Sinha, J. - - (1.) LEAVE granted.
(2.) ON the basis of a fardbeyan of one Bihari Singh, a first information report was registered against seven persons for commission of offences under Sections 147, 148, 149, 307 and 302 of the Penal Code, 1860 and Section 27 of the Arms Act as well as under Sections 3/4 of the Explosive Substance Act, inter alia, alleging that on 24.10.2000 at around 4 p.m. when he along with one Ajay Singh was sitting in his shop near bus-stand, Nagendra Choubey, Mukesh Choubey, Pradeep Vishwakarma, Sharvan Vishwakarma, Suraj Singh, B. N. Singh and Arbind Singh came in two vehicles and started firing. Appellant 1 was specifically named therein. In the said incident, the complainant and Ajay Singh suffered firearm injuries. When the people started assembling there, accused persons fled away. The motive for commission of the offence was said to be the murder of one Jagdev wherein the complainant and the said Ajay Singh were accused. The first informant was taken to the hospital and died on 25.10.2000. He gave a dying declaration which was treated to be the first information report. Indisputably, no charge-sheet was filed against the appellants. No cognizance, therefore, was taken against them. Upon commitment of the case to the Court of learned Sessions Judge, the prosecution examined eleven witnesses. The learned Sessions Judge relied upon the evidence of PWs 6 and 7 to allow an application for summoning the appellants in exercise of his power under Section 319 of the Code of Criminal Procedure (for short "the Code"), holding : "There cannot be any two opinions that suspicion however strong it may be cannot take shape of evidence and it cannot be a ground for conviction but so far as issuance of process is concerned strong suspicion can be a ground to proceed against any person in a criminal case. In the facts of the present case when the statement of the injured formed basis of fardbeyan, who died subsequently then value of the first statement will also be a point for consideration. The statement of PW 7 is also said to be statement of dead person, then that statement of PW 7 will also be under the scrutiny on the touchstone of evidence. The name of above referred two persons Suraj Singh and Arbind Singh is stated by the informant. Thus in consideration of the entire material on record I am of the view that the materials on record is sufficient to proceed against abovenamed Suraj Singh and Arbind Singh. Thus in view of the above observation it will be proper that summons against Suraj Singh son of Madhu Singh and Arbind Singh son of late Amarnath Singh, both resident of Village Bandubar, PS Panki, District Palamau be issued and are arrayed as accused in GR No. 1256 of 2000 corresponding to Sadar PS Case No. 381 of 2000 to face trial. The office is directed to open a separate record for those two persons bearing No. 209-B of 2004 and is further directed to issue summons against the abovenamed two accused persons for their trial."
(3.) THE appellants filed criminal revision application thereagaihst before the High Court. By reason of the impugned judgment, the same was dismissed. Mr. P.S. Narasimha, learned Counsel appearing on behalf of the appellants, has taken us through the evidences of PWs 6 and 7 and submitted that both the learned Sessions Judge as also the High Court committed a serious error insofar as they failed to take into consideration the legal principles required to be applied while summoning an accused in exercise of the Court's power under Section 319 of the Co'de.;