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2011 DIGILAW 99 (RAJ)

Ganpat Ram v. State of Rajasthan

2011-01-13

KAILASH CHANDRA JOSHI

body2011
JUDGMENT 1. - By way of this revision petition petitioner Ganpat Ram, complainant before the trial court has challenged the legality of the order dated 03.12.2008 passed by the learned Addl. District & Sessions Judge, Deedwana by which the learned trial court dismissed the application filed by the petitioner under Section 319 of the Cr.P.C. wherein prayer of petitioner was for taking cognizance against non-petitioners No. 7, 8 and 9, i.e. Nathu Ram, Manju and Smt. Godawari, under Sections 147, 148, 302 r.w. Section 149 IPC. 2. The case of the prosecution is that a First Information Report was lodged by the petitioner Ganpat Ram in the Police Station Ladnu on 09.07.2009 inter alia alleging that on dated 09.07.2009, in the morning at about 7.30 a.m. his father went to field and after a short hot discussion, Jetha Ram S/o Deva Ram, Hemta Ram, Jetha Ram S/o Nathu Ram, Manju, Prabhudi, Godwari and Muunadi attacked on his father. They were armed with lathies and axes and caused various injuries on the body of Suraja Ram and Surja Ram succumbed to the injuries. On the basis of that report, a Criminal Case No.129/2007 was registered at Police Station Ladnu and investigating commenced. After investigation, police filed charge sheet against five accused persons namely Hemta Ram, Jaita Ram S/o Jetha Ram, Prarmudi, Jetha Ram S/o Deva Ram and Munnudi leaving behind three persons namely Nathu Ram, Manju and Godwari whose names were there in the First Information Report. 3. All the five accused persons namely Hemta Ram, Jaita Ram S/o Jetha Ram, Prarmudi, Jetha Ram S/o Deva Ram and Munnudi were tried by the learned trial court and after recording the evidence of 17 witnesses, complainant Ganpat Ram filed an application under Section 319 Cr.P.C. and by way of impugned order dated 03.12.2008, the learned trial court dismissed above application. 4. Aggrieved by the above order, the present petitioner Ganpat Ram filed this revision praying for quashing the order dated 03.12.2008 and ordered to summon three persons namely Nathu Ram, Manju and Godwari in the above trial. 5. 4. Aggrieved by the above order, the present petitioner Ganpat Ram filed this revision praying for quashing the order dated 03.12.2008 and ordered to summon three persons namely Nathu Ram, Manju and Godwari in the above trial. 5. Learned counsel for the petitioner submits that in the First Information Report Ganpat Ram specifically mentioned the names of eight persons Hemta Ram, Jaita Ram S/o Jetha Ram, Prarmudi, Jetha Ram S/o Deva Ram and Munnudi Nathu Ram, Manju and Godwari as assailants who inflicted the injuries as they were armed with lathis and axes and further during the course of investigation and in some of the statements of witnesses name of five persons were disclosed and during the course of trial, all the eye-witnesses who have been examined as PW 1 Sampu, PW 2 Rameshwari, PW 6 Jetha Ram, PW 8 Phusa Ram, PW 14 Chandria, and PW 15 Ganpat Ram had deposed in the Court that all the eight persons were the assailants and all the witnesses stated in their statement that in addition to these five persons against whom the trial is being conducted, three more persons i.e. Nathu Ram, Manju and Godwari were there who inflicted injuries to the deceased and learned trial court rejected the application under Section 319 Cr.P.C. simply on the ground that no specific act has been attributed by the witnesses in their statement in the court to the above three persons. 6. Learned counsel for the respondent contended that in the statement under Section 161 Cr.P.C. the names of five persons namely Hemta Ram, Jaita Ram S/o Jetha Ram, Prarmudi, Jetha Ram S/o Deva Ram and Munnudi have been mentioned as assailants and, therefore, all the eye-witnesses have improved their version in the court and in view of the improvement made in their statements, the evidence of these witnesses cannot be relied upon and further mere mentioning of name in the deposition could not be sufficient itself unless they have been attributed to any injury to the deceased. 7. Learned counsel for the petitioner has relied upon the following judgments in support of his arguments. [1] Mohd. Umar Bhai v. State of Rajasthan, Reported in 2008 WLC 39 ; [2] Samalia & Ors. 7. Learned counsel for the petitioner has relied upon the following judgments in support of his arguments. [1] Mohd. Umar Bhai v. State of Rajasthan, Reported in 2008 WLC 39 ; [2] Samalia & Ors. v. State of Rajasthan, Reported in 2007 WLC 763 ; [3] Bega Ram v. State of Rajasthan & Anr., Reported in 2006 (2) R.Cr.D. 339 (Raj.) ; [4] Govind v. State of Rajasthan & Ors., reported in 2009 (2) Cr.L.R. (Raj.) 1631 ; [5] Bholu Ram v. State of Punjab & Anr., Reported in 2008 (2) WLC 653 ; and [6] Smt. Rukhsana Khatoon v. Sakhawat Hussain & Ors., reported in 2002 AIR SCW 2493 . Learned counsel for the respondent also relied upon the judgment in the matter of Brindaban Das and Ors. v. State of West Bengal, reported in (2009) 2 SCC (Cri.) 79 in support of his arguments. 8. I have given my thoughtful consideration to the submissions advanced by counsel for the parties. In the instant case, nonpetitioners No. 7, 8 and 9 namely Nathu Ram, Manju and Godwari were named in the First Information Report and also in the statements of the some of the witnesses under Section 161 Cr.P.C. but they were not named as accused in charge sheet during the course of trial. The allegations against the non-petitioners No. 7, 8 and 9 Nathu Ram, Manju and Godwari had been made by PW1 PW. 2 Rameshwari, PW 6 Jetha Ram, PW 8, PW 14, & PW 15.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 Cr.P.C. 9. 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 Cr.P.C. 9. 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 non-petitioners held that power under Section 319 Cr.P.C. 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 eye-witnesses, it is clear that all the witnesses have categorically named all the three persons i.e. non- petitioners No. 7, 8 and 9 alongwith co-accused persons in the statements before the court as well as their name was averred even in the First Information Report also. 10. In my opinion, at the time of deciding the application filed under Section 319 Cr.P.C. 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 03.12.2008 that learned trial court has decided the application under Section 319 Cr.P.C. 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 Cr.P.C. 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 namely, Nathu Ram, Manju and Godawari under the same provisions under which the cognizance against other five persons was taken. There is material on record to add non-petitioners No. 7 to 9 namely as accused and they are required to be tried alongwith other co-accused persons who were charge sheeted. 11. Accordingly, the criminal revision is allowed and the impugned order dated 03.12.2008 is quashed and set aside. The application under Section 319 Cr.P.C. filed by the Ganpat Ram is allowed and the trial court is directed to pass fresh order for taking cognizance against the non-petitioners No. 7 to 9 namely, Nathu Ram, Manju and Godawari, in light of the observations made hereinabove.Revision petition allowed. *******