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2003 DIGILAW 445 (MP)

Tarunendra Bahadur v. State of M. P.

2003-03-25

S.K.PANDE

body2003
JUDGMENT Heard. Impugned order dated 22.4.1996 passed by 1st ASJ., Sidhi in S.T. No. 95/95 perused. On the basis of FIR dated 6.4.1995 in Crime No. 154/95 of P.S. Kotwali, Sidhi, accused persons Mangleshwar Singh, Jeetnarayan Sitasharan, Pushpendra Singh were charge sheeted under section 302, 201/34 IPC in the matter of causing homicidal death of Ramdayal Surajbhan Sahu, Babulal Sahu were examined by the police during the course of investigation. Their statements under section 161Cr. P.C. are Annexure II and III respectively. Babulal (PW 7) was examined in the Court of ASJ on 4.4.1996 and in para No.4 said to have stated that the deceased Ramdayal was beaten by the accused persons, charge sheeted in Crime No. 154/1995 at the instance of petitioner Tarunendra Bahadur Singh alias Babu Singh in his presence. On the basis of this statement (Annexure v), Surajbhan preferred an application under section 319 CrPC requesting to implead the petitioner as an accused in S.T. No. 95/95. Vide impugned order dated 22.4.1996, the application was allowed and petitioner Tarunendra Bahadur Singh, S/o Babu Singh, aged 50 years, was directed to be impleaded as an accused to face the trial in the aforesaid Session trial alongwith others. This order dated 22.4.1996 has been challenged in this revision on the ground, that there was no material available before the Court on the said date to say that the petitioner Tarunendra Bahadur Singh was present on the spot where Ramdayal was beaten and that the incident was at his instance. Surajbhan Sahu, who made an application u/s 319 CrPC was examined by the police on 6.4.1995 (annexure II) and the eye witness Babulal was also examined on the same day (Annexure III). In these statements under section 161 CrPC the witnesses never made a reference of the petitioner Tarunendra Bahadur Singh. For the first time in statement dated 2.4.1996 the presence of the petitioner at the alleged beating by accused persons to the deceased was stated by PW 7 Babulal. This part of the statement of Babulal, deserves a close scrutiny with reference to cross-examination para 11 that in statement (Annex. III) petitioner was not named by him during the investigation. For the first time in statement dated 2.4.1996 the presence of the petitioner at the alleged beating by accused persons to the deceased was stated by PW 7 Babulal. This part of the statement of Babulal, deserves a close scrutiny with reference to cross-examination para 11 that in statement (Annex. III) petitioner was not named by him during the investigation. Section 319 CrPC reads as under: "Where, in the course of any 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 which he appears to have committed." The provision under section 319 CrPC be read with the dictum laid down in AIR 2000 SC 1127 (Michael Machado v. Central Bureau of Investigation). Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned, the Court should refrain from' adopting such a course of action u/s 319 CrPC. It is stated at the bar that S.T. No. 95/95 in the Court of 1st ASJ., Sidhi, resulted into acquittal as against Pushpendra Singh and Sitasharan vide judgment dated 29.8.1997. In the light of the aforesaid, the impugned order dated 22.4.1996 passed by the 1st A.S.J., Sidhi, in S.T. No. 95/95 allowing application of Surajbhan Sahu u/s 319 CrPC cannot be upheld. The revision is accordingly allowed, the impugned order is set-aside.