Gokul Ram vs State & Ors on 24 February, 2011

[Cites 14, Cited by 1]

Rajasthan High Court - Jodhpur

Gokul Ram vs State & Ors on 24 February, 2011

2. This revision petition is filed by the complainant Gokul Ram against the order dated 16/2/2010 passed by the learned trial court of Addl. Sessions Judge (Fast Track) No.2, Bikaner rejecting the application under Section 319 Cr.P.C. of complainant.

S.B.CRIMINAL REVISION PETITION NO. 173/2010 Gokul Ram vs. State & Ors.

Order dt: 24/2/2011 2/10

3. Learned counsel for the petitioner, Mr.M.K.Garg urged that all the three witnesses P.W.3 - Gokul Ram - complainant, P.W.5 - Ram Lal and P.W.6 - Sunder Lal had named six accused persons Dhuda Ram, Prema Ram, Poonma Ram, Shiv Ratan, Ramswaroop and Birbal, who armed with weapons surrounded the deceased Chandu Ram on the date of incident 6/9/2006 and on account of gun shot injury caused by Dhuda Ram, Prema Ram, the said Chandu Ram died on his way to hospital. The investigation was made by the police but the charge sheet was filed only against three accused persons namely; Dhuda Ram, Shiv Ratan and Prema Ram and the remaining three persons Ram Swaroop s/o Shiv Ratan, Birbal s/o Shiv Ratan and Poonma Ram s/o Dhuda Ram were left out.

4. Learned counsel for the petitioner complainant also urged that earlier also the complainant approached this Court by way of criminal revision petition no. 952/2008 against the dismissal of his application under Section 319 Cr.P.C. by the learned trial court on 4/8/2008, wherein, this Court while allowing the revision petition on 30/3/2009 remanded the case back to the learned trial court for reconsidering the application under Section 319 C.P.C. Consequent to such remand, the S.B.CRIMINAL REVISION PETITION NO. 173/2010 Gokul Ram vs. State & Ors.

Order dt: 24/2/2011 3/10 learned trial court after recording the evidence of other prosecution witnesses also again considered the said application under Section 319 Cr.P.C. and rejected the same vide impugned order dated 16/2/2010. The evidence which has been considered by the learned trial court now in the impugned order dated 16/2/2010 namely; statement of P.W. 3 - Gokul Ram - complainant, P.W.5 - Ram Lal and P.W.6 - Sunder Lal were already recorded & considered by the learned trial court while earlier rejecting the application, which was subject matter of earlier revision petition. He also submits that the learned trial court has erred in again rejecting the said application under Section 319 Cr.P.C. on the ground that under the said provision, it did not appear to be an "extra ordinary case" (अस ध रण पकरण). However, learned counsel for the petitioner urged that at the stage of Section 319 Cr.P.C. the evidence to be considered by the learned trial court should not be in the same spirit in which the evidence is considered at the stage of final judgment when the trial is concluded, but under Section 319 Cr.P.C. the purpose is only to see that on the basis of evidence whether the court is satisfied that other named accused persons are also required to be tried or not in the said offence. He urged that three of the eye witnesses have named these S.B.CRIMINAL REVISION PETITION NO. 173/2010 Gokul Ram vs. State & Ors.

Order dt: 24/2/2011 4/10 three respondents, who came with other accused persons armed with deadly weapons and killed Chandu Ram, therefore, under Section 302/149 IPC the present respondents were also required to be tried and, therefore, learned trial court erred in rejecting the said application under Section 319 Cr.P.C.. He relied upon the decision of Hon'ble Supreme Court in the case of Lok Ram vs. Nihal singh & Anr. - (2006) 3 SCC (Cri.)532 & decision of coordinate bench of this court in the case of Har Lal vs. State of Raj. & ors. - S.B.Cri.Revision Petition No.349/2010 decided on 14/1/2011.

5. On the other hand, learned counsel Mr. D.K.Godara appearing for the private respondents vehemently urged that there was no fresh material or evidence which came before the learned trial court after earlier remand by this Court vide judgment dated 30/3/2009 and, therefore, on the basis of same material, learned trial court was justified in rejecting the application under Section 319 Cr.P.C. Learned counsel Mr. Godara also pointed that one of the respondents Poonma Ram s/o Dhuda Ram was a minor person of 14 years looking to his date of birth 20/8/1992 and the date of incident being 6/9/2006, therefore, he cannot be said to have any common intention of S.B.CRIMINAL REVISION PETITION NO. 173/2010 Gokul Ram vs. State & Ors.

Order dt: 24/2/2011 5/10 committing said offence of murder.

6. Learned Public Prosecutor Mr. K.K.Rawal submitted that looking to the material available on record and the statements of P.W.3, P.W.5 and P.W.6, the present private respondents also deserve to be tried for the offence in question.

7. Having considered the rival submissions made at the bar and in view of the judgments cited at the bar and the evidence, which was considered by the learned trial court namely; statements of P.W. 3 - Gokul Ram, P.W.5 - Ram Lal and P.W.6 - Sunder Lal, this Court is of the opinion that learned trial court has erred in rejecting the application of the present petitioner-complainant under Section 319 Cr.P.C. as far as case of respondents no.2 Ram Swaroop son of Shiv Ratan & respondent no.3 Birbal son of Shiv Ratan are concerned. It is true that at the stage of deciding the application under Section 319 Cr.P.C. the learned trial court cannot weigh pros & cons of evidence in the same manner in which it is done after the conclusion of trial but at the same time learned trial court could not remain oblivious to the details of evidence considered by it in view of categorical statements S.B.CRIMINAL REVISION PETITION NO. 173/2010 Gokul Ram vs. State & Ors.

Order dt: 24/2/2011 6/10 of P.W. 3 - Gokul Ram - complainant, P.W.5 - Ram Lal and P.W.6 - Sunder Lal that they saw these six persons armed with weapons on the spot with the common intention and object of committing the said crime. The learned trial court could not refuse to try these persons, who were not arrayed as accused by the Investigating Officer in the charge sheet filed in the court.

8. This Court in Har Lal vs. State of Raj. & ors.(supra) relying upon the Supreme Court decision in the case of Lok Ram vs. Nihal Singh (supra) held as under:-

"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 same 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 respondents No.2 to 4 Trilok Chand, Sayari and Hukum Chand has been levelled by PW 3 Dinesh.

The Hon'ble Apex Court in case of Michael Machando & Anr. vs. 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 S.B.CRIMINAL REVISION PETITION NO. 173/2010 Gokul Ram vs. State & Ors.

Order dt: 24/2/2011 7/10 discretionary power for adding any accused while rejecting application under Section 319 of the Cr.P.C.

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 Cr.P.C. is to be invoked, not as a 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 must 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.

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 not required to scan as if it is adjudicating the matter finally. It appears from the S.B.CRIMINAL REVISION PETITION NO. 173/2010 Gokul Ram vs. State & Ors.

Order dt: 24/2/2011 8/10 impugned order dated 07.04.2010 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 i.e. Respondents No.2 to 4 Trilok Chand, Sayari and Hukum Chand under the same provsions under which the cognizance against other five persons was taken. There is material on record to add respondents No.2 to 4 Trilok Chand, Sayari and Hukum Chand as accused and they are required to be tried along with other co-accused persons who were charge sheeted.

Accordingly, the criminal revision is allowed and the impugned order dated 07.04.2010 is quashed and set aside. The application under Section 319 Cr.P.C. filed by 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 hereinabove.

(KAILASH CHANDRA JOSHI), J."

S.B.CRIMINAL REVISION PETITION NO. 173/2010 Gokul Ram vs. State & Ors.

Order dt: 24/2/2011 9/10

9. The Hon'ble Supreme Court in the case of Lok Ram vs. Nihal Singh (supra) also 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. Such material contained in the charge sheet or the case diary do not constitute evidence. Of course, an accused who has been discharged stands on a different footing. Such power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Indisputably, it is an extra ordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier.

10. In view of the aforesaid judgments and legal position and evidence available on record, this Court is of the opinion that as far as respondent nos. 2 and 3 - Ram Swaroop s/o Shiv Ratan & Birbal s/o Shiv Ratan are concerned, they deserved to be tried for the said offence under Section 302 read with 34 & 149 IPC & Section 3/25 & 27 of Arms Act, as other accused persons are being tried and, S.B.CRIMINAL REVISION PETITION NO. 173/2010 Gokul Ram vs. State & Ors.

Order dt: 24/2/2011 10/10 therefore, rejection of application under Section 319 Cr.P.C. by the learned trial court to this extent deserves to be set aside. However, so far as respondent no.4 - Poonma Ram s/o Dhuda Ram is concerned, a minor child of 14 years at the time of incident, cannot be attributed with the common intention of committing crime of murder even though he was found available on the spot by the eye witnesses, therefore, his non-implication by the learned trial court in an application under Section 319 Cr.P.C. is found to be justified.

11. Consequently, the present revision petition is partly allowed. The application of the present complainant Gokul Ram is allowed to the extent of respondent nos. 2 and 3 - Ram Swaroop s/o Shiv Ratan and Birbal s/o Shiv Ratan but the same stands rejected qua respondent no. 4 Pooma Ram s/o Dhuda Ram. The learned trial court shall proceed to summon the respondent nos. 2 and 3 by bailable warrants & proceed with the trial of the case in accordance with law.

(DR.VINEET KOTHARI), J.

item no. 4 baweja/-

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Rajasthan High Court - Jodhpur