RAHUL CHATURVEDI, J. - (1.) Heard Sri I.K.Chaturvedi, learned counsel for the revisionist, Sri Kamal Krishna, learned Senior Counsel assisted by Sri Uday Shankar Tiwari, learned counsel for the opposite party nos. 2 to 8, learned AGA for the State at length and perused the record. This criminal revision is preferred by Pradeep Kumar Tiwari, complainant/informant of the case, who is aggrieved by the order dated 28.10.2017 by which learned Sessions Judge, Basti while rejecting the application no. 35Kha under Section 319 Cr.P.C. has declined to summon opposite party nos. 2 to 8 in S.T. No. 211 of 2016 (State Vs. Roop Narayan Giri and others) under Section 302 IPC, P.S. Kaptanganj, District Basti. Pleadings between the parties have been exchanged and the matter has been ripe for final argument.
(2.) Submission made by counsel is that the revisionist Pradeep Kumar Tiwari lodged an FIR on 08.07.2016 at 6.30 a.m. for the incident said to have been taken place during 07.07.2016 and 08.07.2016 at unknown time against:- i) Rajendra Prasad Mishra ii) Virendra Kumar Mishra iii) Mahendra Kumar Mishra iv) Surendra Kumar Mishra v) Ankur Mishra vi) Ram Sumer Giri vii) Roop Narayan Giri viii) Manidhar Mishra @ Pinku Mishra.
(3.) The said FIR was registered as case crime no. 568 of 2016, under Sections 147 , 148 , 149 and 302 IPC with the prosecution story that the revisionist/informant is permanent resident of village Dudhaura (Katri), P.S. Kaptanganj, Basti leaving behind his parents and younger son Ashutosh at village. During intervening night of 7/8 July 2016, his father Ram Chandra Tiwari was assaulted by all the named eight accused persons with their respective weapons, namely, knife and sabbal etc., Out of fear the informant's mother and son could not raise any alarm but they have witnessed the incident. After getting the information the applicant reached on the spot and then the dead body of his father was lying outside the house. The FIR further reveals that there was long drawn animosity with regard to some landed property between the son of the deceased and the assailants and this might be a cause of this crime. From the aforesaid text of the FIR the following silent factors have surfaced:- (i) The informant is not an eye witness of the incident. (ii) Except the narration of names of the assailants and casual reference to weapon used, there is no specific role of assault has been attributed with the respective weapon. (iii) The alleged incident was witnessed by informant's son Ashutosh and her mother only. (iv) There was a long drawn animosity with regard to the certain land between the deceased and the assailants and as per version of FIR, this could be the reason behind, for the commission of the present crime. The post mortem report of the deceased shows that the deceased has sustained three injuries over his person:- (a) Lacerated would 4 x 1 x 1.5 cm, 4 cm from root of left ear posterior to heard with sharp margin but heavy sharp object. (b) LW on 5 cm x 0.6 cm x 1 am 9 cm posterior to left ear with underlying bone fracture caused by heavy sharp object. (c) Contusion of left eye. The cause of death as per the opinion of doctor is due to haemorrhage and shock as a result of antemortem head injury. After lodging the FIR the investigation started rolling and eventually the charge sheet was submitted only against Roop Narayan Giri dropping the name of all remaining seven accused persons from the charge sheet. There is nothing on record or in the statements of under Section 161 Cr.P.C. of various witnesses. Thus the police has submitted charge sheet only against Roop Narain Giri. As the offence is triable by learned Sessions Judge, the matter was committed to sessions. Learned trial judge framed charges against sole accused Roop Narain Giri and thereafter testimonry of PW-1 Pradeep Kumar Tiwari and informant and PW-2 Ashutosh who is son of the deceased, were recorded on 03.07.2017 and 12.09.2017 respectively. After taking the respective depositions of prosecution witnesses the prosecution on 03.10.2017 have moved an application under Section 319 Cr.P.C. which is annexed as Annexure-5 to the affidavit accompanying the application. ;