Mohd Zaheer S/o Mohammed Sharif v. State of Rajasthan
2025-05-14
ASHOK KUMAR JAIN
body2025
DigiLaw.ai
ORDER : 1. Instant revision petition is preferred by petitioner-accused Mohd. Zaheer aggrieved from order dated 21.11.2023 in Sessions Case No.58/2018 in a matter arising out of FIR No.97/2018 P.S. Purani Tonk, Tonk passed by learned Sessions Judge, Tonk, whereby on an application of respondent No.2 complainant cognizance under Section 319 Cr.P.C. was taken against the petitioner-accused. 2. Learned counsel for petitioner while relying upon grounds of revision petition submits that after registration of FIR by complainant, police has investigated the matter and after investigation, the role and involvement of Shamsher and Jahangir were found and police has filed charge-sheet against them. He further submits that due to animosity the complainant has named several persons, but without any overt act of any of them. The police has not only investigated the matter in details, but also recorded the statement of independent witnesses and with a cogent reason has not filed charge-sheet against present petitioner or any other person. He also submitted that after framing the charge, the prosecution has examined 6 witnesses and out of these 6 witnesses, injured Jabbaar was examined as PW-1 and he turned hostile and not supported the case of prosecution. He further submitted that another injured Sajid Ali was examined as PW-4 and he has not corroborated the evidence of PW-2 and denied involvement of present petitioner. He specifically referred the statement of PW-4 and submitted that he denied even the presence of present petitioner, who went to offer Namaz (prayer). He also submitted that the Trial Court only on basis of statement of PW-2 Ibrahim has taken cognizance against the present petitioner-accused, and has not even ensured any verification from any independent source. He further submitted that when two out of three injured have not supported the case of prosecution then an order of cognizance cannot be passed under Section 319 of Cr.P.C. At last, he submitted that the Trial Court has committed serious error while allowing the application under Section 319 of Cr.P.C. 3. Aforesaid contentions were opposed by learned Public Prosecutor. 4. None present on behalf of respondent-complainant despite service of notice. 5. Heard learned counsel for petitioner and learned Public Prosecutor. Perused the record. 6.
Aforesaid contentions were opposed by learned Public Prosecutor. 4. None present on behalf of respondent-complainant despite service of notice. 5. Heard learned counsel for petitioner and learned Public Prosecutor. Perused the record. 6. On basis of report lodged by respondent No.2 Sardar Ahmed about incident of assault FIR No.97/2018 under Sections 147, 341 and 323 IPC was registered and after investigation, the police has filed a charge-sheet against Shamsher and Jahangir under Sections 341, 323, 34, 324, 326, 307 IPC and Section 4/25 of Arms Act. After framing the charge, the prosecution has examined 6 witnesses including complainant PW-3, injured Ibrahim PW-2, Sajid Ali PW-4 and Jabbaar PW-1. The Trial Court has allowed an application under Section 319 Cr.P.C. and taken cognizance against the present petitioner-accused under Sections 341, 323, 324, 326, 307 read with Section 34 IPC. 7. In his report lodged on 15.07.2018, the complainant has named 9 persons including present petitioner. In this report, it was specifically alleged that the petitioner-accused Zahir has assaulted Sajid Ali with Sword (sharp edged weapon). After investigation, police has not found involvement of present petitioner and did not recommended to face the trial. PW-1 Jabbaar has turned hostile and not supported the case of prosecution though he was one of the injured. PW-4 Sajid Ali has specifically denied involvement of petitioner-accused Zahir. PW-2 Ibrahim has alleged that at the instigation of Zahir, he was assaulted by Jahangir and Shamsher with sword. We have considered the cross-examination of this PW- 2. A previous animosity was admitted by PW-3 complainant Sardar Ahmed. The prosecution has examined PW-5 Basri B, as an eye- witness. The Investigating Officer Jitendra Singh PW-6 has also supported the investigation. 8. Herein this case, the role and involvement with overt act of this petitioner-accused was mentioned in FIR, but after investigation, this accused was not forwarded to face trial. Injured PW-2 Ibrahim has supported the story of prosecution though this petitioner is not charged to assault PW-2 Ibrahim but he not only named him but deposed about his active role. The purpose of cognizance is not to ensure conviction rather to ensure that if there is any material to face trial then the person should be brought to face the trial. 9.
The purpose of cognizance is not to ensure conviction rather to ensure that if there is any material to face trial then the person should be brought to face the trial. 9. Section 319 of Cr.P.C. authorizes the Court that if during trial, it appears that a person not already an accused has committed an offence for which he should be tried then the Court may proceed against him as if he was an accused. The Court is required to see a prima facie evidence available to call someone to face trial. 10. Herein this case, the material on record is sufficient and the Trial Court with a reasoned order, has taken cognizance under Section 319 Cr.P.C. therefore, there is no perversity or illegality in the order passed by the Trial Court. 11. Hence, the revision petition is sans merits and liable to be dismissed. 12. In view of discussion made herein above, the revision petition is hereby dismissed and order dated 21.11.2023 is affirmed. 13. Misc. application, if any, stands disposed of.