1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CRIMINAL REVISION PETITION NO. 583/2009 Govind vs. State of Rajasthan & Ors. Date of Order: 07/08/2009 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Reportable Mr. Mukesh Kumar Goyal, for the petitioner. Mr. Javed Choudhary, Public Prosecutor. Mr. Hari Krishna Sharma, for non-petitioners. In this revision petition, the petitioner has sought to challenge the order dated 20.03.2009 passed by the learned Additional District & Sessions Judge (Fast Track) No.2, Karauli, whereby his application under Section 319 Cr.P.C was rejected. 2. In brief, the facts of the case are that the complainant petitioner had lodged a report on 01.11.2007 with the allegation that his daughter, namely Pyar Bai, had died on account of tendering a poisonous substance with kerosene to her by Ramdhan, Smt. Rajanti and Raghuveer Mali. On the said report, an FIR was registered against all the three persons for the offence under Section 304-B IPC. Thereafter, the investigation commenced and statements of witnesses were recorded wherein they had levelled allegations against the accused persons. It is the case of the prosecution that another daughter of the petitioner, namely Jamna Bai, married in the same family, is the eye-witness of the incident. On conclusion of the investigation, the police filed charge-sheet only against Raghuveer for the offences under Section 304-B IPC. The investigation against Ramdhan and Smt. Rajanti Bai was kept 2. pending under Section 173 (8) Cr.P.C. The concerning Magistrate then took cognizance against the accused Raghuveer and committed the case to the Sessions Court. Subsequently, during the course of trial, the statements of the prosecution witnesses were recorded. The petitioner had then filed an application under Section 319 Cr.P.C. for taking cognizance against Ramdhan and Smt. Rajanti Bai. But the said application was dismissed by the learned trial court on 07.01.2009. Feeling aggrieved of the said order, the complainant petitioner preferred a revision petition before the High Court (No.162/2009) and the same came to be decided on 09.02.2009 with the direction that the application under Section 319 Cr.P.C. be decided afresh keeping in view the statements of Govind (PW- 1), Jamna Bai (PW-13) and Swaroopi (PW-14). Thereafter, the learned trial court considered the application again and dismissed the same by its impugned order dated 20.03.2009. Hence, this revision petition. 3. It has been submitted by the counsel for the petitioner that allegations against non-petitioners Ramdhan and Rajanti Bai had been made in the First Information Report as well as in the evidence recorded during the course of investigation. But even then the police had filed challan only against one person on 24.03.2008 and had kept the investigation pending against the non-petitioners, under Section 173 (8) Cr.P.C. Later on, the police proceeded to close the investigation against the non-petitioners by filing an application under Section 169 Cr.P.C. before the learned trial court on 3. 25.09.2008. Further, he has submitted that the evidence against the non-petitioners had come on record, during the course of trial, in the statement of the prosecution witnesses. He has also submitted that the learned trial court had erroneously rejected the application filed by the petitioner under Section 319 Cr.P.C. and the same is contrary to the provisions of law as well as the principle of law laid down by the Apex Court. In support of the submissions, he has placed reliance on the cases of Shashikant Singh vs. Tarkeshwar Singh & Anr., (2002) 5 SCC 738; Ramji Lal & Ors. vs. State, 2006 (4) WLC (Raj.) 678; Lok Ram vs. Nihar Singh & Anr., (2006) 10 SCC 192; Bholu Ram vs. State of Punjab & Anr., 2008 (2) WLC 653; Mohd. Umar Bhai vs. State of Rajasthan, 2008 WLC (Raj.) 39; Ram Pal Singh & Ors. vs. State of Uttar Pradesh & Anr., (2009) 4 SCC 423 and Jitendra Singh vs. State of Rajasthan & Anr., (S.B. Cr. Revision Petition No. 694/2009, decided on 09.07.2009. 4. On the other hand, the learned counsel for non- petitioners has supported the order passed by the learned trial court and submitted that no illegality has been committed in it so as to call for any interference by this Court. He has also submitted that in view of the fact that the prosecution evidence is over and the trial has proceeded substantially, the provisions under Section 319 Cr.P.C. should not be invoked at this stage. In support of the submissions, he placed reliance on the cases of Michael Machado & Anr. vs. Central Bureau of Investigation & Ors, 2000 Cr.L.J. 1706, Ram Chandra vs. 4. State of Rajasthan, 2003 Cr.L.J. 3420 and Krishnappa vs. state of Karnataka, 2004 (2) WLC (SC) 636. 5. Having considered the submissions made by the counsels for the rival parties, on careful perusal of the statements of the prosecution witnesses and the case law relied upon by the parties, I am of the considered opinion that this revision petition has merit. After recording of the statements of some of the prosecution witnesses, the complainant petitioner had filed an application under Section 319 Cr.P.C. which was rejected by the learned trial court on 07.01.2009. The said order was challenged by the complainant petitioner by way of revision petition before this Court and the same was decided on 09.02.2009 with the direction to the learned trial court to reconsider the matter and decide the said application afresh. The learned trial court has passed the impugned order on 20.03.2009, in a somewhat similar manner as he had done earlier on 07.01.2009. So far as the directions given by the High Court to consider the application under Section 319 Cr.P.C. in the light of the statements of witnesses named therein, the learned trial court had decided the matter in the manner as under:- “अतः इन तीनो गवाहान कȧ साआय का ǒवƲेषण, िचǑक×सकȧय साआय कȧ रोशनी मɅ व अÛय पǐरǔःथितयɉ मɅ Ǒकया जाता है तो ǒवƳसनीय साआय नहȣं रह जाती है | इस ूकार उपरोƠ ǒववेचन के ूकाश मɅ पǐरवादȣ का ूाथ[ना पऽ िनरःत Ǒकये जाने योÊय है |” Therefore, the learned trial court had again dismissed the application filed by the petitioner under Section 319 Cr.P.C. in the terms that after analysing the statements of the witnesses 5. in the light of medical evidence on record and on considering the other circumstances, the said evidence does not come out to be reliable. In other words, the learned trial court has dismissed the application by evaluating and assessing the prosecution evidence at this stage and by holding that the said evidence is not convincing/reliable. Such an approach of the learned trial court, in my considered opinion, is wholly erroneous. This view of mine is supported by the principle laid down by the Apex Court in the case of Bholu Ram (supra), wherein it was held, in para 66 and 70, as under:- “66. In our considered opinion, the Revisional Court was not justified in entering into correctness or otherwise of the evidence at the stage of issuance of summons to respondent No.2. Admittedly, the Judicial Magistrate had considered a limited question whether on the basis of evidence of prosecution witnesses, prima facie offence had been made out against respondent No.2. He was, on the basis of such evidence, was satisfied that the case was required to be gone into and issued a summons. To us, the Revisional Court was not right in interfering with that order. Hence, even on that ground, the order was not in accordance with law.” “70. It was also urged that no applications by the appellant could have been entertained by the trial Court after about 8 to 10 years from the date of filing of FIR. Now, an application under Section 319 of the Code can only be made to a Court and the Court may exercise the power under the said Section if it appears from evidence that any person other than the accused had also committed an offence for which he can be tried together with the accused. It was the case of the appellant that it was during the course of prosecution evidence that he came to know that signatures of respondent No.2 were sent for examination, some report was received by the prosecution which was not produced in Court and on the basis of such evidence, the case was made out against respondent No.2. If in 6. these circumstances, applications were made and the prayer was granted, we see no infirmity therein.” 6. In a similarly situated case, the Apex Court in the case of Ram Pal Singh (supra) wherein the learned trial court had twice dismissed the applications under Section 319 Cr.P.C., even though the High Court had once issued direction and the accused were named in the FIR had held, in para 16 to 19, as under:- “16. We have carefully considered the submissions made on behalf of the respective parties and the provisions of Section 319 Cr.P.C. and have arrived at the conclusion that no interference is called for with the order passed by the High Court.” “17. The ingredients of Section 319 are unambiguous and indicate that where in the course of inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence, for which such person could be tried together with the accused, the Court may proceed against such person for the offence he has committed.” “18. All that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. It is also clear that the discretion is left to the Court to take a decision on the matter.” “19. In the instant case, although, the appellants were named in the F.I.R., they were not named as accused in the charge- sheet during the trial. However, P.W.1 in his evidence, has named the appellants as persons who were involved in the incident causing the death of Brijesh Kumar Singh and injuries to Manvender Singh. Despite the above, the trial Court, on two separate occasions, rejected the prayer made by the Respondent No.2 for summoning the 7. appellants herein under Section 319 Cr.P.C. The High Court, after considering the evidence of P.W.1, Kamlesh Singh, thought it necessary for the appellants to be summoned.” 7. This Court in a recent judgment delivered on 09.07.2009, in the case of Jitendra Singh (supra), in para 5 and 6, had held as under:- “5. I have given my thoughtful consideration to the submissions made by the counsel for the rival parties. In the instant case, the non- petitioner No.2 and 3 were named in the First Information Report and also in the statements of some of the witnesses under Section 164 Cr.P.C. But, they were not named as accused in the charge-sheet and the Investigation Agency had kept the investigation pending against them, under Section 173 (8) Cr.P.C. During the course of trial, the allegations against the non-petitioner No. 2 and 3 had been made by Usha Devi (PW-9), Meena Devi (PW-10), Jitendra Singh (PW-11), Madhu (PW- 13) and Sonu (PW-14). The evidence on record, as on date, prima facie satisfies to implead the non-petitioner No. 2 and 3 as accused and proceed against them. It is to be noted that in this case, the deceased Sanju @ Reena had died because of burn injuries, which were 100%. The death had occurred after about four years of the marriage. The prosecution case also is that there has been demand of one lac rupees and one motorcycle from the deceased and she was beaten by the aforesaid members of the in-laws family.” “6. The principle of law is well settled that all that is required by the Court for invoking its powers under Section 319 Cr.P.C. is to be satisfied that from the evidence adduced before it, a person against whom no charge had been framed, but whose complicity appears to be clear, should be tried together with the accused. Keeping in view, the said principle, it is clear in the instant case that the non-petitioner No. 2 and 3 had been named in the First Information Report and allegations had been made against them by the aforesaid prosecution witnesses, during the course of trial. In my considered opinion, there is sufficient evidence on record to implead the 8. non-petitioners as accused persons. The learned trial court has erred in considering the matter as if it was finally deciding the case on the conclusion of the trial, which is not the stage at present. Therefore, it would be just and proper that the non-petitioner No. 2 and 3 be summoned to face trial alongwith other co- accused.” 8. For the aforesaid reasons, I am of the considered opinion that in view of the facts and circumstances of the case, the evidence on record, particularly that of Jamna Bai (PW-13) and Saroopi (PW-14) and the fact that the learned trial court had misdirected itself in going into the analysis, appreciation and evaluation of the prosecution evidence on record so as to hold that the evidence of the aforesaid three prosecution witnesses was not reliable, the impugned order dated 20.03.2009 is not sustainable. 9. Consequently, this revision petition is allowed. The impugned order dated 20.03.2009 passed by the learned Additional District & Sessions Judge (Fast Track) No.2, Karauli is hereby quashed and set aside. The application filed by the complainant petitioner under Section 319 Cr.P.C. stands allowed. The learned trial court is directed to proceed further. (RAGHUVENDRA S. RATHORE),J. tikam/-Jr.P.A. Item no.s-1