IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1431 of 2009 Md. Akhtar @ Akhtar Hussain, son of Late Mubarak Hussain, resident of village-Gaina, P.S.-Manigachhi, District- Darbhanga. ………Petitioner Versus The State of Bihar ………Opposite Party ----------- 2. 21.10.2011 The accused petitioner has preferred this revision application against the order dated 31.07.2009 passed by the learned 2nd Additional Sessions Judge, Darbhanga in S.T.No.271/2007 arising out of Manigachhi P.S. Case No.30/2007 under Sections 302 and 448 of the I.P.C. by which the petition filed on behalf of the prosecution under Section 319 Cr.P.C. has been allowed and the petitioner has been directed to appear before the court to face the trial as an additional accused in this case. The prosecution case, in brief, is that on 12.03.2007 Sobaida Khatoon (informant), the mother of the deceased Sultana Khatoon gave a written statement to the officer-in- charge of Manigachhi police station alleging therein that on that day at about 6.30 A.M., the accused Md. Naushad had entered into her house and tied the neck of her daughter Sultana Khatoon aged about 18 years with a plastic rope, which caused her death. The informant raised 2 alarm, the co-villagers Md. Ahsan, Md. Ahmad and other co-villagers male and female came there and saw the occurrence. After the death of Sultana Khatoon, Naushad hanged the dead body from the roof of her house. On the statement of the informant, Manigachhi P.S. Case No.30/2007 was instituted under Sections 302 and 448 of the I.P.C., which was instituted against the sole accused Md. Naushad. After investigation, the police submitted charge-sheet against him. The case was committed to the court of sessions for trial. After examination of 12 witnesses, a petition was filed under Section 319 of the Cr.P.C. on behalf of the prosecution on 9.04.2009 with a prayer to issue summon against the petitioner to face the trial which has been allowed by the learned 2nd Additional Sessions Judge vide the impugned order. The learned counsel for the petitioner submits that the petitioner is neither named in the F.I.R. nor his name has ever transpired during the entire investigation till the submission of charge-sheet. As a matter of fact, out of 11 witnesses examined on behalf of the prosecution, P.W.1 Md. Ahsan, P.W.9 Akramul Haque and P.W.10 Sobaida Khatoon are the close family members of the deceased, 3 who have purposely and knowingly taken the name of the petitioner as participant in the alleged occurrence by making an improvement apart from the matter stated in the F.I.R. only to use and humiliate the petitioner. The petitioner used to live in Saudi Arbia (Jeddah) for doing his job and on the last visit of his house, the prosecution party has threatened to implicate him also in the present case for which the petitioner had filed an Informatory Petition before the learned Chief Judicial Magistrate on 31.07.2008 much prior to the examination of P.W.9 and P.W.10. P.W.10 is the informant. P.W.9 is her husband and P.W.1 is the brother of P.W.9. They are highly interested having enmity with the petitioner and as such, no reliance can be placed on their evidence. He has further submitted that the 2nd Additional Sessions Judge should have held that the prosecution has filed the petition under Section 319 Cr.P.C. at a belated stage, which could not be maintainable. Out of 12 charge- sheet witnesses, 11 witnesses including the I.O. have been examined and the trial is in the last phase. P.W.1 is not even a charge-sheet witness nor his statement was recorded by the police during investigation. The defence 4 has not got any opportunity to cross-examine him rather without any question being put to him by the defence side; he was discharged and as such, due to non-cross- examination of P.W.1, the case of the petitioner has been highly prejudiced. The evidence of these witnesses is not reliable and should have been disbelieved. In support of his contention, he has referred the following decisions: (i) Md. Sajid Hussain @ Md. Sajeed Vs. State of Bihar and Ors. reported in 2010 (4) BBCJ 312. (ii) Lal Suraj @ Suraj Singh & Anr. Vs. State of Jharkhand reported in (2009) 2 Supreme Court Cases 696. (iii) Michael Machado & Anr. Vs. Central Bureau of Investigation & Anr. reported in (2000) 3 Supreme Court Cases 262. The learned counsel for the State has submitted that P.W.1 and P.W.10 are the eye witnesses of the occurrence, who have fully supported the case that on the date of occurrence Naushad and his father Akhtar Hussain (petitioner) both had entered into courtyard of the informant, Subiada Khatoon and secondly, both had tied the neck of her daughter Sultana Khatoon and subsequently, she died by tying the rope in her neck and stress by them, besides the other witnesses P.W.9 Akramul 5 Haque is the husband of the informant and he has supported the case as an hearsay witness. The other material witnesses are hostile. The name of the petitioner never came in the charge-sheet nor his name was sent up for trial. The prosecution has filed a petition for summoning the petitioner after getting the evidence against him. It cannot be said that this petitioner has been filed at a belated stage. The decisions cited on behalf of the petitioners are not applicable in the facts and circumstances of this case. After hearing the learned counsel for both the parties and on perusal of the material on record, it appears that prior to the examination of the informant (P.W.10) except P.W.1 Md. Ahsan and P.W.9 Ekramun Hussain, all the witnesses are hostile. Therefore, there was no occasion to the prosecution to file the aforesaid petition at the early stage. According to the P.W.1, he is the eye witness to the occurrence. P.W.9 is the husband of the informant. He was doing work at Mumbai. There was no male member in the house of the informant. The informant and her daughter were residing in the house. P.W.9 came from Mumbai and the occurrence was informed to him by his wife. 6 Accordingly, he has given the evidence before the court and he is not an eye witness, but his evidence stands on the evidence of P.W.10 and the evidence of these two witnesses are consistent. P.W.1 is not a charge-sheet witness, but he has supported the prosecution case as an eye witness. P.W.11 (I.O.) has recovered a plastic thread and a pair of sleeper from the house of the informant. The witnesses examined by the I.O. during the investigation have been declared hostile by the prosecution in trial. Those witnesses have fully supported the prosecution case before the police, but in the course of trial, they have denied the main facts of the case. After considering all these facts, the learned trial court has found that there is prima facie material against the petitioner to summon him to face the trial. In the case of Lal Suraj @ Suraj Singh (supra), it has been held that the power under Section 319 Cr.P.C. is required to be exercised very sparingly. Before summoning, the trial court must form an opinion on the basis of evidence brought before it that a case has been made out that such person could be tried together with the other accused. In that case, the trial court has relied on the 7 evidence of P.W.6 and P.W.7, who were not the eye witnesses. P.W.6 was not an eye witness to the occurrence and P.W.7 was only a hearsay witness. Therefore, it was held that no evidence worth the name was brought on the record to arrive at a satisfaction that there was a reasonable prospect of conviction of the appellants. But in this case, P.W.1 and P.W.10 are the eye witnesses to the occurrence and P.W.9 is a hearsay witness, who has supported the prosecution case as P.W.9 corroborating her evidence. Therefore, this decision does not help the petitioner. In the case of Md. Sajid Hussain @ Md. Sajeed (Supra), it has been held that the discretion under Section 319 Cr.P.C. has to be exercised very sparingly with caution and only when the concerned court is satisfied that some offence has been committed by such person that petitioner has also been dismissed on the ground that there was material before the court for issuing summon under Section 319 Cr.P.C. In this circumstance, this decision is also not helpful to the petitioner. In the case of Michael Machado & Anr. (Supra), it has been held that 49 witnesses had been examined by the Magistrate and none has made any allegation against 8 the accused only the 3 remaining witnesses had made reference about the role of the accused in the offence and in that case it was held that the evidence was insufficient to make out the case against the appellants and it was held that there was no justification for proceeding against the appellants by recommending entire trial afresh. In my humble opinion, this decision is also not helpful to the petitioner in the facts and circumstances stated above. For the reasons stated above, I do not find any ground to interfere with the impugned order. This petition is dismissed. V.K. Pandey ( Amaresh Kumar Lal, J.)