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2017 DIGILAW 2443 (RAJ)

Vijay Prakash @ Jagdish v. State of Rajasthan

2017-11-07

SANDEEP MEHTA

body2017
JUDGMENT : Sandeep Mehta, J. 1. Heard learned counsel for the petitioner, learned Public Prosecutor and learned counsel representing the respondent complainant. Perused the impugned order. 2. These two revisions are directed against an order dated 12.1.2016 passed by the learned Sessions Judge, Pali in Sessions Case No. 7/2016 whereby, the application submitted by the respondent complainant under Section 193 Cr.P.C. 1973 was accepted and the petitioners and Vijay Prakash @ Jagdish and Mukeen Khan @ Mukesh alongwith Razak @ Raju and Abdul were directed to be summoned as additional accused to face trial with the charge sheeted accused Mahesh and Kanhaiya Lal. 3. Sarva Shri Suresh Kumbhat, Sheetal Kumbhat and Vishal Saraswat, learned counsel representing the petitioners vehemently urge that the independent witnesses Mithudas and Rakesh, the injured witnesses Ravi and Maina, the sister of the deceased Mahendra, who was the first person to reach the place of the occurrence, did not name the petitioners as the assailants. The Investigating Officer assigned detailed and justified reasons for leaving out the names of the petitioners from the array of the accused. As per the admitted case set out in the statement of eyewitness Maina and the injured witness Ravi, only the two charge sheeted accused Karan and Mahesh assaulted the deceased by sharp weapons. Even in the exaggerated statements of the witnesses Bhundi Devi and the witness Prem, it is an admitted position that the other accused were not armed with any weapon whatsoever. They further urge that as per the post mortem report of the deceased Mahendra, he was having sharp weapon injuries on his person all of which are assigned to the charge-sheeted co-accused and as such, apparently, the petitioners have been falsely implicated in this case. They further urge that after submission of the charge-sheet, the complainant moved an application before the trial court under Section 190 Cr.P.C. 1973 with the very same prayer. The Magistrate rejected the said application by order dated 16.10.2015 which was not challenged any further and hence, has become final. They thus crave acceptance of the revisions and implored the Court to set aside the impugned order. 4. Per contra, learned Public Prosecutor and Shri Devesh Bohra learned counsel representing the respondent complainant vehemently opposed the submissions advanced by the petitioners' counsel. They thus crave acceptance of the revisions and implored the Court to set aside the impugned order. 4. Per contra, learned Public Prosecutor and Shri Devesh Bohra learned counsel representing the respondent complainant vehemently opposed the submissions advanced by the petitioners' counsel. They contend that the petitioners were named in the F.I.R. as well as in the statements of view of the eye-witnesses as the members of the unlawful assembly which indiscriminately assaulted and murdered Mahendra. They thus contend that the trial court was perfectly justified in accepting the application filed by the prosecution under Section 193 Cr.P.C. 1973 and summoning the petitioners to face trial with the charge-sheeted accused. 5. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have gone through the impugned order as well as the record. 6. Suffice is to say that the first person to reach at the place of the occurrence as per the admitted prosecution case was Maina the sister of the deceased. In her statement, she categorically alleged that the deceased was assaulted by Karan Meghwal and Mahesh Harijan both of whom were having sharp weapons in their hands. The other assailants were unarmed and inflicted kick blows on the deceased. However, this witness did not name either of the petitioners as an assailant. Rakesh is an injured eye-witness. In the statement recorded under Section 161 Cr.P.C. 1973 Rakesh clearly alleged that only two persons viz. Mahesh and Karan were assaulting the deceased. When the witness tried to intervene, he too was inflicted sharp weapon injuries. The independent witness Mithudas has also alleged that only two persons having sharp weapons were trying to force their way into the house of the complainant. So far as the participation of the petitioners is concerned, the prosecution has not given any such evidence which can convince the Court to record a satisfaction of existence of prima-facie material so as to summon the petitioners for trial as co-accused alongwith the charge-sheeted accused persons. As discussed above, the evidence available on the record falls miserably short of this yardstick so as to justify the direction given by the learned trial court to summon the petitioners and the accused Abdul and Razak @ Raju as additional accused while exercising powers under Section 193 Cr.P.C. 1973. 7. Resultantly, the revisions deserve to be and are hereby allowed. 7. Resultantly, the revisions deserve to be and are hereby allowed. The impugned order dated 12.1.2016 passed by the learned Sessions Judge, Pali in Sessions Case No. 7/2016 whereby the petitioners and the other two left out accused Abdul and Razak @ Raju were summoned to face trial with the charge-sheeted accused Mahesh and Kanhaiya Lal is quashed and set aside. The trial of the charge-sheeted accused shall continue as per law. 8. A copy of this order be placed in both the files.