2002 (2) Cr.L.R.[Raj.] 839] Abdul Rehman & Ors. vs. State & Anr. [2000 Western Law Cases (Raj.)U.C.341 and Rukhsana Khatoon vs. Sakhawat Hussain [2002 Cri.L.J. SC, 2969]. On the basis of above submissions a request was made to allow the revision petition . On the other hand, learned Public Prosecutor , assisted 6 by the learned counsel for the accused, opposed the application and further submitted that in this case the lodger of the report PW/7 Dunga Ram, was not an eye witness, though he has mentioned the name of the concerned persons but the police, after thorough investigation, did not find the involvement of those persons. Therefore, police filed challan only against Bhagwana Ram and Raja Ram. It was further submitted that during trial PW/8 Bhanwari and PW/9 Munni though have stated the names of said persons but they cannot be considered as eye witnesses to the occurrence. PW/8 Bhanwari is the widow and PW/9 Munni is the daughter of deceased Hanuman Ram. They are most interested witnesses, their evidence are not relevant. It was also stated that these witnesses, in their statement, have admitted the presence of PW/4 Deepak Yadav . From the side of prosecution, Deepak Yadav, has appeared as PW/4. But this witness has not narrated the names of those persons except the names of Bhagwana Ram and Raja Ram. Therefore, prima facie case is not made out to add these persons as accused. The trial court, after considering the statement of these witnesses, has rightly rejected the application filed under 7 section 319 Cr.P.C. by the complainant. Further, it was urged that at present the case is at final stage, the evidence has been completed , statements under section 313 Cr.P.C. have been recorded and the case is fixed for final argument. It was submitted that at this belated stage, the application filed by the complainant was not entertainable. The learned trial Judge , after considering all facts, using his judicial discretion, has rejected the application and there is no illegality in the order, therefore, that should be maintained. A prayer was made to reject the revision petition. Learned counsel for the respondents , in support of their contention, also relied on the judgments given in Michael Machado v. Central Bureau of Investigation [2000 Cri.L.J. 1706], Jagdish vs. State & Ors. 2006 (4) Western Law Cases (Raj.)479, Tulcha Ram @ Tulsiram vs. Bhojaram & Ors. [2005 (2) Cr.L.R. [Raj.] 1384, Pratap Singh & Ors. vs. State of Rajasthan & Ors. [2003 (2) RCC 786], Ratna Ram vs. State of Rajasthan [2003 (1) RCC, 388 and Sura Ram vs. State of Rajasthan [2003 (3) R.Cr.D.139 (Raj.)] . I have considered the rival submissions and have gone 8 through the record of the case and also have perused the judgments cited by both the sides. From the perusal of record it reveals that the application filed by Dunga Ram, complainant of this case was considered by the learned trial court and vide the impugned order that was rejected. Against that the present revision has been filed. From the record it reveals that the report Ex.12 was made by PW/7 Dunga Ram against 7 persons but the police, after investigation, filed challan only against two persons namely Bhagwana Ram and Raja Ram. It further reveals that no such application was filed before the learned committal Magistrate. The application was filed after recording evidence of the total prosecution witnesses as well as the witnesses produced by the defendant's side. During the course of arguments, mainly it was stressed that during trial PW/8 Bhanwari Devi and PW/9 Munni Devi who were stated to be the eye witnesses have assigned the role of accused persons and on the basis of the strength of the statement of these witnesses prayer was made to arraign them as accused 9 persons and summon them. In this respect learned trial court has considered the statement of these witnesses along with the statement of PW/4 Deepak Yadav. I have also perused the statement of these witnesses. The learned trial court, after considering the statement did not find prima facie case against the alleged persons to arraign them as accused persons. I have also gone through the judgments cited by the learned counsel for the petitioner. In those judgments power and scope to summon the accused persons under section 319 Cr.P.C. have been explained and it has been further observed that the reliability of the witnesses is to be decided at the final stage. At this stage, the existence of sufficient grounds to summon is to be seen. It has been further opined in some cases that even at a later stage the power to summon the accused can be exercised looking to the facts of the case but it has been observed in all the cases that that prima facie sufficient grounds must be existing before arraigning and summoning the accused persons. I have also considered the judgments cited by the learned counsel for the respondent in Michael Machado's case (supra), wherein in it 10 has been held that at the fag end of the trial the judicial discretion should not be lightly exercised. Thus, on the basis of aforesaid discussion, where the learned trial court did not find prima facie case while using its judicial discretion, I find no illegality or irregularity in the said order. The contentions raised by the learned counsel for the petitioner are not sustainable and the judgments cited from his side is not helping his contentions. As the case is pending for final disposal before the learned trial court, therefore, detailed discussion and any comment on the statement of the witnesses is not in the interest of any party. On the basis of aforesaid discussion, without observing anything on the merit of the case , the present revision is not sustainable, it is liable to be dismissed and is hereby dismissed. It is further made clear that learned trial court will not be influenced by any observation made in this order and will expedite the hearing of the case. The revision petition stands disposed of accordingly. 11 (MANAK MOHTA), J. l.george