JUDGMENT 1. - By way of this revision petition petitioner Har Lal, complainant before the trial Court has challenged the legality of the Order dated 07.04.2010 passed by the learned Addl. District & Sessions Judge, [First Track] No. l, Bikaner by which the learned trial Court dismissed the application filed by the petitioner under Section 319 of the Criminal Procedure Code wherein prayer of petitioner was for taking cognizance against non-petitioner No.2 to 4, i.e. Trilok Chand S/o Keshu Ram, Smt. Sayari W/o Trilok Chand and Hukum Chand S/o Trilok Chand, under Sections 498-A and 306 IPC. 2. The case of the prosecution is that a First Information Report was lodged by the petitioner Har Lal in the Police Station Women, Bikaner on 27.06.2009 at 12.30 PM lodged a written report alleging that his three daughters have got married in the family of Trilok Chand. He further stated that after two months of marriage of her two daughters Pushpa and Suchitra, time and again they were harrased for demand of dowry by their in laws. He further stated that that in the Year 2007 he filed a case against the in laws of his daughters and after the compromise the same was with drawn and his daughters were sent to their in laws house and after two months of compromise in laws of Pushpa and Suchitra were again demand the dowry. On 26.06.2009. a call made by Pushpa through which she informed that again demand of dowry i.e. for cash amount and motor cycle is demanded by her in laws. Her Lal further stated in his written report that he sent his son Dinesh to the house of Pushpa where Dinesh saw' that his sister was beaten by her in laws namely Rajendra, Smt. Sayari Devi, Heera Lal, Smt. Anchu Devi, Trilok Chand and Hukum Chand. At about 4.00 PM Pushpa again called at her maternal house and informed her' maternal that her in law's are making a plan to kill her. On this information, complainant along with 4-5 persons went to Rani Bazar, there they came to know that Pushpa has been burnt by pouring kerosene and she was admitted to PBM Hospital, Bikaner where she was in in conscious position and at about 10.00 PM she died, was received. On this information, complainant along with 4-5 persons went to Rani Bazar, there they came to know that Pushpa has been burnt by pouring kerosene and she was admitted to PBM Hospital, Bikaner where she was in in conscious position and at about 10.00 PM she died, was received. On the basis of that report, a Sessions Case No. 3/2010 was registered at Police Station Women and investigating commenced. After investigation, police filed charge sheet against three accused persons namely Rajendra, Heera Lal, Smt. Anandu leaving behind three persons namely Trilok Chand, Sayari and Hukum Chand whose names were there in the First information Report. 3. All the three accused persons namely Rajendra, Heera Lal, Smt. Anandu were tried by the learned trial Court and after recording the evidence of 24 prosecution witnesses, complainant Har Lal filed an application under Section 319 Criminal Procedure Code and by way of impugned Order dated 07.04.2010, the learned trial Court dismissed above application. 4. Aggrieved by the above Order, the present petitioner Har Lal filed this revision praying for quashing the Order dated 07.04.2010 and Ordered to summon three persons Trilok Chand, Sayari and Hukum Chand in the above trial. 5. Learned counsel for the petitioner submits that although in the first dying declaration recorded by the Police Officer and second dying declaration recorded by the Magistrate, there is no specific allegations against the respondents No. 2 to 4 Trilok Chand, Sayari and Iiukum Chand, however, in the statement recorded during the trial PW 3 Dinesh deposed in his examination-in-chief that when he reached the in laws house of his sister Pushpa then Rajendra, Heera Lal, Anandu Devi, Sayari Devi, Hukum Chand and Trilok Chand were beating Pushpa and he informed about the incident to his mother and father. Counsel for the petitioner submits that learned trial Court refused to summon respondents No. 2 to 4 namely Trilok Chand, Sayari and Hukum Chand on the ground that PW 3 Dinesh deposed this evidence in furtherance to the improvement of his earlier statement recorded under Section 161 Criminal Procedure Code. Learned counsel for the petitioner contended that even if there is improvement in his earlier then too also it cannot be appreciated at this stage because on the basis of this statement there is sufficient evidence to take cognizance against respondents No. 2 to 4, Trilok Chand, Sayari and Hukum Chand. 6. Learned counsel for the petitioner contended that even if there is improvement in his earlier then too also it cannot be appreciated at this stage because on the basis of this statement there is sufficient evidence to take cognizance against respondents No. 2 to 4, Trilok Chand, Sayari and Hukum Chand. 6. Learned counsel for the respondent No. 2 to 4 Trilok Chand, Sayari and Hukum Chand contended that learned trial Court has rightly held that statement of PW 3 Dinesh cannot be relied upon at this stage because he implicated the name of three persons three accused persons namely Trilok Chand, Sayari and Hukum Chand and after making improvement in his earlier statement recorded under Section 161 Criminal Procedure Code. And further in dying declaration recorded by the Police Officer as well as by the Magistrate there were no allegations against the respondents No. 2 to 4 namely Trilok Chand, Sayari and Hukum Chand, therefore, the Order passed by the learned trial Court does not suffer from any illegality, irregularity or impropriety. 7. Learned counsel for the petitioner in support of his arguments relied upon the judgment of the Hon'ble Apex Court in the matter of Lok Ram v. Nihal Singh & Anr., reported in (2006) 3 SCC (Cri.) 532. In the above cited case Hon'ble Apex Court held that the word "evidence" in Section 319 Cr.P.C. contemplates the evidence of witnesses given in Court. The trial Court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge sheet or the case diary, because such materials contained in the charge sheet or case diary do not constitute evidence. 8. In view of the above judgment of the Hon'ble Apex Court, the statement of PW 3 Dinesh alleging that respondents No. 2 to 4 Trilok Chand, Sayari and Hukum Chand were at the place of occurrence and all these persons were beating her sister Pushpa. The Order of the learned trial Court cannot be said to be proper, legal or perverse. 9. I have given my thoughtful consideration to the submissions advanced by counsel for the parties. The Order of the learned trial Court cannot be said to be proper, legal or perverse. 9. I have given my thoughtful consideration to the submissions advanced by counsel for the parties. In the instant case, respondents No. 2 to 4 namely Trilok Chand, Sayari and Hukum Chand were named in the First Information Report and also in the statements of the some of the witnesses under Section 161 Criminal Procedure Code but they were not named as accused in charge sheet during the course of trial. The allegations against the respondents No. 2 to 4 Trilok Chand, Sayari and Hukum Chand had been levelled by PW 3 Dinesh. 10. The Hon'ble Apex Court in case of Michael Machando & Anr. v. Central Bureau of Investigation & Anr., Reported in (2000) (3) SCC 262 held that if upon scanning of evidence it is found that ultimate conviction is not possible, then trial Court can refuse, to exercise its discretionary power for adding any accused while rejecting application under Section 319 of the Criminal Procedure Code. 11. The facts of the case cited by the learned counsel for the non-petitioners are different from the fact of the present case because the Hon'ble Apex Court in the judgment cited by the learned counsel for the respondents held that power under Section 319 Criminal Procedure Code is to be invoked, not as matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice but at the same time, it has been held that evidence adduced against such persons musts be substantiated and Order to summon them for trial and in above case there was no direct evidence of complicity of petitioners in the incident but in the instant case from the statements of complainant as well as the other witnesses, it is clear that all the witnesses have categorically named all the three persons respondents No. 2 to 4 Trilok Chand, Sayari and Hukum Chand in the statements before the Court as well as their name was averred even in the First Information Report also. 12. In my opinion, at the time of deciding the application filed under Section 319 Criminal Procedure Code if material evidence is on record for adding the accused then the learned trial Court is required to scan as if it is adjudicating the matter finally. 12. In my opinion, at the time of deciding the application filed under Section 319 Criminal Procedure Code if material evidence is on record for adding the accused then the learned trial Court is required to scan as if it is adjudicating the matter finally. It appears from the impugned Order dated 07.04 2010 that learned trial Court has decided the application under Section 319 Criminal Procedure Code as if the learned trial Court was deciding this case after completion of the trial, therefore, in my view, it is a fit case in which the Order impugned passed by the learned trial Court rejecting the application under Section 319 Criminal Procedure Code deserves to be quashed and set aside and it is desirable upon the evidence on record that cognizance be taken against the three accused persons i.e. respondents No. 2 to 4 Trilok Chand, Sayari and Hukum Chand under the same provisions under which the cognizance against other five persons was taken. There is material on record to add respondents No. 2 to 4 Tirlok Chand, Sayari and Hukum Chand as accused and they are required to be tried along with other co-accused persons who were charge sheeted. 13. Accordingly, the criminal revision is allowed and the impugned Order dated 07.04.2010 is quashed and set aside. The application under Section 319 Criminal Procedure Code filed by the Ganpat Ram is allowed and the trial Court is directed to pass fresh Order for taking cognizance against the respondents No. 2 to 4 Trilok Chand, Sayari and Hukum Chand, in light of the observations made here in above.Revision Petition Allowed. *******