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2005 DIGILAW 1391 (RAJ)

Om Prakash v. State of Rajasthan

2005-05-09

H.R.PANWAR

body2005
Honble PANWAR, J.–By the instant Criminal Revision Petition under Section 397/401 Code of Criminal Procedure, 1973 (for short `the Code hereinafter) the petitioner-complainant has challenged the order dated 8.4.2004 passed by the Additional Sessions Judge (Fast Track), No. 2, Bikaner (for short `the Trial Court hereinafter) in Sessions Case No. 39/2003 whereby the Trial Court dismissed the application filed by the petitioner through Additional Public Prosecutor under Section 319 of the Code. Aggrieved by the order impugned, the petitioner has filed the instant revision petition. (2). The facts and circumstances giving rise to the present revision petition are that the petitioner complainant lodged a First Information Report at Police Station Gajner District Bikaner on 1.9.2002 inter alia alleging therein that he along with his uncle Durgaram the deceased, Bakhtaram, cousin Laxmanram and Pritamsingh was working in the agriculture field. They went to the field in the jeep of deceased Durgaram. While they were working in the field on 31.8.2002, at about 4.30-5.00 PM, Naraindan, Shiv Dan, Kushaldan all sons of Rughnathdan, Naraindan, Bhagwandan, Shabhudan sons of Mohandan, Harudan S/o Vijaydan, Vasudev, all by caste Charan came to the filed of the complainant in a tractor having arms in their hands. Naraindan and Shivdan S/o Rughnathdan were having Barchis in their hands and others had Barchi, Bhala and Lathi in their hands. Naraindan S/o Rughnathdan told that today is chance to kill the complainant and others. All the accused persons named hereinabove surrounded the complainant and others in the field and attacked them. Naraindan S/o Rughnathdan inflicted Barchi blow on the head of Durgaram the deceased due to which he fell down and all the accused persons named in the FIR started beating the deceased. The complainant and other tried to rescue, they were also beaten. Shivdan gave a Barchi blow on his hand, due to which he fell down. Thereafter, others gave beating. On hearing hue and cry, neighbour Mularam came and took them to PBM Hospital, Bikaner, where Durgaram succumbed to injuries. On this report, the police registered crime report No. 35 dated 1.9.2002 for the offence under Sections 302, 307, 447, 147, 148 and 149 IPC against eight persons including respondents No. 2, 3 and 4. The investigation ensued and after usual investigation, police filed challan against Naraindan, Shivdan, Kushaldan Sons of Rughnathdan, Bhagwandan S/o Mohandan and Harudan S/o Vijaydan for the offences noticed above. The investigation ensued and after usual investigation, police filed challan against Naraindan, Shivdan, Kushaldan Sons of Rughnathdan, Bhagwandan S/o Mohandan and Harudan S/o Vijaydan for the offences noticed above. However, respondents No. 2, 3 and 4 were left out and were not challaned by the police on the ground of alibi. The Trial Court framed charges for the offences noticed above against accused persons who were challaned by the police and proceeded with the trial of the case. (3). The Prosecution examined PW-1 Om Prakash the petitioner, on 2.9.2003, PW-2 Mularam on 3.9.2003 and PW-3 Preetam Singh on 5.9.2003. After the statement of these witnesses, an application under Section 319 of the Code was filed by the petitioner through Additional public prosecutor conducting the session case requesting therein that from the evidence produced before the court during trial prima-facie it establishes that the respondents No. 2, 3 and 4 who were not being accused in the case have also committed the offences noticed above, for which they be tried together with the accused facing trial on taking cognizance against them. By the order impugned dated 8.4.2004, the Trial Court dismissed the said application. Aggrieved by the order impugned, the petitioner has filed the instant revision petition. (4). I have heard learned counsel for the petitioner as well as the public prosecutor and the counsel appearing for the contesting respondents No. 2 to 4. Perused the order impugned and challan papers as well as the statement of witnesses recorded by the Trial Court PW-1 Om Prakash, PW-2 Mularam and PW-3 Preetam Singh. (5). It is contended by the learned counsel for the petitioner that the respondents No. 2, 3 and 4 were specifically named in the FIR which was lodged promptly soon after the occurrence. In the FIR it has been alleged that the respondents No. 2, 3 and 4 along with the five accused persons who have been challaned by the police, all came in a tractor armed with deadly weapons, surrounded the petitioner, Durgaram, Bakhtaram, Laxmanram and Preetamsingh and suddenly all the accused persons named in the FIR attacked and caused injuries to them. At the time of occurrence, on hearing cries, PW-2 Mularam came from neighbouring field. At the time of occurrence, on hearing cries, PW-2 Mularam came from neighbouring field. It is further contended that the injuries assigned to the respondents No. 2, 3 and 4 fully corroborate with the injuries suffered by the petitioner PW-1, PW-4 Preetam Singh and deceased Durgaram. Deceased Durgaram suffered as many as 17 injuries and there is specific allegation that the accused challaned by the police and the respondents No. 2, 3 and 4 all of them surrounded the complainant and other persons and after having inflicted Barchi blow by Naraindan S/o Rughnathdan on the head of the deceased, he fell down and other persons including the respondents No. 2, 3 and 4 gave beating to deceased Durgaram who suffered as many as 17 injuries and therefore right from the lodging of FIR, the case of the prosecution is consistent that apart from the five accused persons challaned by the police, the respondents No. 2, 3 and 4 were the aggressor and equally participated in the commission of crime by causing injuries to the deceased and other injured persons. It was further contended by the learned counsel for the petitioner that the Trial Court fell in error in appreciating the evidence very minutely at the stage of deciding the application u/s 319 of the Code and attached undue weightage to the plea of alibi set up by the respondents No. 2, 3 and 4 during police investigation and therefore, the order impugned is bad in law. (6). Public prosecutor supported the contentions raised by the learned counsel for the petitioner. (7). Learned counsel for the respondents No. 2, 3 and 4 supported the order of the court below and contended that after proper investigation, police did not find the respondents No. 2, 3 and 4 prima-facie involved in the case and also noticed that these three respondents were not present at the time of occurrence. On careful perusal of the FIR, which appears to have been lodged promptly after the occurrence, apart from five accused persons challaned by the police, the present respondents No. 2, 3 and 4 have been specifically named with their parentage and specific overt acts have been assigned to them, though it is not the requirement that in the first information report every minute detail is required to be mentioned. In the statement of the injured persons, the overt act has been assigned to the respondents No. 2, 3 and 4. The case of the prosecution is consistent right from the lodging of the FIR that the respondents No. 2, 3 and 4 and five other accused persons challaned were the aggressor, they came to the field of the complainant in a tractor armed with deadly weapons and surrounded the persons working in the filed and started giving beating. Not only this, these witnesses clearly stated in the manner in which the accused persons challaned by the police and the respondents No. 2, 3 and 4 caused injuries to the complainant PW-1, Pritam Singh PW-3 and deceased Durgaram. PW-1 Om Prakash in his statement before the Court on Oath has specifically named respondents No. 2, 3 and 4 with their parentage apart from five other accused who have been challaned by the police and facing trial. He has stated that Naraindan, Shivdan and Kushaldan S/o Rughnathdan, Naraindan, Bhagwandan, Shambhudan S/o Mohandan, Vasudev S/o Hajaridan, Harudan S/o Vijaydan, all the accused persons came in tractor to the complainants field armed with weapons. Naraindan and Shivdan had Barchies, Naraindan S/o Mohandan, the respondent No. 2, Bhagwandan S/o Mohandan also had barchies, Kushaldan had Bhala, Shambhudan respondent No. 3, Vasudev respondent No. 4 and Harudan had lathies and suddenly Naraindan S/o Rughnathdan exhorted the accused persons to kill the complainant party and thereupon the complainant party was surrounded by all the eight accused persons. Naraindan S/o Rughnathdan gave Barchi blow on the head of Durgaram, upon which he fell down and thereafter he was assaulted by all the eight persons. The statement of this witness finds corroboration from the medical evidence. From the perusal of the Post Mortem report of deceased Durgaram, it appears that deceased Durgaram apart from Barchi blow on the head suffered as many as 17 injuries. This witness clearly stated that Durgaram upon sustaining head injury in the hands of Naraindan S/o Rughnathdan fell down and all accused persons including respondents No. 2, 3 and 4 inflicted injuries to Durgaram the deceased. Apart from the injuries caused to deceased by accused challaned and the respondents Nos. 2, 3 and 4, the respondents No. 2, 3 and 4 also inflicted injuries to PW-3 Preetam Singh. Apart from the injuries caused to deceased by accused challaned and the respondents Nos. 2, 3 and 4, the respondents No. 2, 3 and 4 also inflicted injuries to PW-3 Preetam Singh. Similarly, PW-3 Preetam Singh, the injured eye witness also stated in his statement before the the Court on Oath that apart from five accused persons challaned, the respondents No. 2, 3 and 4 came in a tractor of the complainant armed with deadly weapon and Naraindan S/o Rughnathdan exhorted that today it is chance to kill the complainant party, thereupon the accused challaned and the respondents No. 2, 3 and 4 who have been named in the FIR and the statement of PW-3 with their parentage, surrounded the complainant party. Naraindan S/o Rughnathdan inflicted Barchi blow on the head of Durgaram, upon which he fell down and all the eight persons inflicted injuries to deceased Durgaram. This witness clearly stated that respondent No. 4 Vasudev suddenly came from behind and inflicted lathi blow on his left hand and right shoulder. Due to the injuries caused by the respondent No. 4 Vasudev, he sustained a fracture injury on the left hand. He also stated that respondent No. 3 Shambhudan inflicted injury on his right specular region. From the perusal of the injury report of PW-3 Preetam Singh as also the report of Radiologist, his statement is fully corroborated with the medical evidence. The injured had suffered injuries on the part of body stated by him which is evident from the medical evidence. So is the case of respondent No. 2 Naraindan S/o Mohandan. Not only this, even the case of the defence is that when PW-3 fell down he was assaulted by respondent No. 3 Shambhudan and respondent No. 4 Vasudev. PW-2 Mularam an independent witness, who was in the neighbouring field where the occurrence took place, on hearing hue and cry rushed up to the spot and noticed that apart from five accused persons challaned by the police, respondents No. 2, 3 and 4 were armed with weapons and found at the place of occurrence where the injured persons including deceased Durgaram were lying. Therefore, the presence of respondents No. 2, 3 and 4 along with other five accused persons prima-facie has been established by the evidence of these witnesses. Therefore, the presence of respondents No. 2, 3 and 4 along with other five accused persons prima-facie has been established by the evidence of these witnesses. There being such a strong evidence before the Trial Court connecting the respondents No. 2, 3 and 4 with the commission of crime, the Trial Court fell in error in dismissing the application seeking impleadment of the respondents No. 2, 3 and 4 as accused to be tried along with accused facing trial, merely on the conclusion arrived at by the police on the basis of plea of alibi of these respondents. The conclusion arrived at by the police cannot be said to be conclusive proof that the respondents No. 2, 3 and 4 did not participate in commission of the crime and were not present. What was required by the Trial Court was to consider the evidence produced by the prosecution during the trial and if from the evidence produced before it during trial, it appears that any person not being accused has committed any offence for which such persons could be tried together with the accused, the Trial Court ought to have proceeded against such persons. In the instant case, it appears that the Trial Court has minutely appreciated the evidence as if the Trial Court is deciding the case finally after conclusion of the trial. (8). In Smt. Bhouti vs. State of Rajasthan and Anr., 1998 Cr.L.R. (Raj.) 151, this court held that at the time of deciding application under Section 319 of the Code, the Trial Court is not required to appreciate the evidence minutely. In that case, the name of accused sought to be impleaded u/s 319 of the Code was already disclosed in the FIR at the earlier point of time. The defence of accused was one of alibi which is a matter of evidence and cannot be decided at this stage. In the case, there was evidence of three eye witnesses who have given the name of the accused therein in their statement. However, learned trial Judge in that case, was of the opinion that independent witnesses have not implicated the accused sought to be impleaded and not shown his presence at the time of commission of offence and therefore, the trial Judge was of the opinion that the accused sought to be impleaded was not there at the time of commission of offence. This Court held that reasoning given by the trial Judge is wholly unsustainable. Even on the conclusion of the trial, the learned Judge has to consider the evidence of other witnesses along with independent witnesses. If the evidence of other witnesses is found otherwise acceptable, then there is no reason for the Court not to convict the accused against whom there is an evidence. (9). In State of Rajasthan vs. Mangilal, 2002 (2) Cr.L.R. (Raj.) 839 = RLW 2003(1) Raj. 285 this Court held that Section 319 of the Code gives simple powers to any Court to take cognizance and add any person not being an accused before it and try him alongwith the other accused. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence, the Court can take cognizance against them and try them along with the other accused. But this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. (10). It was further held that the expression ``any person not being the accused occurring in Section 319 of the Code clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Sec. 319 (1) of the Code clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression. Both u/ss. 193 & 209 of the Code the commitment is of ``the case and not of ``the accused vide Joginder Singh vs. State of Punjab, AIR 1979 SC 339 . (11). In Rakesh & Anr. vs. State of Haryana (2001) 6 SCC 248 , the Honble Supreme Court held that although power under Section 319 of the Code should be sparingly exercised but where prosecution witnesses name certain persons as being involved in a serious crime, their addition as accused in exercise of power would not be unwarranted. (11). In Rakesh & Anr. vs. State of Haryana (2001) 6 SCC 248 , the Honble Supreme Court held that although power under Section 319 of the Code should be sparingly exercised but where prosecution witnesses name certain persons as being involved in a serious crime, their addition as accused in exercise of power would not be unwarranted. The Apex Court further held that on the basis of evidence of the prosecution witnesses, other persons can be arraigned as accused and while doing so, cross-examination of such witnesses is not necessary because the opportunity to cross- examine such witnesses would be available to such person at the time of trial. (12). In Michael Machado and Another vs. Central Bureau of Investigation and Another reported in 2000 S.C.C. (Cri.) 609 the Honble Supreme Court observed as under :– ``The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It was further observed as under :– ``But even then, what is conferred on the court is only a direction as could be discerned from the words ``the court may proceed against such person. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has already proceeded and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty of the court to proceed against other persons. (13). In Aamin vs. State of Rajasthan & Ors. 2004 (2) Cr.L.R. (Raj.) 1129 this Court held that the plea of alibi as taken by any of the accused persons can only be proved by them in their defence. It must be remembered that there is no compelling duty of the court to proceed against other persons. (13). In Aamin vs. State of Rajasthan & Ors. 2004 (2) Cr.L.R. (Raj.) 1129 this Court held that the plea of alibi as taken by any of the accused persons can only be proved by them in their defence. At the time of deciding application u/s 319 of the Code, the Court has only to see whether as per the the First Information Report, the injury reports, the statements recorded by the police as also the Court, some prima-facie case is made out against the accused persons for the offence alleged against them, then the court should take cognizance of offence against such persons and array them as accused. At the state of deciding application u/s 319 of the Code, no conclusive finding could be and should have been given by the Court. (14). In the instant case, the prosecution filed an application under Section 319 of the Code soon after injured eye witnesses and independent witnesses were examined which is evident from the facts stated hereinabove that PW-1 Om Prakash was examined on 2.9.2003, PW-2 Mularam was examined on 3.9.2003, PW-3 Preetam Singh was examined on 5.9.2003 and PW-4 Mahesh Dan was examined on 14.10.2003. On 14.10.2003 itself, the prosecution moved the application u/s 319 of the Code. Therefore, it cannot be said that the trial is at the stage of conclusion. No doubt, Section 319 of the Code confers discretionary power to be exercised by the Court, it is settled law that discretion has to be exercised judiciously. At that stage, it cannot be said that the witnesses examined were quite large and therefore, there can be no impediment for recalling those witnesses for re-examination and cross-examination. (15). Learned counsel for the respondents No. 2 to 4 has relied on decisions of this Court in Sura Ram vs. State of Rajasthan, 2003 (3) R.C.C. 1377, Khet Singh vs. State of Rajasthan, 2003 (3) R.C.C. 1467 = RLW 2004(1) Raj. 673 and Duni Chand & Anr. vs. State of Rajasthan & Ors. 2004 (1) R.C.C. 251. (16). (15). Learned counsel for the respondents No. 2 to 4 has relied on decisions of this Court in Sura Ram vs. State of Rajasthan, 2003 (3) R.C.C. 1377, Khet Singh vs. State of Rajasthan, 2003 (3) R.C.C. 1467 = RLW 2004(1) Raj. 673 and Duni Chand & Anr. vs. State of Rajasthan & Ors. 2004 (1) R.C.C. 251. (16). In the case of Sura Ram (supra), it was held by this Court that for invoking the powers under Section 319 of the Code, the condition is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It was further held that revisional jurisdiction of the High Court is not to be lightly exercised when it is invoked by a private complainant. (17). In Khet Singhs case (supra), it was found that there were material contradictions in the statement of prosecution witnesses. The names of the accused sought to be arraigned did not find mention in the FIR. Not only this, there was a specific statement of complainant in Ex.D-5 that except accused Tan Singh none gave beating to him. In view of this, this Court refused to interfere. (18). In Duni Chand and Anr.s case (supra), this Court held that it is well settled that the powers of the court conferred by the Section 319 Cr.P.C. are extraordinary and should be used sparingly. It appears from the record that the four witnesses have made improvement in their statement in the Court inasmuch as that they have not attributed cruelty in her statement under Section 161 Cr.P.C. (19). In this view of the matter, the judgment relied on by the learned counsel for the respondents No. 2 to 4 turn on its own facts and are of no help to the contesting respondents. (20). In view of the evidence discussed herein above, and law laid down by the Honble Supreme Court and this Court, there is prima-facie evidence that apart from the accused challaned, the respondents No. 2, 3 and 4 having common object and knowledge, committed trespass on the field of the complainant and caused injuries to deceased and the injured persons noticed above. In my considered view, the Trial Court fell in error in not invoking the provision of Section 319 of the Code and arraigning respondents No. 2, 3 and 4 as accused to be tried together with the accused facing trial. (21). Consequently, the revision petition succeeds and is allowed. The order impugned dated 8.4.2004 is hereby set aside. Application under Section 319 of the Code is allowed. Respondents No. 2, 3 and 4 are arraigned as accused in Sessions Case No. 39/2003 and the Trial Court shall secure their presence by non- bailable warrant and they shall be tried together with the accused facing trial. The stay petition also stands disposed of.