- (1.) The present petition lays challenge to order dated 13.8.2012 passed by the Additional Sessions Judge, Bhiwani whereby the application filed by the complainant under Section 319 of the Code of Criminal Procedure (in short "Cr.P.C.") for summoning Umed Singh son of Lakhi Ram as additional accused, has been dismissed.
(2.) The brief backdrop of this case is that Kamal Singh (petitioner) lodged FIR No. 466 dated 21.8.2011 in Police Station, City Bhiwani for offence punishable under Sections 307, 323, 324, 326, 341, 506, 148, 149 of the Indian Penal Code (in short "IPC") against Umed Singh and others. The allegations are that on 20.8.2011 at about 6.00 p.m. complainant was sitting outside his shop and his brother Prahlad was coming towards the shop on motor cycle. When his brother reached near the shop, master Umed Singh who had a lathi in his hand tried to stop motor cycle of his brother and he fell down alongwith motor cycle. Master Umed Singh exhorted other accused upon which Pehlad, Hoshiyar Singh, Monu, Mahabir, Ranjit, Naresh, Kala and Satbir armed with weapons like axes, gandasis, swords, lathis etc. came and inflicted injuries to his brother. When the complainant tried to rescue his brother, the accused inflicted injuries to him also. On raising alarm, Gauri Shankar rescued them from clutches of the accused. Counsel for the petitioner contends that in the first information report as well as statements of the complainant and his brother, a specific role has been attributed to accused Umed Singh for stopping motor cycle of his brother and exhorting his co-accused, therefore, Umed Singh is liable to be summoned to face trial along with his co-accused namely Hoshiyar Singh, Rajesh, Parveen, Mahabir, Naresh and Satbir. It is further submitted that the learned trial court has committed serious error in relying upon statement of investigating officer wherein he deposed that he went to the spot and 20 persons came there out of which some gave affidavits and others told him verbally that Umed Singh was not present at the spot. Counsel for the State has submitted that the prosecution has already concluded its evidence and all the witnesses cited by the prosecution have been examined.
(3.) Counsel for respondent No. 8 would submit that there is no fresh material brought on record and statements of complainant and his brother are mere reiteration of what has been stated in the FIR. It is further submitted that investigating officer, on the basis of fair investigation conducted in the matter came to conclude that Umed Singh was not present at the spot and, therefore, he is not liable to be charge sheeted. It is further argued that the learned trial court has rightly taken note of the fact that if Umed Singh was present at the spot, actually stopped motor cycle of brother of the complainant with a lathi, there was no reason for him not to wield the said weapon and cause injuries to the victims. The last submission made by counsel is that power under Section 319 Cr.P.C. is to be used sparingly and standard of proof requires for summoning an additional accused is higher than that of a prima facie case as exercised at the time of framing of charge, therefore, there is no justification for intervention in the impugned order passed by the trial court.;