- (1.) M. C. Jain, J. Heard learned Counsel for the revisionists, learned A. G. A. for O. P. No. 1 and Sri Amar Saran, learned Counsel for the opposite party No. 2-complaint.
(2.) THROUGH this revision the revisionist seek to challenge the order dated 27-6-2001 passed by the Sessions Judge, Jhansi under Section 319 Cr. P. C. summoning them as accused in S. T. No. 112 of 2000. Noticed had been issued to the complainant-opposite party No. 2 also as per the order dated 11-7-2001 and he put in appearance through his Counsel to oppose the revision, which is opposed by learned A. G. A. also on behalf of the State-opposite party No. 1. The brief resume of facts is necessary for understanding the controversy properly. One Pramod Kumar was murdered in this incident and his brother Santosh Kumar sustained injuries. Both of them sustained injuries of fire-arm. Incident took place on 18-4-1999 at 11. 30 a. m. and report was lodged 45 minutes later by an eye-witness Suresh Kumar (brother of the deceased and injured ). 10 persons including the present 9 revisionists had been named as accused in the F. I. R. with the allegation that all of them had appeared at the spot armed with fire-arms when his brother, Pramod Kumar was sitting on a chair on the Chabutara under the Banyan tree in front of his house near pond. The weapons of all of them were described in the F. I. R. All of them had allegedly opened fire, killing Pramod Kumar and injuring Santosh Kumar. However, after investigation the police submitted charge-sheet only against one person, Guddu who is facing trial in the said case. The Doctor who conducted the autopsy on the dead body of the deceased and prepared medical examination report of the injured Santosh Kumar, had been examined as P. W. 1. It followed from his testimony that both victims sustained fire-arm injuries. Thereafter, the informant Suresh Kumar, P. W. 2 was examined, who gave evidence against present 9 revisionists also besides Guddu (facing trial) that all of them had participated in this crime and had opened fire. Thus, evidence came to be there before the Court against present 9 revisionists as participants of this crime whereafter an application was made for summoning the present revisionists as per provisions of Section 319 of Cr. P. C. As learned Sessions Judge allowed the said prayer, the revisionists have felt aggrieved and have come up with this revision before this Court. It has been argued by the learned Counsel for the revisionists that the deceased Pramod Kumar was himself a hardened criminal and even P. W. 2, Suresh Kumar and Santosh Kumar injured are also of same hue and colour. Reference has been made to the copy of the judgment in S. T. No. 124 of 1981 passed by IVth Additional Sessions Judge, Jhansi on 25-7-1984 whereby the deceased. Pramod Kumar and his father were sentenced to life imprisonment. This argument is wholly irrelevant. Even if it is taken for the sake of the argument that the deceased Pramod Kumar had criminal antecedents that did not mean that anybody could take away his life. He continued to be the citizen of the country and human being and was entitled to the right of life. The crucial question is as to who were the murderers.
(3.) ANOTHER argument of the learned Counsel for the revisionists is that as per the testimony of Doctor examined as P. W. 1, the deceased had received a single gun shot wound of entry and similarly injured, Santosh Kumar also received single injury of fire-arm. As per Section 149 of I. P. C. , every member of unlawful assembly is guilty of the offence committed in prosecution of common object. As per the F. I. R. and according to the evidence of eye-witness, Suresh Kumar, P. W. 2 (who also happens to be informant), all the 10 accused persons came to the spot and had opened fire. If it were so, they were members of unlawful assembly with common object of killing, Pramod Kumar and injuring others. As mentioned above, as per Section 149 of I. P. C. , every member of an unlawful assembly is guilty of the offence committed in prosecution of common object. Evidence having come against 9 revisionists before the Court as per the testimony of Suresh Kumar, the Court was justified to summon them under Section 319 of Cr. P. C. It is not the stage of critically analysing the ultimate result of the entire testimony which has to be done at the time of decision of the case. Therefore, this submission also of learned Counsel for the revisionists does not carry conviction. Yet another argument advanced by the learned Counsel for the revisionists is that while passing the impugned order, the trial Court has also made reference to the statement of Santosh Kumar injured made by him under Section 161 Cr. P. C. , though he has not yet been examined at the trial as a witness. I do not think that it makes any difference for the benefit of the revisionists if the trial Court has made a reference to such statement of Santosh Kumar recorded under Section 161 Cr. P. C. Truth of the matter is that the evidence has come before the Court through the testimony of eye-witness, Suresh Kumar, P. W. 2 that the revisionists were also the participants of the crime, who appeared there with fire-arms and opened fire. The same found corroboration from the medical evidence as per testimony of the doctor examined as P. W. 1. It is also significant to point out that F. I. R. had been lodged without any loss of time within 45 minutes of the occurrence by an eye-witness and therein also all the revisionists were named as culprits with their weapons.;