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3. On the other hand, from the side of revisionists it was argued before the court below that they had no role in the occurrence. The said application had been moved with a view to destroying their life. The presence of the complainant, Nirmala was doubtful on the spot. She had lodged an F.I.R. after consultation. The statement of P.W.2, Amit Rai was not believable at all. In support of their contention, a large number of citations were relied upon.

4. The learned court below, after having gone through the respective versions of the parties and perusing the evidence on record, has recorded in the impugned order that P.W.1, complainant Nirmala Rai had lodged an F.I.R. (Ex. Ka-1) at the police station with allegation that both the revisionists threatened to break her hands and legs if she did not restrain from giving statement before court. Giving effect to this threat, on 25.08.2008 at about 7:00 p.m., when her husband was sitting in his 'Dera', Dinanath Rai, Shiv Bachan Rai, Shesh Nath Rai, Rananjay Rai (revisionist) & Yogesh Rai having 'farsa' in their hands, Dhananjay Rai & Sumit Rai carrying spear in their hands and Praveen Kumar Rai, Brijesh Rai, Punendra Rai and Pankaj Rai weilding 'lathis' in their hands, converged on the 'dera' of her husband, started abusing him and caused injuries to him with the weapons they were carrying, with an intention to kill. After having received injuries, her husband fell down and thereafter with an intention to kill him, Praveen Rai caused him injury by spear. Thereafter her husband became unconscious. These accused were also accompanied by Sumit Rai who was also carrying spear with which he assaulted her husband, which penetrated in his stomach. Dhananjay Rai also assaulted her husband with spear in his chest. A large number of injuries were caused to her husband of 'farsa', spear and 'lathi'. This occurrence was witnessed by Jai Narayan Rai and Amit Rai. Further, it is recorded in the said order that P.W. 1, Nirmala has stated in her examination-in-chief that Dina Nath Rai, Shesh Nath Rai, Rananjay Rai (Revisionist) wielding 'farsa' in their hands and Sumit Rai and Dhananjay Rai wielding spear in their hands and Praveen, Pankaj (Revisionist) & Sunendra wielding 'lathies' in their hand gheraoed her husband and started abusing her and her daughter. When her husband tried to run away across the road to save his life, all these accused started causing him injuries with the above-mentioned weapons. Sumit Rai, who was having spear, hit her husband which caused injury in his stomach. Her husband fell down after having received these injuries and thereafter Dhananjay Rai caused injury with spear which hit his chest. Her husband had received various injuries. It is further recorded that the defence side had made extensive cross-examination of the said witnesses and it was stated in the cross examination that there were in all 15 persons on the spot, out of which there were 10 accused and 5 persons belonged to the complainant side. This witness has also deposed that Rananjay Rai had also caused injury of 'farsa' to the deceased. Similarly, P.W. 2 Amit Rai who was also an eye-witness of the occurrence has stated that when he reached the spot he saw that Dinanath Rai, Shesh Nath Rai, Yogesh Rai & Rananjay Rai (Revisionist) armed with 'farsa', Dhananjay and Sumit armed with spear and Praveen @ Pinto, Brijesh Rai, Sunendra @ Sonu and Pankaj Rai armed with 'lathi' all had 'gheraoed' Shri Alakh Dev Rai on the northern patti of the road and started abusing him badly and with an intention to kill, all of them started beating him with the said weapons in their hands. This witness in cross-examination stated that Rananjay Rai (revisionist) and Dhananjay Rai were present on the spot. He had seen Rananjay Rai at the place of occurrence with Pankaj Rai (Revisionist). Having quoted the said statements, the learned court below has recorded the finding that P.W. 2 was wholly corroborating the statement of P.W.1 regarding this occurrence. Both of them were eye witnesses and were exposed to thorough cross-examination. Both the witnesses have supported the statement of each other on all points of fact. P.W.1 besides being an eye-witness is also the first informant of this case who has supported the said version in her statement by mentioning that both revisionists were involved in giving effect to the occurrence besides other accused persons and their names were also mentioned in the F.I.R. Thus, it was held that there was sufficient evidence against the revisionists, which if left unrebutted, would result in their conviction, hence they were summoned by impugned order.

8. Thirdly, he has contended that there were 10 accused whose names were mentioned at page 24 of the paper book, out of whom persons at Srl. Nos. 1 to 4 were armed with 'farsa', persons at serial Nos. 5 and 6 were armed with spear 'bhala' and persons at serial Nos. 7 to 10 were armed with 'lathis', but the statement of Nirmala at page 40 of the paper book clearly states that there was no injury caused to the deceased by 'lathi' and spear rather he had injuries only of 'farsa'. It is also argued that the injuries recorded in the post-mortem report at page 33 of the paper book were found to have been caused by 'farsa' and not by 'lathis' and spear.

21. Further, in paragraph 13 of this case, following paragraph has also been quoted:-

"13. It is the duty of the Court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 Cr.P.C.?"

22. It is absolutely clear from the above position of law as to when an order of summoning accused u/s 319 Cr.P.C. may be passed. The Court has ample power under the said section to summon the accused whose name is mentioned in F.I.R. but in charge-sheet it has been expunged by the police after investigation. But if after framing of charge, the trial starts and the evidence is recorded and if any incriminating evidence is found to have come on record against any person which is strong enough to make out a prima facie case against him, of his having committed an offence, which if left uncontroverted, could result in conviction of such a person/accused, the court is considered well within its power to summon such a person as accused in the said trial to face trial with other co-accused persons. The question which has been considered by the Supreme Court in the above case, was the same which involved appreciation of evidence and its gravity. The Apex Court found that despite there being large number of evidence having been gathered by Investigating Officer proving the alibi of the accused-appellants, the court below, as well as the High Court, did not pay attention to the said evidence and passed the summoning order. In the case at hand such is not the matter because from perusal of evidence on record, which has already been cited by the court below in the impugned order, name of both the revisionists namely Pankaj Rai and Rananjay Rai were mentioned in the F.I.R. and in the statement of PW-1 Nirmla Rai (also first informant), she has clearly stated that Rananjay Rai having 'Farsa' in his hand and Pankaj Rai having 'Lathi' in his hand came with an intention to kill her husband on his 'dera', started abusing and along with other accused they also caused injuries to the deceased by the aforesaid weapons. Besides this, the other eye witness (PW-2), whose statement is also quoted in the impugned order, has fully supported the version of the FIR that both these accused had participated in causing injuries to the deceased. It was argued by the learned counsel for the revisionist that in post-mortem report, there were only four injuries found which appeared to have been caused by 'Farsa' and no injury was found on the person of the deceased of 'Lathi' or spear. It may be pointed out in this regard that this is elementary stage of summoning the accused where medical evidence may not be looked into in detail/in depth as the trial is yet to take place of these accused persons/revisionists. These arguments may be taken care of at the stage of final disposal of the case, when the cross-examination of the doctor, who conducted the post-mortem or conducted the medical examination of the deceased, would be recorded in the court below. It would be pertinent to mention here that the benefit of the above citation would not go to the accused-revisionist in this case because in that case strong pieces of evidence of alibi were presented which were relied upon by the police and final report was submitted and yet the court below and High Court had not taken notice of such strong pieces of evidene and went on to summon the accused persons (appellants in that case). Such is not a situation in the case at hand, as, no such evidence has been cited from the side of the accused/revisionists of alibi. There is no other piece of evidence found on record which may lead this Court to believe that these revisionists were not involved in causing the said occurrence. The learned court below has not only recorded its prima facie satisfaction of finding these revisionists involved in causing occurrence, rather, has also expressed opinion that there was full likelihood of these revisionists being convicted, if the evidence which has come on record, remains un-controverted/un-rebutted. Hence, no infirmity is found in the order.